Description: Father appeals the trial court’s May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc (the 2016 Order) naming appellee Mother sole managing conservator of their two children, S.V. and S.V.1 In his first issue, Father asserts this case should be remanded for a new trial due to missing trial court exhibits. In his remaining seven issues, Father contends the trial court erred by ordering Father to pay Mother’s attorney’s fees; ordering a possession schedule that gave the children discretion to decide whether Father would have
1 The trial court’s findings of fact indicate the older of the children reached the age of eighteen earlier this year; accordingly, the provisions of the 2016 Order no longer apply to her. The younger child will not turn eighteen for approximately two years, and the provisions of the 2016 Order will apply to her until that date. Because the provisions of the 2016 Order originally applied to both children, we refer in this opinion to the “children” when addressing those provisions while understanding that only the younger child remains subject to the 2016 Order.
possession; ordering Father to add a physician to his health insurance plan who was not part of that plan’s network; ordering injunctive relief against Father; ordering an anti-suit injunction against Father that restricts his access to the courts; denying pretrial discovery and striking Father’s pleadings due to hybrid representation; and ordering child support arrearages and post-trial discovery that contradict the parties’ mediated settlement agreement. We affirm in part and reverse in part.
This is a suit affecting the parent-child relationship (SAPCR). In June 2005, the parties divorced and were named joint managing conservators of the children, with Father having expanded standard visitation. A March 22, 2012 order of the trial court (the 2012 Order) appointed Mother sole managing conservator and Father possessory conservator of the children. This appeal arises from a modification of the 2012 Order.
The catalyst for the proceedings that resulted in the modification was the events of Father’s Day of 2013. Father had possession of the children that day. When his older child received a text message originating from an unknown number, Father yelled at her not to answer and reached for the phone. In the process, he struck her across her face. The contact hurt the child and Father as well—he had a broken finger at the time—and he reacted by calling the child a “bitch” and saying he “hoped she died of cancer.” Father apologized. Afterwards, the children worked together and made a video for Father as a surprise. Testimony indicates the video showed the children laughing and singing a song to Father soon after the incident in which he had struck the older child. Father took a photograph of a white board on which the children had written lyrics of the song they had composed. According to Mother, when the children returned to her home that night and told her what had happened, they were extremely distraught.
On July 2, 2013, Mother filed an Ex Parte Emergency Motion for Extraordinary Relief and for Temporary Restraining Order and Order Setting Hearing for Temporary Orders, seeking to restrict all access to the children by Father. The trial court temporarily abated Father’s access, and then, on August 9, 2013, Mother filed a Petition to Modify Parent-Child Relationship, seeking to make the abatement permanent. Father subsequently filed a Counter-Petition to Modify Parent-Child Relationship on May 23, 2014.
In November 2015, a jury heard the issues of whether the parents’ status should be changed and attorney’s fees should be awarded. The parties presented not only evidence of the 2013 Father’s Day events, but also evidence of the troubled relationships between the parents and between Father and the children since 2012. The evidence addressed Father’s confrontations with the children’s teachers and coaches, his problematic dealings with family counselors, and the frustrations of the children due to the controlling nature of Father’s interactions with them. The older child testified she was not willing to continue a relationship with Father. The younger child did not testify at trial.
The jury found the 2012 Order should not be modified as to the parents’ status, thus maintaining Mother as sole managing conservator and Father as possessory conservator of the children. The jury also found Mother’s reasonable and necessary attorney’s fees incurred or to be incurred were $20,000 in the trial court, $10,000 on appeal to the court of appeals, and $10,000 to the Supreme Court of Texas. On May 4, 2016, the trial court signed the 2016 Order, adopting the jury’s findings and setting forth the court’s orders concerning possession, child support, and all other relevant SAPCR matters. The trial court ultimately denied Father’s amended motion for new trial, and Father filed this appeal.
When Father filed his notice of appeal and requested the reporter’s record, he learned the record did not contain two trial court exhibits: the Father’s Day video and photograph. He filed a motion for new trial in this Court, relying on Texas Rule of Appellate Procedure 34.6(f), which would entitle him to another trial if, as relevant to this case: (1) he timely requested the reporter’s record; (2) a significant exhibit was lost or destroyed through no fault of his own; (3) the lost exhibit was necessary to the resolution of his appeal; and (4) the lost evidence could not be replaced by agreement of the parties or with a copy determined by the trial court to duplicate the original evidence accurately and with reasonable certainty. See TEX. R. APP. P. 34.6(f). We ordered the trial court to “conduct a hearing to determine” each of the appellate rule 34.6(f) requirements and to file its “written findings” with this Court.
In compliance with our order, the trial court found, after an evidentiary hearing, that Father timely requested the reporter’s record, the video and the photograph had been lost or destroyed due to no fault of Father, the video and the photograph were not necessary to the appeal’s resolution, and the video and photograph could not be replaced by agreement of the parties or with a copy that accurately duplicated with reasonable certainty the original exhibits. Father contested in this Court the trial court’s finding concerning necessity of the missing exhibits to resolution of the appeal and again asked this Court to grant him a new trial. We ordered the parties to address in their briefs whether the video and photograph are necessary to the resolution of the appeal.
In his first issue, Father contends this Court cannot adequately review his appellate complaints in the absence of the lost exhibits. Specifically, he argues that in order to determine whether the trial court has abused its discretion in this case, we must determine whether its orders are supported by sufficient evidence and whether they are in the best interest of the
children. In both instances—sufficiency and best interest—Father asserts we are required to review the entire record, and the absence of the missing exhibits prevents us from doing so. Thus, he contends, he is entitled to a new trial.
Mother responds the evidence is not necessary to resolution of the appeal because there is no disagreement about what is depicted in the video and photograph. She points to testimony from both Father and the older child about the video and its contents. And she argues the exhibits were of insignificant probative value, did not sway the jury, and should be disregarded.
Father is not entitled to a new trial unless all four circumstances of appellate rule 34.6(f) are present. See Haynes v. Haynes, No. 04-15-00107-CV, 2017 WL 2350970, at *3 (Tex. App.—San Antonio May 31, 2017, no pet. h.) (mem. op.). Further, as appellant and new-trial movant, Father had the burden of establishing the missing exhibits are necessary to the appeal’s resolution. Gaston v. State, 63 S.W.3d 893, 899 (Tex. App.—Dallas 2001, no pet.). The requirement that the missing portion of the record “is necessary to the appeal’s resolution” is a harm analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999); Haynes, 2017 WL 2350970, at *3. “If the missing portion of the record is not necessary to the appeal’s resolution, then the loss of that portion of the record is harmless under the rule and a new trial is not required. Issac, 989 S.W.2d at 757.
We review a trial court’s findings under appellate rule 34.6(f), including a finding that a missing portion of the record is necessary to the appeal, for an abuse of discretion. Johnson v. State, No. 13-16-00023-CR, 2017 WL 1281391, at *1, 4 (Tex. App.—Corpus Christi Apr. 6, 2017, no pet.) (mem. op.);2 see also Estate of J.T. Neal v. River Inn Ass’n of Unit Owners, No.
2 See also Lucas v. State, No. 05-01-00078-CR, 2003 WL 21771333, at *4 (Tex. App.—Dallas Aug. 1, 2003, pet. ref’d) (not designated for publication) (reviewing trial court’s findings under rule 34.6(f) for an abuse of discretion, giving almost total deference to the trial court’s determination of historical facts that record supports); Beal v. State, No. 01-12-00896-CR, 2016 WL 1267805, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (proper standard for reviewing trial court’s findings of fact under appellate rule 34.6(f) is abuse of discretion, giving “almost total deference to a trial court’s determination of the historical facts that the record supports”) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
14-10-00307-CV, 2011 WL 238340, at *1–2 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no pet.) (per curiam) (mem. op.) (concluding, based on trial court’s findings that a record was timely requested, significant portions of the record had been lost or destroyed, missing portions of record were necessary to appeal, and missing portions or record could not be replaced by agreement, that appellants were entitled to new trial pursuant to appellate rule 34.6(f)); In re N.T.H., No. 02-02-00283-CV, 2003 WL 21284138, at *1 (Tex. App.—Fort Worth June 5, 2003, no pet.) (per curiam) (mem. op.) (same).
3 A trial court abuses its discretion when it acts without reference to any guiding rules or principles. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied) (citing Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 129 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).
In this case, both Father and the older child testified at trial and addressed the content of the missing video and photograph. Father’s counsel played the video for the jury, then asked Father whether he coerced the children into making the video. Father answered, “No, I did not. They surprised me. They told me to stay downstairs; they composed the video of a song upstairs on the white board. And then, they suddenly came down and said, get your camera we’ve got
3 The dissent argues we review de novo one of the four appellate rule 34.6(f) requirements, whether the lost exhibits are essential to the resolution of the appeal. In Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013), the court of appeals granted the defendant’s motion to abate the case because a portion of the record of voir dire was missing and ordered the trial court to conduct a hearing on the appellate rule 34.6(f) requirements. During the hearing, it was discovered that, because of a mechanical malfunction, the bench conference at which for-cause and peremptory challenges were made either was not recorded or could not be retrieved. Id. at 302. After hearing testimony from the trial lawyers about who did what during the bench conference, the trial court stated it recalled denying only one defense challenge for cause. Id. at 303. The trial court also recalled the defense then requested two additional peremptory challenges, but failed to identify an objectionable juror who would be seated if the request was denied. Id. at 303–04. Based on the evidence at the hearing as to what occurred during the unrecorded portion of the proceedings, the trial court found that the missing portion of the record was not necessary to the appeal because it memorialized no preserved error. Id. at 304.
The issue before the court of criminal appeals was whether the trial court, in determining whether the missing portion of the record was necessary to the resolution of the appeal, could rely upon its personal recollection of “something that happened or did not happen in the unrecorded proceeding.” Id. at 305–06. The court first concluded the requirement that the missing portion of the record be essential to the resolution of the appeal was concerned with “whether the missing record needs to be replaced,” and when the trial court’s recollection is “clear and shows that the missing portion of the record would not affect the appeal, the reason for the enactment of the third requirement becomes apparent.” Id. at 306. The court of criminal appeals concluded that, under the circumstances present in Nava, the “court of appeals was correct to credit the trial [court’s] recollection as it related to the question of whether the missing record was necessary to the resolution of the appeal.” Id.
Under Nava, it is the role of the trial court to determine, based on what occurred at trial, if the missing portion of the record is essential to the resolution of the appeal. We review that finding, along with any other findings under appellate rule 34.6(f), in reaching a conclusion regarding whether the appellant has met his burden of showing he is entitled to a new trial. See Lucas, 2003 WL 21771333, at *4 (reviewing de novo trial court’s application of law to facts and any mixed question of law and fact that did not turn on evaluation of credibility and demeanor); Beal, 2016 WL 1267805, at *6 (reviewing de novo trial court’s conclusion of law that the appellant was entitled to a new trial); Roman v. State, No. 08-13-00019-CR, 2014 WL 886877, at *2 (Tex. App.—El Paso Mar. 5, 2014, no pet.) (not designated for publication) (appellate court reviews de novo whether inaudible portions of transcript warrant new trial under appellate rule 34.6(f)).
something for you.” Counsel then asked Father a general question about the children’s moods, and, after Father’s answer, asked him, “Would you be surprised if just a couple of hours after that video recording they’re throwing themselves on the floor at their mother’s house saying they hate you and never want to see you again?” Father answered that he did not understand why they would have done that.
On direct examination, Father’s counsel asked the older child whether Father had apologized for hitting her in the face on Father’s Day 2013. She said he did apologize. Counsel asked whether the children did anything to celebrate Father’s Day with him after he apologized. The child answered, “Well, yeah, we did. Afterwards, we made a video. It was common for us to make videos at his house like singing to him for Father’s Day. We did that after that whole incident happened. I was just so relieved that it was over, I guess. . . . I guess his anger was done with. I was just trying to keep him happy, I guess.”
On redirect examination by different counsel, the child testified about the content of the missing photograph. The child said the photograph showed lyrics of the song the children performed for Father, and the lyrics included the words, “we love you.” The child also testified the children were smiling and laughing with each other when they performed the song, but that she did not want to have another Father’s Day like the one in 2013.4
The dissent would require a new trial unless the missing exhibits are duplicative, cumulative, or illustrative of other evidence. We do not read rule 34.6(f) so narrowly. See Issac, 989 S.W.2d at 757 (disagreeing with contention that “harm analysis cannot apply because an incomplete record, by virtue of its incompleteness, does not contain the data necessary to
4 At the evidentiary hearing regarding the missing exhibits, Father’s trial attorney stated the video “was basically a skit that [Father’s] two daughters had prepared on Father’s Day. They had essentially a song, and you can see in the back there was a whiteboard where they wrote out the lyrics and they were singing and dancing. . . . [W]e have this video taken maybe two, three hours [after Father yelled at his older daughter and struck her across the face] where they were smiling and laughing and singing and dancing and saying, ‘Dad, we love you.’” Father’s other trial attorney also stated the photograph was “basically a dry erase board which had the lyrics or at least part of the lyrics from the video we have been discussing. . . . [It] contained maybe, like, the chorus or the portion of the lyrics that would be repeated throughout the video.”
determine whether harm has occurred”); Landry’s Seafood House-Addison, Inc. v. Snadon, 233 S.W.3d 430, 437 (Tex. App.—Dallas 2007, pet. denied) (determining missing portion of record was not essential to resolution of appeal because it did not concern any issue raised by appellant). Indeed, determining an appellant bringing a sufficiency challenge in a civil case is entitled to a new trial solely because any portion of the record is missing would eviscerate the appellate rule 34.6(f) requirements that the missing portion be significant and be essential to the resolution of the appeal. See Issac, 989 S.W.2d at 757 (“Although the lack of a record may in some cases deprive an appellate court of the ability to determine whether the absent portions are necessary to the appeal’s resolution, an automatic rule of reversal is not justified.”).
The testimony by Father and the child sufficiently informs us as to the content of the video and the photograph. We need not have a word-for-word transcription of the lyrics of the song or a video of the children singing to understand what these exhibits showed and the purpose for which they were offered by Father. Simply put, the record is adequate without the exhibits to allow us to analyze the legal and factual sufficiency of the evidence in considering whether the trial court abused its discretion by rendering the 2016 order.5 Accordingly, we conclude the trial court did not abuse its discretion by finding the missing exhibits are not necessary to the resolution of Father’s appeal. See TEX. R. APP. P. 34.6(f)(3); see, e.g., First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 617 (Tex. App.—Corpus Christi 1993, writ denied) (“The witness’s testimony is fully and accurately reflected in the record; we do not therefore find the drawings merely illustrating that testimony dispositive to our analysis of the case.”); Cox v. Six Flags Over Tex., Inc., No. 05-97-00545-CV, 2000 WL 276894, at *3 (Tex. App.—Dallas Mar. 15, 2000, no pet.) (not designated for publication) (missing exhibit containing interrogatory and
5 In this issue, Father argues only that, without the missing exhibits, neither he nor this Court can analyze the sufficiency of the evidence to support the jury’s verdict as to conservatorship and the award of attorney’s fees or the trial court’s findings relating to Father’s access to the children and the best interest of the children and does not raise any substantive complaint regarding the 2016 Order.
answer that were read into record was “not essential to the record or appeal because it would duplicate the testimony in the record”). Therefore, Father has failed to establish he was harmed by their loss. See Issac, 989 S.W.2d at 757; Dunn v. Bank-Tec S., 134 S.W.3d 315, 330 (Tex. App.—Amarillo 2003, no pet.).
Because Father failed to carry his burden of establishing the missing exhibits are necessary to the appeal’s resolution, see Gaston, 63 S.W.3d at 899, we deny his motion for new trial and resolve his first issue against him.
In his second issue, Father challenges the legal and factual sufficiency of the evidence supporting the jury’s award of attorney’s fees to Mother. The jury found that Mother reasonably and necessarily incurred $20,000 in attorney’s fees in the trial court and that she would reasonably and necessarily incur fees of $10,000 for representation both in this Court and in the supreme court if appeals were taken.
An attorney’s fees award in a suit affecting the parent-child relationship lies within the sound discretion of the trial court. Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (citing TEX. FAM. CODE ANN. § 106.002 (West 2014)). In family law cases, legal and factual sufficiency challenges are not independent grounds of reversible error; instead, they constitute relevant factors that aid in assessing whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). Therefore, we consider first whether the trial court had sufficient evidence upon which to exercise its discretion, and then whether it erred in its application of that discretion. In re Marriage of C.A.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.).
In determining the reasonableness of an award of attorney’s fees, the court considers the time spent by the attorney on the case, the nature of the attorney’s case preparation, the
complexity of the case, the experience of the attorney, and the prevailing hourly rates. See In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.); Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.—Dallas 2005, no pet.). But evidence on each factor is not necessary to determine a reasonable award. In re M.A.N.M., 231 S.W.3d at 567. The trial court may also consider the entire record and the common knowledge of the participants as lawyers and judges in making its determination. Sandles, 163 S.W.3d at 838; Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.—Amarillo 2002, no pet.).
Mother’s attorney, Stephen Skinner, testified he had been licensed to practice law in Texas since 1994. According to Skinner, he was hired approximately one year before his testimony, and he had attended thirty-nine hearings on the case during that time, more than he had ever experienced in his many years of practice. He testified further that his contract with Mother called for her to pay his reasonable and necessary fees at a rate of $250 an hour, and that he was familiar with fees charged by attorneys in the North Texas area in family law cases. Skinner described the activity in the case as “spiraled off the charts,” and asserted he had invested seventy-two and one-half hours through trial. Along with preparing for and attending the many hearings, he had responded to discovery from Father and from Father’s attorney (including three requests for production, a request for disclosure, and interrogatories), attended Mother’s deposition and the mediation, and oversaw voluminous communications with Father and his attorneys. He testified he had produced to Father an invoice through July of 2015, acknowledging that portions of the invoice were redacted. Estimating his time for post-trial motions and orders, Skinner sought an award compensating him for seventy-six and one-half hours. He testified further that he had incurred costs of $565. In sum, Skinner requested an award of $19,690 for trial-court fees and costs. He also asked for fees of $10,000 each for successful appeals to this Court and to the supreme court.
Father argues Skinner’s testimony is vague and provides no specific information concerning individual tasks that he undertook on behalf of Mother. He also complains Skinner’s invoice is so heavily redacted that he cannot glean any information concerning work actually performed. He contends Skinner failed to specifically state the tasks he performed were reasonable and necessary or that his hourly rate was reasonable. As to the request for appellate attorney’s fees, Father complains Skinner’s testimony contained no supporting detail, but was simply a request for amounts certain.
Skinner testified concerning the total amount of time he spent on the case, the extraordinary number of hearings he was required to prepare for and attend, his twenty-two years of experience—primarily in family law—in matters across North Texas, and the hourly fee Mother agreed to pay for reasonable and necessary work. His testimony was not contradicted by any other witness and was clear, positive, direct, and free from contradiction. See In re Moore, 511 S.W.3d 278, 288 (Tex. App.—Dallas 2016, no pet.) (testimony from party’s attorney about fees will be taken as true as matter of law if not contradicted by any other witness and is clear, positive, direct, and free from contradiction). We conclude Skinner offered sufficient reliable evidence for the trial court—possessing the knowledge of a family court judge—to evaluate adequately the jury’s findings. Finally, we discern no abuse of discretion in the trial court’s application of its discretion by awarding Mother attorney’s fees in accordance with the jury’s verdict.
We resolve Father’s second issue against him.
Father’s Right to Possession of Children
In his third issue, Father contends the trial court erred by ordering a possession schedule that gives the children complete control over his access to them. We review a trial court’s modification of a parent’s possession of a child for an abuse of discretion. Niskar v. Niskar, 136
S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). The best interest of the child must always be the primary consideration of the court in determining issues of conservatorship and possession. Id. at 755.
The 2016 Order provides Father “shall have the right to possession of the child only at such times as are agreeable to the child or children.” In addition, Mother’s “obligation to surrender the children to [Father] shall be conditioned upon the children’s expressed desire for [Father] to exercise any such possession period.” Should the children express such a desire, Father is granted possession for three hours, on the first and third Saturdays of the month, in a public place. The time and place of Father’s possession is to be determined by the children. Father argues this order is unenforceable, improperly restricts his access to the children, and represents an improper delegation of the trial court’s authority to the children.
Father relies upon a series of cases in which one parent has been given complete control over possession of children by the other parent. See, e.g., In re Marriage of Collier, 419 S.W.3d 390, 398–99 (Tex. App.—Amarillo 2011, pet. denied) (court’s possession order provides father’s “visitation with the child shall be at the discretion of [mother]”). Courts have concluded that giving one parent sole authority over the other parent’s possession of a child can effectively deny access to the child. In re A.P.S., 54 S.W.3d 493, 498 (Tex. App.—Texarkana 2001, no pet.). Moreover, placing all control over possession in one parent’s discretion leaves the other parent without the remedy of contempt if possession is denied. Id. Father argues the trial court thus impermissibly delegated its authority to fashion a possession schedule to children who may simply refuse to see him.
Mother points to the first factor in the often-cited Holley test, which instructs the trial court to consider the desires of the child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (identifying non-exclusive list of nine factors when considering best interest of child in parental
6 But she identifies no legal authority, and we have found none, that takes consideration of a child’s desires to the extreme of granting that child—no matter how mature—complete discretion over possession by a parent.
The trial court was required to appoint Father as possessory conservator unless it found the appointment was not in the best interest of the children and Father’s possession or access would endanger the physical or emotional welfare of the children. TEX. FAM. CODE ANN. § 153.191 (West 2014). Although it is the public policy of Texas to encourage frequent contact between child and parent, id. § 153.251(b), the trial court may impose restrictions on a parent’s possession or access to a child, id. § 153.193. Those restrictions, however, may not exceed what is necessary to protect the best interest of the child. Id. If the trial court determines the standard possession order is not appropriate for a possessory conservator, it has two options: (1) restrict possession or access in a way that eliminates any danger to the physical or emotional welfare of the child; or (2) deny possession and access if it is not in the best interest of the child. In re Walters, 39 S.W.3d 280, 286 & n.2 (Tex. App.—Texarkana 2001, no pet.). “[C]omplete denial of access should be rare.” Id. at 287. And when a trial court intends to deny possession or access, the denial “should be ordered in plain, unambiguous language.” Id. at 288.
The trial court ordered a possession schedule allowing Father possession of the children for three hours, every other Saturday of the month, and limited the access to a public place. The trial court appears to have used this restricted access to minimize concerns of physical or emotional danger to the children. However, by placing this restricted access entirely within the control of the children, the trial court created the potential for a denial of all access and gave
6 The bulk of Mother’s argument relies on an article in the Texas Bar Journal concerning custody “in a case where each parent is a suitable choice to have primary custody.” Hon. Donald Dowd, Best Interest Using the Holley Factors in Child Custody Cases, 79 Tex. B.J. 810 (2016). Nothing in the record before us reflects a belief by Mother that both she and Father are suitable choices to have primary custody.
Father no ability to enforce the order by contempt. We conclude this was an abuse of the trial court’s discretion.
We resolve Father’s third issue in his favor and reverse the portion of the 2016 Order addressing Father’s possession and access to the children. We remand the case in part and instruct the trial court to sign a custody order consistent with this opinion that either articulates appropriate times and conditions for Father’s access to the children or, should the evidence support such a decision, completely bars him from access to the children.
Impossibility of Performance
In his fourth issue, Father contends the trial court erred by ordering him to add a physician to his health insurance plan who is not part of the plan’s network. On November 2, 2015, the trial court granted Mother’s request to add the children’s physician, Dr. Darla J. Kincaid, as an authorized provider on Father’s BlueCross BlueShield health insurance plan. The trial court ordered both Mother and Father to “cooperate fully with this addition and changes to [Father’s] insurance plan” and that the changes be made within three business days of the entry of the order.7
At trial, Mother testified that, when she took the children to “the pediatrician who was on the insurance,” she was told she needed “to call the insurance company and put their pediatrician who was Dr. [Kincaid] on the list. They say that Dr. [Kincaid] was their pediatrician otherwise the insurance wouldn’t cover it.” Mother asked Father to “do that,” but Father refused, stating she needed to use his physician. Mother was required to “get an order for him to put their pediatrician on the insurance.” Father admitted that two days before trial, the trial court ordered him to put Dr. Kincaid on his plan. He testified he “went on the website” to add Dr. Kincaid to
7 Mother’s motion and any pretrial hearing relating to it do not appear to be included in the record on appeal. To the extent these pretrial proceedings are necessary to determine whether the trial court reversibly erred, it was Father’s responsibility to provide us with those items. See TEX. R. APP. P. 33.1; Donahoe v. Jones, No. 01-15-00191-CV, 2016 WL 796892, at *3 n.2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2016, no pet.) (mem. op.).
his healthcare insurance plan, but could not find her listed as one of the doctors on the website. Father did not call BlueCross BlueShield to discuss whether Dr. Kincaid could be added to Father’s healthcare insurance plan.
In the 2016 Order, the trial court required Father to “add [Dr. Kincaid] to his BlueCross BlueShield or current healthcare insurance plan that provides medical insurance for the children.” Father argues it is impossible for him to add Dr. Kincaid to his health insurance plan because she is not a member of the provider network.
There was evidence at trial that Dr. Kincaid was “on the insurance” and, therefore, part of Father’s healthcare plan’s provider network. Father, however, refused to cooperate in naming Dr. Kincaid as the children’s primary care physician because he preferred the children be seen by his own physician. Although Father testified he could not find Dr. Kincaid’s name on the BlueCross BlueShield website, he admitted he had not called the company for assistance in having Dr. Kincaid named as the children’s primary care physician.
There was conflicting evidence at trial regarding whether Dr. Kincaid was included in Father’s healthcare plan’s provider network. When the testimony of witnesses is conflicting, we will not disturb the credibility determinations made by the trial court as the factfinder. Syed v. Masihuddin, No. 01-16-00071-CV, 2017 WL 2180718, at *7 (Tex. App.—Houston [1st Dist.] May 18, 2017, no pet.); see also In re S.C., No. 05-15-00873-CV, 2016 WL 4010911, at *3 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.). Further, we presume the trial court resolved any conflict in favor of its judgment. Syed, 2017 WL 2180718, at *7. On this record, we cannot conclude that Father established it was impossible for him to comply with the trial court’s order.
We resolve Father’s fourth issue against him.8
8 We note, however, that Father is not precluded from raising impossibility of performance as a defense in any proceeding in which Father is alleged to have failed to comply with this portion of the 2016 Order. See Snodgrass v. Snodgrass, 332 S.W.3d 653, 661 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
In a section entitled Injunctive Relief, the 2016 Order includes a list of ten activities from which Father is permanently enjoined “because of [his] conduct.” In his fifth issue, Father divides the ten injunctions into two groups. Father alleges the first group of injunctions consists of unconstitutional restrictions on his right of free speech and the evidence is legally and factually insufficient to support the trial court’s findings supporting the injunctive relief. Father contends the second group of injunctions is not supported by legally and factually sufficient evidence. As with any other provision of a SAPCR order, we review a permanent injunction contained within the order for an abuse of discretion. See Peck v. Peck, 172 S.W.3d 26, 36 (Tex. App.—Dallas 2005, pet. denied).
Injunctive Orders Involving Speech
In the 2016 Order, the trial court permanently enjoined Father from:
1. Contacting the children’s teachers and/or coaches. It is ordered that, if [Father] wishes to communicate with the children’s school it shall be done through the Assistant Superintendent of Coppell Independent School District, Mr. Brad Hunt, his successor, or his appointed designee;
5. Communicating with [Mother] or the children in person, by telephone, or in writing in vulgar, profane, obscene, or indecent language or in a coarse or offensive manner;
6. Threatening [Mother] or the children in person, by telephone, or in writing to take unlawful action against any person;
7. Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication; and
9. Threatening [Mother] or the children with imminent bodily injury.9
Father argues the trial court erred by imposing these restrictions on him because the injunctions constitute an impermissible prior restraint on his right to free speech under article I, section 8 of
9 The numbering of the injunctions in this grouping is taken from the 2016 Order.
the Texas Constitution;
10 the evidence is legally and factually insufficient to support the trial court’s finding these injunctions were in the best interest of the children or any findings by the trial court that (1) the injunctions were necessary due to an imminent and irreparable harm to the judicial process that would deprive the litigants of a just resolution of their dispute, or (2) the injunctions represent the least restrictive means to prevent that harm;11 and even if the trial court made those findings, “the record is devoid of any supporting evidence.”
In the trial court, Father filed an amended motion for new trial, a motion for reconsideration, and a motion to clarify final order. As to the permanent injunctions ordered by the trial court, Father asserted in his motion for new trial that there was “legally and factually insufficient evidence to issue Permanent Injunctions” against him. In his amended motion for reconsideration, Father contended that there was “[n]o legally or factually sufficient evidence . . . to warrant ANY of these Permanent Injunctions.” Specifically as to the injunction prohibiting Father from directly contacting the children’s teachers or coaches, Father also argued the injunction contravened section 153.073(a) of the family code;12 the trial court did not have jurisdiction over Hunt; and because “gag orders” are “valid only when an imminent and irreparable harm to the judicial process will deprive litigants of just resolution of their dispute, and the judicial action represents the least restrictive means to prevent that harm,” such orders must be supported by evidence and a specific finding, and “[n]o legally or factually sufficient
10 Article I, section 8 provides:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
TEX. CONST. art. I, § 8.
11 Father notes the trial court failed to make these specific findings, but has not raised an issue on appeal regarding the trial court’s failure to do so and has provided no substantive briefing regarding any error by the trial court in failing to make the specific findings. See TEX. R. APP. P. 38.1(i) (appellant’s brief must contain “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). Father, therefore, has waived any complaint about the trial court’s failure to make the specific findings. See id.; Edwards v. City of Tomball, 343 S.W.3d 213, 223 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (appellant waived complaint that trial court erred by refusing to enter findings of fact and conclusions of law by failing to brief argument on appeal).
12 Section 153.073(a) addresses the rights of a parent appointed as a conservator of a child. TEX. FAM. CODE ANN. § 153.073(a) (West 2014).
evidence was presented to the Court by [Mother] that can gag [Father] from communicating with children’s teachers and/or coaches.” Finally, in his motion to clarify, Father requested the injunction preventing him from contacting the children’s teachers or coaches be modified to apply only to communications by email or telephone.
To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion or objection, state the specific grounds therefor, and obtain an adverse ruling. TEX. R. APP. P. 33.1(a)(1). Even constitutional claims must be preserved for appellate review. In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.”). Father did not argue in the trial court that any of the injunctions in the trial court’s order constituted a prior restraint on his right to free speech under article I, section 8 of the Texas Constitution and, therefore, has failed to preserve that argument for appellate review. See TEX. R. APP. P. 33.1(a); Topletz v. City of Dallas, No. 05-16-00741-CV, 2017 WL 1281393, at *5 (Tex. App.—Dallas Apr. 6, 2017, no pet.) (mem. op.) (appellant waived complaint that temporary injunction imposed an unconstitutional prior restraint on free speech by failing to raise issue in trial court).
We next turn to Father’s contention the evidence is legally and factually insufficient to support the trial court’s finding the ordered injunctive relief was in the children’s best interest or any findings that (1) the injunctions were necessary due to an imminent and irreparable harm to the judicial process that would deprive the litigants of a just resolution of their dispute, or (2) the injunctions represent the least restrictive means to prevent that harm. These issues are embedded, without substantive analysis, in Father’s complaints about the constitutionality of the permanent injunctions.
The Texas Rules of Appellate Procedure control the required contents and organization of an appellant’s brief. See TEX. R. APP. P. 38.1; ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). An appellant’s brief must concisely state all issues or points presented for review and, among other things, must contain a clear, concise argument for the contentions made, with appropriate citations to authorities and to the record. TEX. R. APP. P. 38.1(i). We may not speculate as to the substance of the specific issues asserted by an appellant and may not make a party’s argument for him. Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Bare assertions of error, without argument or authority, waive any error. In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.); see also Fredonia State Bank v Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing error may be waived by inadequate briefing).
In his brief, Father provided no legal authority, citation to the record, or substantive analysis pertaining to his complaint the evidence is legally and factually insufficient to support the trial court’s findings relating to the best interest of the children or any findings by the trial court that (1) the injunctions were necessary due to an imminent and irreparable harm to the judicial process that would deprive the litigants of a just resolution of their dispute, or (2) the injunctions represent the least restrictive means to prevent that harm. Accordingly, these complaints have not been preserved for our review. See TEX. R. APP. P. 38.1(i); First Bank Tex., SSB v. W.D. Welch, P.C., No. 05-16-00403-CV, 2017 WL 2443132, at *3 (Tex. App.—Dallas June 5, 2017, no pet.) (mem. op.).
Injunctive Orders Involving Conduct
Father also complains the evidence is insufficient to support the injunctions prohibiting him from:
2. Disturbing the children or [Mother] or interfering in any way with [Mother’s] possession of the children by taking or attempting to take possession of the children, directly or through any other person, from the children’s residence, school, or any other place;
3. Withdrawing the children from enrollment in the school or day-care facility where the children are presently enrolled or where they may be enrolled in the future;
4. Cancelling, altering, failing to pay premiums or in any manner affecting the present level of coverage of any health insurance policy insuring the children;
8. Causing bodily injury to [Mother] or to the children;
10. Removing the children from the jurisdiction of the Court without [Mother’s] prior written consent or further orders of the Court.13
Father specifically argues these injunctions are not supported by legally or factually sufficient evidence establishing the four general prerequisites of injunctive relief: the existence of a wrongful act, imminent harm, irreparable injury, and the absence of an adequate remedy at law. However, injunctions contained in a SAPCR order need not meet these prerequisites. Peck, 172 S.W.3d at 35–36 & n.8 (citing TEX. FAM. CODE ANN. § 105.001 (West 2014)).
The 2016 Order states the complained-about injunctions are based on Father’s conduct, so we consider whether there is evidence that Father has engaged in the enjoined forms of conduct. The record contains undisputed evidence that Father struck one of the children in the face at least once. The remaining acts proscribed here would constitute violations of Father’s obligations or restrictions stated elsewhere in the 2016 Order: providing health insurance for the children, obtaining consent before traveling with the children, his limited right to possession, and Mother’s right to choose the children’s school. Father has not challenged these terms on appeal; he has, in effect, agreed to abide by them. Accordingly, we conclude the trial court did not abuse its discretion in incorporating these prohibitions into the 2016 Order.
13 The numbering of the injunctions in this grouping is taken from the 2016 Order.
We resolve Father’s fifth issue against him.
In his sixth issue, Father contends the trial court erred by ordering an anti-suit injunction against him. The trial court included the following paragraph in the 2016 Order:
Future Litigation by [Father]
IT IS FURTHER ORDERED that in the event [Father] should initiate any future litigation against [Mother], other than for child support modification and for purposes of enforcement of this Court’s orders, [Father] is ORDERED to pay the attorney’s fees for both parties, and immediately upon filing such action, shall pay to [Mother] or her attorney the sum of $5,000.00 as attorney’s fees.
The trial court subsequently signed both a finding of fact stating this provision was in the best interest of the children and a conclusion of law stating the provision was supported by the evidence and is in the best interest of the children. Although we disagree with Father that this provision operates as an injunction against filing suit, it does interfere with his ability to participate as a party in the ongoing SAPCR, and it purports to extend that interference to “any future litigation.”
A trial court may award attorney’s fees in a modification suit; we have discussed, and approved, the 2016 Order’s award of attorney’s fees to Mother for this suit and upon appeal. But we find no authority for either (a) an award of $5,000 for attorney’s fees upon filing of any proceedings, or (b) assigning the obligation of both parties’ attorney’s fees in any future proceeding to Father. The former award runs contrary to the requirement that attorney’s fees be reasonable and necessary given the work done, see El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012) (discussing lodestar method of calculating attorney’s fees), and the trial court has not identified any legal basis for the latter requirement.
Attorney’s fees can be awarded as a sanction in a modification proceeding. See TEX. FAM. CODE ANN. § 156.005 (West 2014) (“If the court finds that a suit for modification is filed
frivolously or is designed to harass a party, the court shall tax attorney’s fees as costs against the offending party.”). However, such an award requires the judge to make a finding that the suit was filed frivolously or to harass another party. Id. It is impossible to make such a finding for a hypothetical suit that may be filed in the future.
If the trial court intended, as Mother argues, to address Father’s “litigation tactics” by this injunction, it had other tools with which to work. If Father files a frivolous or harassing lawsuit or request for modification, sanctions are available. See, e.g., TEX. FAM. CODE ANN. § 156.005; TEX. CIV. PRAC. & REM. CODE ANN. § 10.004 (West 2002); TEX. R. CIV. P. 13. Or if Father files individual pleadings or motions or discovery requests that are frivolous or harassing, sanctions are available. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 10.004; TEX. RS. CIV. P. 13, 215. If Father is a vexatious litigant, procedures exist for addressing that conduct. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.054 (West Supp. 2016). But we conclude imposing sanctions on future conduct—regardless of its merits—as this provision does, is an abuse of discretion.
We resolve Father’s sixth issue in his favor and strike the above-quoted paragraph from the 2016 Order.
In his seventh issue, Father asserts the trial court erred by denying pretrial discovery and striking his pleadings due to hybrid representation. Hybrid representation is described as representation in court by means of “both [self-representation] and by counsel acting at the same time or alternating at defendant’s pleasure.” Landers v. State, 550 S.W.2d 272, 278–79 (Tex. Crim. App. 1997) (op. on reh’g) (quoting People v. Hill, 452 P. 2d 329, 336 (Cal. 1969)). Specifically, Father asserts the trial court abused its discretion by striking his amended pleading and request for production filed and served, respectively, by Father while he was represented by an attorney, C. “Luke” Gunnstaks.
Gunnstaks filed a notice of appearance as Father’s counsel on May 29, 2015, which stated he “shall be acting as attorney for [Father] in this pending modification suit henceforth until further order of the Court.” While represented by Gunnstaks, Father filed pro se an Amended Counter-Petition to Modify Parent-Child Relationship on August 28, 2015, and on September 10, 2015, he served pro se his Third Request for Production and Inspection on Mother.14 Gunnstaks filed a motion to withdraw as counsel on October 8, 2015, and an order granting his withdrawal as Father’s counsel was signed by the trial court on October 9, 2015.
On October 12, 2015, Mother filed Objections to [Father]’s Third Request for Production, in which she objected to the discovery because, at the time of Father’s service of his request for production, he was represented by an attorney, and Father’s hybrid representation is prohibited by the rules of civil procedure. Father served pro se a trial subpoena on Mother’s counsel on October 15, 2015, requesting production of the same documents that were the subject of Father’s Third Request for Production, to which Mother had objected based on Father’s hybrid representation. On October 29, 2015, Mother filed her Objections and Motion to Strike Father’s August 28, 2015 Amended Counter-Petition to Modify Parent-Child Relationship, based on the filing of that pleading by Father while represented by an attorney.15 On October 29, 2015, Mother also filed her Motion for Protective Order, in which she asserted the October 15, 2015 trial subpoena is “an exact duplicate” of Father’s Third Request for Production served at a time of hybrid representation on October 12, 2015.16 On November 3, 2015, the trial court signed
14 Father also filed this written discovery with the trial court.
15 Mother also objected to Father’s Second Amended Petition to Modify Parent-Child Relationship filed by Father on October 15, 2015, after withdrawal of counsel, on the basis the pleading was filed after the September 7, 2015 pleading deadline contained in the July 1, 2015 pretrial scheduling order. The Second Amended Petition to Modify Parent-Child Relationship is not subject of Father’s issue concerning hybrid representation, as he was no longer represented by counsel at the time he filed that pleading.
16 In her Motion for Protective Order, Mother referenced an October 6, 2015 hearing at which the trial court purportedly ordered that Mother was not required to respond to Father’s Third Request for Production because at the time Father served that discovery, he was represented by counsel, and Father was engaged in prohibited hybrid representation. Although the record on appeal does not contain a transcript of an October 6, 2015 hearing, we note that at the November 3, 2015 pretrial hearing, the trial court stated the following:
orders granting Mother’s objections and motion to strike Father’s Amended Counter-Petition to Modify Parent-Child Relationship filed August 28, 2015, and granting Mother’s motion for protective order and ordering that Mother was not required to produce documents requested by Father in the trial subpoena duplicating written discovery served pro se by Father while he was represented by counsel.
We review a trial court’s determination of whether to allow hybrid representation for an abuse of discretion. See Smith v. Smith, 22 S.W.3d 140, 153 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (op. on reh’g); see also In re Sondley, 990 S.W.2d 361, 362 (Tex. App.—Amarillo 1999, orig. proceeding) (per curiam). A trial court abuses its discretion when it reaches a result so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009).
In civil cases, a party is entitled to represent himself or to be represented by an attorney. TEX. R. CIV. P. 7. However, a party is not entitled to representation partly by counsel and partly pro se. Davis v. Office of the Attorney Gen. of Tex., No. 05-15-00525-CV, 2016 WL 3854085, at *2 (Tex. App.—Dallas July 13, 2016, no pet.) (mem. op); In re T.L.B., No. 05-13-01671-CV, 2015 WL 1850995, at *2 (Tex. App.—Dallas Apr. 23, 2015, no pet.) (mem op.); In re Sondley, 990 S.W.2d at 362.
Consequently, the trial court was under no mandatory duty to accept and consider pleadings filed pro se by Father or to overrule Mother’s objections to discovery served pro se by Father during the period he was represented by an attorney. See In re Sondley, 990 S.W.2d at 362 (trial court is under no mandatory duty to accept or consider pleading filed pro se by party who is represented by counsel). Father has not shown the trial court abused its discretion by
Well, I understand that there’s no written order to [Father] that he should not file pleadings pro se while he was represented by counsel. I specifically told [Father] that he was not to file pleadings while he was represented by counsel nor should he be calling the coordinator and setting up hearings that that was for his attorney to do. And I believe he did violate that order. I may not was [sic] reduced to writing, but I do believe he violated that order.
striking his Amended Counter-Petition to Modify Parent-Child Relationship or by granting Mother’s motion for protective order and ordering that Mother was not required to produce documents requested by Father in the trial subpoena that were duplicative of his Third Request for Production.
We resolve Father’s seventh issue against him.
Orders Contradicting the Parties’ Mediated Settlement Agreement
In April of 2015, seven months before trial, the parties mediated this case. They agreed Father would provide health insurance for the children. They also agreed to Father’s child support payments going forward and, as a result, agreed to forego further discovery by either party concerning financial information. In his eighth issue, Father argues the trial court erred (a) by ordering Father to pay child support arrearages and (b) by allowing post-trial discovery, both of which conflict with the parties’ Mediated Settlement Agreement (the MSA). A trial court has no authority to enter a judgment that varies from the terms of the parties’ mediated settlement agreement. Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex. App.—Dallas 2004, no pet.). The trial court abuses its discretion by including provisions in a final order that are contrary to a mediated settlement agreement. Id.17
Father acknowledges he agreed to pay $750 monthly in child support until the litigation was resolved, at which point, he would begin paying $1,118.72 monthly. He argues the litigation was not resolved until the trial court signed its first order in March 2016. The 2016 Order, however, ordered Father to begin the increased child-support payment in December 2015, which meant an arrearage existed for the months of December through March, when the final order was signed. The relevant portion of the MSA states: “Father will pay child support of
17 The only exception to this rule is if the trial court finds one party to the mediated settlement agreement is a victim of family violence and impaired in his ability to make decisions and the agreement is not in the best interest of the child. TEX. FAM. CODE ANN. § 153.0071(e–1) (West 2014). The trial court made no such finding in this case.
$1,118.72/month beginning the month following resolution of this litigation by settlement and/or final trial, notwithstanding any or all appeals.” (Emphasis added.) We conclude the MSA unambiguously refers to trial or settlement as the point in litigation when child support payments would increase. The 2016 Order complies with that term of the MSA. The trial court did not abuse its discretion by ordering the increased level of child support to begin in the month following trial. We resolve this portion of Father’s eighth issue against him.
Father also argues the trial court erroneously allowed post-trial discovery of his financial affairs when the MSA “permanently abated” such discovery. We have already concluded, and informed the parties, that we lack jurisdiction to consider this issue. See Bahar v. Lyon Fin. Servs., 330 S.W.3d 379, 388 (Tex. App.—Austin 2010, pet. denied) (“Post-judgment orders regarding discovery disputes are not final, appealable judgments over which this Court has jurisdiction.”). Accordingly, we dismiss this portion of Father’s eighth issue.
Outcome: We deny Father’s motion for new trial based upon lost exhibits. We reverse the portion of the trial court’s May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc concerning Father’s possession of or access to the children and remand for the trial court to sign a possession order consistent with this opinion, and we strike the paragraph in the Order titled Future Litigation by [Father]. In all other respects, we affirm the trial court’s May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc.