Bois v. Williams
| Decision Date | 28 April 2011 |
| Docket Number | NO. 01-10-00074-CV,01-10-00074-CV |
| Parties | JACQUELINE C. DU BOIS, Appellant v. ARTHUR WILLIAMS, Appellee |
| Court | Texas Court of Appeals |
Dr. Jacqueline C. Du Bois appeals an order modifying her parent-child relationship with her son entered after her ex-husband, Arthur Williams, moved for the modification after their divorce. After settling part of the dispute throughmediation, the trial court held a bench trial on the remaining issues. Dr. Du Bois raises seven issues in this appeal, asserting that the trial court violated her equal protection rights, denied her right to a jury trial, granted Mr. Williams too much control over their son's estate, failed to hold Mr. Williams in contempt, failed to award her sanctions for Mr. Williams's and his attorney's actions during discovery, forced her to mediation, and failed to consider the best interest of the child. We affirm.
After Dr. Du Bois and Mr. Williams were divorced in 2002, Mr. Williams filed this suit affecting the parent-child relationship, seeking to modify the terms of possession and access to the couple's son. The parties also filed various other motions seeking to enforce provisions of the original decree of divorce, including motions for contempt.
The modification was resolved in part by a mediated settlement agreement. The remaining issues were tried to the trial court. The trial court entered its order modifying the parent-child relationship in December 2009, at which time it also denied the motions to enforce, stating it was not in the best interest of the child "to find either parent in contempt of court at this time."
In her first issue, 1 Dr. Du Bois contends that the trial court's order that she, a divorced, African American, female Kansas resident, install "surveillance equipment in [her] private home" is an "equal protection violation under both the U.S. Constitution and the Texas constitution."2
The trial court's order provides:
Equal protection provides that "all persons similarly situated should be treated alike." Sanders v. Palunsky, 36 S.W.3d 222, 224-25 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3253-54 (1985)). There are two elements that a person claiming an equal protection violation must show: (1) the person was treated differently than other similarly-situated persons; and (2) the person was treated differently without a reasonable basis. Id. at 225.
Dr. Du Bois does not address either of these elements. She does not identify any similarly situated persons or how she was treated differently than those persons. Nor does she address whether there was a reasonable basis for her to be treated differently. Additionally, the portion of the order that she asserts is an equal protection violation applies equally to both her and Mr. Williams; they are not treated differently. We have reviewed the record and found no support for either of the elements of an equal protection claim. Accordingly, we conclude that she has not shown an equal protection violation.3
We overrule Dr. Du Bois's first issue.
In her second issue, Dr. Du Bois contends that she was denied her right to a jury trial and that she did not waive the right to a jury trial.
In her brief, Dr. Du Bois specifically asserts that the trial court erred when it "concluded that all issues, including the contempt allegations" should be decided by the trial court and not a jury. Dr. Du Bois attended mediation and signed a "Binding Mediated Settlement Agreement" that covered the entire dispute between the parties except for the motions for sanctions and for contempt. Concerning the contempt allegations, "[t]here is no absolute right to a jury trial in a contempt proceeding." In re Hammond, 155 S.W.3d 222, 226 (Tex. App.—El Paso 2004, orig. proceeding) (citing Muniz v. Hoffman, 422 U.S. 454, 475-77, 95 S. Ct. 2178, 2190-91 (1975); Ex parte Werblud, 536 S.W.2d 542, 546-47 (Tex. 1976)). Accordingly, we conclude that Dr. Du Bois was not unconstitutionally denied her right to a jury trial.
We overrule her second issue.
Dr. Du Bois contends that this language deprives her and her family of "their free will by injecting Mr. Williams as a pseudo executor and or administrator in any Last Will and Testament of not only Dr. Du Bois but also those of any member of her family listing her or her son as beneficiary." She also asserts that it would not be in the best interest of the child to have Mr. Williams "serve in any fiduciary role on [her or her family's] behalf."
To the extent Dr. Du Bois contends the trial court erred by including this language in the order, we note that she did not call this purported error to the trial court's attention. Having failed to bring her complaint to the trial court's attention, she has not preserved this issue for review. See Tex. R. App. P. 33.1(a)(1).
To the extent Dr. Du Bois contends the language may cause problems in the future, 4 this Court lacks jurisdiction over that complaint. Ripeness is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). To determine ripeness, we consider whether the facts are sufficiently developed "so that an injury has occurred or is likely to occur, rather than being contingent or remote" at the time the suit is filed. Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 139 (Tex. App.— Houston [1 Dist.] 2008, no pet.) (citing Gibson, 22 S.W.3d at 851-52). "A claim is not ripe if it concerns 'uncertain or contingent future events that may not occur as anticipated or may not occur at all.'" Id. (citing Gibson, 22 S.W.3d at 852). A claim is not ripe when the plaintiff's injury "depends on contingent or hypothetical facts, or upon events that have not yet come to pass." Id. (citing Gibson, 22 S.W.3d at 852). Dr. Du Bois does not assert that the language of the order is causing a problem; she asserts that it may cause a problem in the future. Accordingly, we conclude the claim is not ripe and this Court lacks jurisdiction.
Dr. Du Bois also argues that the "contrasting language [of the two portions of the order] favors Mr. Williams, a male resident of Texas, and indicates different treatment of Dr. Du Bois, a female domiciled in Kansas under very similarcircumstances." To the extent Dr. Du Bois argues this is an equal protection violation, we disagree.5 As stated above, an equal protection claim requires a showing that a person was treated differently from those similarly situated without a rational basis. Sanders, 36 S.W.3d at 225. Dr. Du Bois does not identify any evidence to support either of these requirements of an equal protection claim. Furthermore, the record conclusively establishes that Dr. Du Bois and Mr. Williams are not similarly situated. Dr. Du Bois is the sole managing conservator of the child; Mr. Williams is a possessory conservator. These different types of conservatorship involve different rights and duties, which the trial court was required to specify in the order. See Tex. Fam. Code Ann. § 153.071 (West 2008) ().
We overrule Dr. Du Bois's third issue.
In her fourth issue, Dr. Du Bois asserts that the trial court erred by not holding Mr. Williams in contempt for violating provisions of the trial court's order concerning possession of their son and child support. Specifically, she asserts that "if Mr. Williams is not held accountable for his infractions; they will continue."
Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). "Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). "This is not done by merely uttering brief conclusory statements, unsupported by legal citations." I...
To continue reading
Request your trial