In re Harrison

• Decision Date: 15 February 2018
• Docket Number: NO. 14-15-00430-CV,14-15-00430-CV
• Citation: 557 S.W.3d 99
• Parties: In the MATTER OF the MARRIAGE OF Clifford Layne HARRISON and Connie Vasquez Harrison
• Court: Texas Court of Appeals

557 S.W.3d 99

In the MATTER OF the MARRIAGE OF Clifford Layne HARRISON and Connie Vasquez Harrison

NO. 14-15-00430-CV

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

Opinion of February 15, 2018

Substitute Opinion filed June 12, 2018

Rehearing En Banc Denied October 9, 2018

Alan B. Daughtry, Houston, TX, for Appellant.

Sarah Hirsch Joyce, Patricia A. Wicoff, Houston, TX, for Appellee.

Panel consists of Justices Christopher, Busby, and Jewell.

SUBSTITUTE OPINION

Kevin Jewell, Justice

Appellant’s motion for rehearing is denied. We withdraw our February 18, 2018 opinion and substitute the following in its stead. Our judgment remains unchanged.

Clifford Layne Harrison ("Cliff") and Connie Vasquez Harrison ("Connie") are before this court for the second time on direct appeal from proceedings incident to divorce.¹ In a previous appeal on the merits, this court affirmed the divorce decree insofar as it granted the Harrisons' divorce, but we reversed the remainder of the decree and remanded for a new trial.

See Harrison v. Harrison , 367 S.W.3d 822, 835 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (" Harrison I "). This appeal follows the bench trial on remand. Connie challenges the trial court’s final order and decree on division of property and determination of conservatorship. In three issues, Connie contends the trial court abused its discretion by: (1) permitting her trial counsel to withdraw, over her objection, approximately four weeks before trial and without granting a trial continuance; (2) naming Cliff sole managing conservator of the Harrisons' two children; and (3) dividing the marital estate. After careful review of the record, we affirm.²

Introduction

A trial judge maintains considerable discretion to control disposition of cases "with economy of time and effort for itself, for counsel, and for litigants."³ Today’s case presents numerous challenges to a trial court’s discretionary rulings that, in many respects, balance a litigant’s rights against the trial court’s broad authority to enforce orders and constrain the litigant’s dilatory or obstructive behavior. A litigant’s dilatory conduct is especially concerning in a case involving the custody of children.⁴ This is so because, in a case such as today’s that involves conservatorship, access, and possession decisions, the children’s best interest must remain the court’s primary concern. See Tex. Fam. Code § 153.002. Conservatorship, access, and possession of the Harrison children have been matters of debate since October 2006, when Cliff initially filed for divorce from Connie. The children, who were six and two years old when this case began, have now reached the ages of seventeen and thirteen, with the upheaval of their parents' divorce and the ongoing custody dispute overshadowing the vast majority of their lives. We are now presented with a new appeal involving challenges to custody decisions and other rulings.

Background⁵

Connie and Cliff Harrison were married in February 2000. Both are licensed attorneys. They have a son who was born in 2000 ("J.H.") and a daughter who was born in 2004 ("V.H."). Connie and Cliff ceased living together in January 2006; Cliff filed for divorce on October 30, 2006. See Harrison I , 367 S.W.3d at 823. From October 2006 to February 2008, Connie was represented in the divorce proceeding by six different attorneys, and she occasionally represented herself. See id. at 823-24. In January 2010, with trial set to begin in March, Connie’s trial counsel filed a motion to withdraw based on Connie’s inability to pay attorney’s fees. Connie opposed her trial counsel’s withdrawal and sought interim attorney’s fees. After a hearing, the trial court permitted Connie’s counsel to withdraw and denied Connie’s motion for interim fees. Connie filed a motion for continuance, but the trial court denied the motion. In March 2010, the trial court called the case for trial, and Connie announced that she was "not ready." Nonetheless, the case proceeded to a jury trial with Connie representing herself.

Following trial, the court signed a final decree of divorce on June 21, 2010. Connie appealed the judgment to this court. Holding the trial court erred by denying a continuance when allowing Connie’s trial counsel to withdraw, we reversed and remanded for a new trial in April 2012.⁶ However, we affirmed the divorce between the parties as of the date of the decree. Since our remand in April 2012, this case has been preferentially set for trial a number of times, and Connie has alternated between periods of self-representation and representation by numerous attorneys, all of whom have withdrawn.

In January 2014, after participating in court-ordered mediation, the parties signed a mediated settlement agreement (the "MSA"). Connie moved to set aside the MSA the following March, asserting that she had been a victim of family violence, which impaired her ability to make decisions, and the MSA was not in the best interest of J.H. and V.H. She also asserted that "there has been a change in circumstances since the signing of the mediated agreement." But on the motion of the children’s amicus attorney, the trial court signed an interim order on parent-child issues incorporating the terms of the MSA on April 10 (the "Interim Order"). Consistent with the MSA, the Interim Order named Connie and Cliff joint managing conservators of J.H. and V.H. The Interim Order also provided Connie the exclusive right to designate the children’s residence within Harris County, while providing Cliff extended possession of the children.

Connie failed to fully comply with the trial court’s Interim Order, as well as other orders. As Connie’s violations are relevant to our analysis of the issues she presents, we summarize pertinent examples from the record. In March 2014, Second Baptist School notified Cliff and Connie that the children would not be permitted to enroll again the following school year because the "continued legal dispute concerning possession and other matters ... has required considerable focus by school employees and has on too many occasions distracted school staff from the school’s need to focus on the spiritual and educational needs of all students at the school." Thereafter, in May, the trial court signed additional temporary orders authorizing Cliff to enroll the children in private school. Under the terms of that order, if private school was unavailable, then the children were to attend the public schools to which Cliff’s home was zoned—Briargrove Elementary and Grady Middle School. Despite these orders, Connie unilaterally enrolled J.H. and V.H. in schools other than those specified by the orders. Further, Connie also violated the orders by withholding J.H. and V.H. from Cliff during his designated visitation times on several occasions. During the summer of 2014, Connie prevented Cliff from seeing or speaking with J.H. and V.H. for numerous weeks. Cliff filed numerous contempt motions against Connie for violating the court’s visitation orders.

On August 4, 2014, Cliff filed his first amended petition for division of property and to establish a parenting plan. In this petition, Cliff stated:

The parties and the AMICUS attorney mediated ... on January 29, 2014. A mediated settlement agreement on the parent-child issues was agreed to and signed by the parties and the AMICUS attorney. Since the signing of that mediated settlement agreement, a material and substantial change has occurred with regard to the children and/or the parties, and as such, the agreements pertaining to the children are not in the best interest of the children. Respondent has engaged in a course of conduct that is injurious to the welfare of the children, and this Court should make appropriate orders for the protection of the children.

As to conservatorship of the children, Cliff alleged that the continuation of Connie and he as joint managing conservators was no longer in the children’s best interest, and he requested that, on final hearing, the court appoint Cliff sole managing conservator.

Thereafter, on August 19, Cliff filed a motion to set aside the MSA or to modify the Interim Order. Cliff alleged that Connie violated the trial court’s orders on several occasions, including withholding J.H. and V.H. during Cliff’s designated periods of access, failing to allow communications between Cliff and the children, and engaging in a course of conduct "designed with the specific intent of alienating the children from their father." Cliff sought to be named as the children’s temporary sole managing conservator. After a hearing on September 3, the trial court signed an order granting Cliff’s motion for temporary orders.⁷ Finding the following actions necessary for the safety and welfare of J.H. and V.H. and in their best interests, the trial court: (1) removed Connie as a joint managing conservator, (2) appointed Cliff temporary sole managing conservator, (3) designated Cliff with "the exclusive right to all periods of possession and access of the children," and (4) barred Connie from "any periods of possession and/or access to the children until further order of the Court or by written agreement of the parties and attorneys." At some point before trial, the trial court apparently allowed Connie supervised visitation with J.H. and V.H., although our record does not contain an order so specifying.

Meanwhile, on September 2, Cliff filed a motion for enforcement of possession and access, in which he alleged that Connie had violated the court’s orders concerning possession of and access to the children. In this motion, he requested that Connie be held in contempt, jailed, and fined for various alleged violations. Connie appeared at the hearing on Cliff’s motion for enforcement on October 16. In an enforcement order signed October 24, the court: (1) found Connie committed eleven violations of its orders; (2) held Connie in criminal contempt for the violations; (3) fined Connie $3,000; and (4) ordered...