In re D.D.J.

• Citation: 136 S.W.3d 305
• Decision Date: 29 April 2004
• Docket Number: No. 2-02-298-CV.,2-02-298-CV.
• Court: Court of Appeals of Texas
• Parties: In the Interest of D.D.J.

136 S.W.3d 305

In the Interest of D.D.J.

No. 2-02-298-CV.

Court of Appeals of Texas, Fort Worth.

April 29, 2004.

Cary A. Johnson, Grandbury, Pro Se.

Ross & Harley, P.C. and Deborah K. Hartley, Arlington, for Appellee.

PANEL F: DAUPHINOT, HOLMAN, and GARDNER, JJ.

OPINION

ANNE GARDNER, Justice.

Appellant C.J., an inmate acting pro se, appeals from the trial court's final order modifying the parent-child relationship and confirming child support arrearages. He raises eight issues on appeal. We reverse and remand.

I. Factual and Procedural Background

Appellant and D.J. are the parents of D.D.J., who was born in 1997. Appellant and D.J. were divorced in 1998. In the divorce decree, the trial court appointed D.J. as D.D.J.'s joint managing conservator with exclusive right to determine D.D.J.'s primary residence and Appellant as D.D.J.'s joint managing conservator. The decree also contained a standard possession order. Additionally, the court ordered that Appellant pay $450 per month in child support beginning on December 15, 1998 and $85 per month for D.D.J.'s health care as additional child support. The court ordered Appellant's employers to withhold these sums from his earnings.

In December 2000, D.J. filed a motion for enforcement of the child support provisions in the 1998 divorce decree, alleging that, while Appellant had met his $535 monthly child support obligation from December 1998 to December 1999, he had fallen into arrears with respect to the payments due between January 2000 and December 2000. For reasons not apparent from the record, however, on January 9, 2001, D.J. filed a motion to dismiss with prejudice her motion for enforcement. On the same day, the trial court signed an order that dismissed D.J.'s motion for enforcement and ordered that "the records of the Tarrant County Child Support Office be amended to reflect that no arrearage is owed by [Appellant to D.J.] as of the date of this Order."

Additionally, because D.J. planned to move to California with D.D.J., she and Appellant presented to the court an agreed order modifying some of the terms of their divorce decree, which the court also signed on January 9, 2001. Under the terms of the agreed order, D.J. was allowed to establish D.D.J.'s primary residence without regard to geographic location. The order stated the trial court's findings that D.J. intended to move to California and that Appellant had agreed to this change and to bearing the costs of travel to exercise his rights of visitation of and access to D.D.J. Moreover, acting in accordance with D.J.'s and Appellant's agreement, the court suspended the prior order for periodic child support payments and ordered that Appellant did not owe D.J. any child support payments "at this time or until further order of this Court."

On May 17, 2001, D.J. filed a petition to modify the parent-child relationship and a motion to confirm child support arrearage. D.J. maintained that, because Appellant had not come to visit D.D.J. in California, and therefore had not incurred such transportation costs, the court should modify the January 9, 2001 agreed order by resuming the previously-suspended periodic child support payments. D.J. also alleged that Appellant had failed to pay for a portion of D.D.J.'s health care and requested that the court confirm the arrearages and enter a judgment for the arrearages and interest. In an amended pleading, Appellant requested a temporary order concerning conservatorship of D.D.J., child support, health insurance premiums, and uninsured medical expenses while the case was pending.

Meanwhile, at a time not provided in the record, Appellant was sentenced to seven years' imprisonment for a drug possession offense. On September 21, 2001, the trial court approved an associate judge's report for modification and ordered temporary relief, which modified the December 1998 decree and the January 2001 agreed order.¹ The court modified those two orders in three respects: (1) D.J. was appointed as D.D.J.'s sole managing conservator; (2) Appellant's possession of D.D.J. was to be agreed upon in advance between the parties, supervised by D.J. or either party's parents, and was conditioned upon Appellant passing any random drug or alcohol screening requested by family court services; and (3) Appellant was again required to pay $450 per month in child support beginning on October 1, 2001. The trial court's order stated that medical insurance on D.D.J. would be provided by D.J., the insurance cost would be paid by Appellant, and excess health care costs would be paid equally by the parties. Thus, while the court specifically reinstated the $450 per month periodic payment, it did not specifically reinstate the $85 per month periodic payment, which was originally in the 1998 divorce decree.

In 2002, D.J. amended her petition to modify the parent-child relationship and to confirm child support arrearages.² In her petition, D.J. alleged that "[Appellant] ha[d] had a significant history of alcohol or drug abuse since rendition of the order to be modified" and that he had been sentenced to seven years' confinement for the offense of possession of a controlled substance with an intent to deliver. D.J. again requested that the court appoint her as the sole managing conservator of D.D.J. and modify the rights and duties of the parties in relation to D.D.J. She asked the court to order Appellant to resume making previously suspended child support payments to her in the amount of $450 a month. D.J. also asked the court to determine the amount of child support Appellant owed her for past due payments and to enter a judgment for the arrearages with interest. Additionally, she requested that Appellant pay her attorney's fees and court costs.

In response, Appellant filed a general denial on July 3, 2002 and requested the appointment of an attorney because he did not own sufficient assets to hire a lawyer and because he was incarcerated. The trial court denied Appellant's request for an appointed attorney, advising him that the case did not involve the termination of his parental rights. The court set the case for a final hearing to be held on August 12, 2002.

Because Appellant was not represented by an attorney and was incarcerated, on July 24, 2002, Appellant filed a motion for a bench warrant to attend the final hearing or, alternatively, to participate by teleconference or other alternative means. As we discuss more fully below, the trial court expressly denied Appellant's request for a bench warrant. Then, on August 12, 2002, Appellant filed a document titled "[Appellant's] Response and Objections to [D.J's] Third Amended Petition to Modify Parent Child Relationship and Motion to Confirm Child Support Arrearage." Appellant argued against the modifications requested by D.J., and he attached a document, signed by both himself and D.J., indicating that he had paid $2,100 in child support to D.J. in 2002. He also attached several support letters from friends and family.

The court conducted the final hearing as scheduled on August 12, 2002. D.J. briefly testified about each of her requests, but she offered no other evidence in support of her claims.³ Appellant did not participate other than by his pleadings on file, which the court stated on the record that it had reviewed. On the same day that it heard D.J.'s testimony, the trial court granted all of D.J.'s requested modifications and signed a judgment against Appellant totaling $7,765.62 with interest for child support arrearages, accrued interest, attorney's fees, and costs.

II. Issues

Appellant enumerates eight issues in his brief. We construe his brief liberally as raising two main challenges: (1) that the trial court abused its discretion in denying his motion for a bench warrant or, alternatively, by failing to consider other effective means of participation, and (2) that the trial court abused its discretion by modifying the parent-child relationship with D.D.J. and in confirming child support arrearages.⁴ Appellant also complains about the award of attorneys' fees.

In essence, Appellant argues that he should have been allowed the opportunity to participate in person or by other effective means at the August 12 hearing and that his inability to participate prevented him from rebutting what he characterizes as D.J.'s "conclusory and self serving" testimony or from presenting evidence in support of his position. Consequently, Appellant maintains that the scant evidence presented at the modification proceeding, comprised solely of D.J.'s testimony, is insufficient to support the trial court's modification order, the confirmation of arrearages, and the award of attorney's fees.

This case demonstrates some of the issues that can arise when an incarcerated parent is brought into a lawsuit as a defendant in a petition seeking modification of the parent-child relationship and confirmation of child support arrearages. Because most of the decisions affecting incarcerated parents who are involved in a modification proceeding lie within the discretion of the trial court and because the Texas Legislature has provided little guidance in the family code regarding modification proceedings involving incarcerated parents, a trial court faces the difficult task of acting within its discretion not only in providing for the best interest of the affected child(ren), but also in ensuring and maintaining the integrity of the adversarial process. See TEX. FAM.CODE ANN. § 156.401(d) (Vernon Supp.2004) (recognizing release from incarceration to be a material and substantial change in circumstances); Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.-El Paso 2001, no pet.) (noting "[m]ost of the appealable issues in a family law case are evaluated against an abuse of discretion standard"); see also Frank J. Wozniak, Annotation, Loss of Income Due to Incarceration as Affecting Child Support Obligation, 27 A.L.R.5th 540 (1995 & Supp.2003) (discussing...