Fox v. Alberto

• Decision Date: 11 December 2014
• Docket Number: NO. 14–13–00007–CV,14–13–00007–CV
• Citation: 455 S.W.3d 659
• Parties: Stephen D. Fox, Appellant v. Mirna A. Alberto, Appellee
• Court: Texas Court of Appeals

455 S.W.3d 659

Stephen D. Fox, Appellant

v.Mirna A. Alberto, Appellee

NO. 14–13–00007–CV

Court of Appeals of Texas, Houston (14th Dist.

Opinion filed December 11, 2014.

Rehearing En Banc Overruled March 3, 2015

Stephen Fox, pro se.

Andrew Cookingham, Dallas, TX, for Appellee.

Panel consists of Chief Justice Frost and Justices Donovan and Brown.

OPINION

Kem Thompson Frost, Chief Justice

A litigant in a suit affecting the parent-child relationship filed two motions to recuse the trial court judge. The litigant asserts various arguments as to why the presiding judge of the Second Administrative Judicial Region erred in denying these motions. We dismiss in part and affirm in part.

I. Factual and Procedural Background

Appellant Stephen D. Fox and appellee Mirna A. Alberto are the parents of twin boys. Fox filed suit in the trial court below to establish his paternity and for an adjudication of his parental rights to the boys. According to a written motion to recuse Judge Judy Warne, the presiding judge of the trial court below, at about the time of a scheduled hearing in this case on May 2, 2012, but before the hearing began, Judge Warne ordered the bailiff to take Fox's cellphone from him while Fox was in the courtroom of the 257th Judicial District Court. After Fox refused to give up his cellphone, Judge Warne allegedly ordered the bailiff to place Fox in a jail cell located on the sixth floor of the Family Law Center. The bailiff purportedly placed Fox in this cell. Various other events allegedly occurred. Fox returned to the courtroom about twenty minutes later.

According to Fox, before the scheduled hearing began, Fox demanded that a record be made of the hearing, but Judge Warne stated that no record would be made because it was a temporary-orders hearing. The trial court proceeded with the hearing. When Fox was called to testify as a witness, he presented a handwritten, one-sentence motion to recuse Judge Warne, who then stopped the proceedings. This motion read in its entirety: “Comes now, Petitioner, Stephen D. Fox, and makes this demand for the immediate recusation [sic] of Judge Judy Warne from the above entitled and numbered cause.” (hereinafter the “First Motion”). Judge Warne referred the First Motion to Judge Olen Underwood, the presiding judge of the Second Administrative Judicial Region. Judge Underwood summarily denied the First Motion for noncompliance with Texas Rule of Civil Procedure 18a, which governs the recusal and disqualification of judges. See Tex.R. Civ. P. 18a(g)(l), (g)(3). Judge Underwood stated in his order that the First Motion did not comply with Rule 18a because (1) the motion was not verified; (2) the motion did not state any ground listed in Rule 18b; and (3) the First Motion did not satisfy the requirement that a motion to recuse must state with detail and particularity facts that: (A) are within the affiant's personal knowledge, except that facts may be stated on information and belief if the basis for that belief is specifically stated; (B) would be admissible in evidence; and (C) if proven, would be sufficient to justify recusal or disqualification. See Tex.R. Civ. P. 18a(a), (g). After Judge Underwood denied the First Motion, Fox filed an objection to Judge Underwood ruling on this motion.

The day after Fox filed the First Motion and less than two hours before Judge Underwood denied this motion, Fox filed a “supplemental” motion to recuse Judge Warne, which Judge Warne also referred to Judge Underwood. In his appellate briefing, Fox often treats the supplemental motion to recuse and the First Motion as if they were part of a single motion to recuse. We conclude that the supplemental motion to recuse is a separate motion to recuse (hereinafter, the “Second Motion”). Judge Underwood assigned himself to the trial court and held a hearing on the Second Motion. Though Judge Underwood heard argument, he did not allow Fox to present evidence at the hearing. Judge Underwood denied the Second Motion.

The case proceeded to trial by jury. The jury determined that both Fox and Alberto should be joint managing conservators of the boys and awarded Alberto the right to designate the primary residence of the children. The trial court ordered Fox to pay child support.

II. Issues and Analysis

A. Interference–with–Custody and Contempt Claims

In his second issue, Fox asserts that the trial court erred in refusing to allow him to pursue claims for interference with child custody and contempt at the jury trial. In support of this issue, Fox states merely that he had pled these matters well in advance of trial and that these pleadings were not stricken. To the extent Fox's issue is a complaint about the trial court's failure to hold Alberto in contempt, we lack jurisdiction to consider this complaint on direct appeal, and we dismiss this part of the issue.See Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985) ; Dorsey v. Houston Housing Authority, 14–10–00165–CV, 2011 WL 398022, at *3 (Tex.App.–Houston [14th Dist.] Feb. 8, 2011, no pet.) (mem.op) (holding that appellate courts lack jurisdiction on direct appeal to review a trial court's refusal to hold an individual in contempt). To the extent Fox asserts arguments other than the trial court erred in refusing to hold Alberto in contempt, these arguments have not been adequately briefed. See San Saba Energy, L.P., 171 S.W.3d 323, 337 (Tex.App.–Houston [14th Dist.] 2005, no pet.). Even construing his appellate brief liberally, we cannot conclude that the briefing of this issue comports with the briefing rules and requirements. See id. Because the remainder of the second issue is inadequately briefed, we overrule it. See id.

B. Motions to Recuse Trial Court Judge

1. The First Motion

Under his first issue, Fox asserts that the trial court erred in denying his motion to recuse. As noted, Fox often treats the First Motion and Second Motion as if they were a single motion, and parts of his briefing are unclear. Liberally construing Fox's appellate brief, we conclude that he challenges Judge Underwood's denial of the First Motion on the ground that Judge Underwood lacked jurisdiction to sign the order denying the First Motion because Judge Underwood signed this order in Conroe, rather than in Houston, the county seat of Harris County.¹

Fox asserts that Judge Underwood lacked jurisdiction to summarily deny the First Motion because Judge Underwood issued the summary denial from his office at the Montgomery County Courthouse located in Conroe. The Texas Constitution provides that the court shall conduct its proceedings at the county seat of the county in which each case is pending, except as otherwise provided by law. Tex. Const. art. V. § 7. Neither the mental processes of a judge nor the task of signing orders on motions is a proceeding that must occur from the county seat. See Whatley v. Walker, 302 S.W.3d 314, 325 (Tex.App.–Houston [14th Dist.] 2009, pet. denied); Burns v. Bishop, 48 S.W.3d 459, 465 (Tex.App.–Houston [14th Dist.] 2001, no pet.). Judge Underwood's action in summarily denying the First Motion did not constitute a proceeding under article V, section 7 of the Texas Constitution that needed to be carried out from the county seat. See Whatley, 302 S.W.3d at 325 (holding that action of judge assigned to hear a motion to recuse in signing an order denying the motion was not a proceeding required to be carried out from in the county seat). Judge Underwood's action in considering the First Motion and signing an order denying it in Conroe does not make that order void or deprive Judge Underwood of jurisdiction to rule on that motion. See id. Thus, we conclude that there is no merit in the only appellate challenge to the denial of the First Motion that Fox has sufficiently briefed.

2. The Second Motion

Fox asserts that Judge Underwood erred in refusing to allow appellant to present any evidence at the hearing on the Second Motion. An appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to the record. See Tex.R.App. P. 38. l(i). We must interpret this requirement reasonably and liberally. See Mojtahedi v. BHV Realty, Inc., No. 14–05–01101–CV, 2007 WL 763813, at *4 (Tex.App.–Houston [14th Dist.] Mar. 15, 2007, no pet.) (mem.op.). However, parties asserting error on appeal must put forth some specific argument and analysis showing that the record and the law support their contentions.See id. Though Fox states several times in a conclusory manner that Judge Underwood refused to allow him to present any evidence at the hearing on the Second Motion, Fox does not present argument or analysis in support of an argument that Judge Underwood erred in doing so. Fox does not cite any legal authorities addressing a judge's alleged error in refusing to allow presentation of evidence at a recusal hearing or at any other hearing. Fox does not cite legal authorities as to whether an offer of proof is necessary in the context of such a complaint. Fox's appellate briefing regarding this complaint is not sufficient to articulate a clear and concise argument in support of his contention that Judge Underwood erred in refusing to allow Fox to present any evidence at the hearing on the Second Motion. See id. Because Fox's briefing in this regard is inadequate, he has waived review of this complaint. See id.

Liberally construing Fox's appellate brief, we conclude that he has sufficiently briefed the following challenges to Judge Underwood's denial of the Second Motion: (1) Judge Underwood erred in ruling on the Second Motion despite Fox's timely filed objection to Judge Underwood under section 74.053(c) of the Texas Government Code, which objection was brought to the attention of Judge Underwood and discussed at the recusal hearing;² and (2) Judge Underwood erred in denying the Second Motion because Judge Warne allegedly engaged in unethical behavior and consistently denied Fox's due process rights, thus allegedly showing her...