In re Interest of E.R.C., 06–15–00085–CV

• Decision Date: 14 June 2016
• Docket Number: No. 06–15–00085–CV,06–15–00085–CV
• Citation: 496 S.W.3d 270
• Parties: In the Interest of E.R.C., a Minor Child
• Court: Texas Court of Appeals

496 S.W.3d 270

In the Interest of E.R.C., a Minor Child

No. 06–15–00085–CV

Court of Appeals of Texas, Texarkana.

Submitted: March 11, 2016

Decided: June 14, 2016

Brandi Stokes, Brandi Stokes, PC, Austin, TX, for appellant.

Samuel E. Bassett, Minton, Burton, Bassett & Collins, PC, Austin, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Moseley

After a contentious litigation culminating with a bench trial, a Travis County district judge¹ granted Christopher Corsbie's motion to modify the parent-child relationship pertaining to his child, E.R.C., a girl born on December 25, 2009. The order named Corsbie and the child's mother, Brandi Stokes,² as joint managing conservators. In its order,³ the trial court granted Corsbie exclusive rights, inter alia, to designate the primary residence of the child, to consent to medical, dental, surgical, and psychological treatment, and to make decisions concerning the child's education. In addition, the trial court ordered Stokes to pay Corsbie $350.00 per month in child support and to pay Corsbie's attorney $40,000.00 in attorney fees. Stokes has appealed, contending (1) that the order of the Honorable James Carroll (who heard Stokes' motion to recuse the trial judge) denying her motion to recuse⁴ the trial judge, the Honorable Tim Sulak, violated her rights to due process and religious liberty under the federal constitution and violated Rule 18b of the Texas Rules of Civil Procedure, (2) that Travis County District Court Local Rule 1.3⁵ (Local Rule 1.3) violates the due process requirements of the United States Constitution, (3) that the reappointment of the Travis County Domestic Relations Office (DRO) as the guardian ad litem of E.R.C.⁶ violated Stokes' right to due process under the United States Constitution, and (4) that the cumulative effect of the errors by the trial court violated her right to due process under the United States Constitution, or otherwise constituted harmful error. We find that (1) Stokes has not preserved her alleged due process violations regarding the refusal to recuse and Local Rule 1.3, (2) that she has waived any complaint that the order refusing the motion for recusal violated her religious liberties and that cumulative error violated her right to due process, (3) that any error regarding the reappointment of the DRO as guardian ad litem is moot, (4) that Judge Carroll did not abuse his discretion in denying Stokes' motion to recuse Judge Sulak, and (5) that Stokes has not shown reversible cumulative error by the trial court.

We affirm the judgment of the trial court.

I. Alleged Due Process Violations Regarding the Identity of Trial Judge Not Preserved

"Preservation of error is a systemic requirement on appeal.... Ordinarily, a court of appeals should review preservation of error on its own motion." Ford v. State, 305 S.W.3d 530, 532–33 (Tex.Crim.App.2009)(citations omitted). We should not address the merits of an issue if it has not been preserved for appeal. Id .To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if those are not apparent from the context. TEX.R.APP. P. 33.1(a)(1). Further, the trial court must either have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. TEX.R.APP. P . 33.1(a)(2). This preservation rule applies to due process challenges under the federal constitution. See Low v. Henry, 221 S.W.3d 609, 619 (Tex.2007); In re L.M.I., 119 S.W.3d 707, 710–11 (Tex.2003); Diaz v. State , No. 03–15–00539–CR, 2016 WL 1084398, at *3 (Tex.App.–Austin Mar. 17, 2016, no pet. h.)(mem.op.).

In her first point of error, Stokes asserts that Judge Carroll's denial of her motion to recuse Judge Sulak violated her rights to due process and religious liberty and violated Rule 18b of the Texas Rules of Civil Procedure. However, although the motion she filed to recuse Judge Sulak asserts grounds under Rule 18b, that motion does not mention an allegation that she suffered a violation of due process. Further, even though Stokes made a single passing reference to her due process rights in her opening statement at the hearing conducted on her motion to recuse Judge Sulak,⁷ during the remainder of the hearing, Stokes focused on the requirements for recusal under Rule 18b, and Stokes never again argued to Judge Carroll that a denial of her motion would be a violation of her right to due process. It was not apparent from the record that Stokes was asserting that Judge Sulak's failure to voluntarily recuse himself resulted in a denial of due process or that a denial of her motion would be a denial of due process. Therefore, Stokes failed to preserve her due process argument for appeal. See L.M.I., 119 S.W.3d at 711.

In her second point of error, Stokes complains that Local Rule 1.3 unconstitutionally violates due process by creating an increased risk of judicial bias by reducing judicial accountability, allowing judicial case shopping, and denying litigants fair notice of judicial case assignments.⁸ However, Stokes neither lodged any objection at the trial level complaining of the assignment of judges pursuant to Local Rule 1.3 nor made any complaint that Local Rule 1.3 was unconstitutional. In addition, her amended motion for new trial does not complain of Local Rule 1.3 or the assignment of judges pursuant to it. Further, at the hearing on her motion for new trial, Stokes made three general references to the local rules, but each of those were in the context of her complaints regarding the guardian ad litem or regarding the court-appointed psychologist, not as those rules pertained to the assignment of judges. Thus, it was not apparent that Stokes was referring to Local Rule 1.3 as it related to the assignment of a judge to hear her case or that she was asserting that it violated due process. Therefore, Stokes has preserved nothing for our review in regard to Local Rule 1.3, and we overrule her second point of error.

II. Alleged Violation of Stokes' Religious Liberty and Violation of Due Process by Cumulative Error Waived

As noted above, included in Stokes' first point of error is her assertion that her religious liberty was violated by the denial of her motion to disqualify or recuse Judge Sulak. In addition, she asserts that cumulative error by the trial court violated her right to due process. Our appellate rules require that the 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); Thomas v. Graham Mortg. Corp. , 408 S.W.3d 581, 595 n.5 (Tex.App.–Austin 2013, pet. denied). In her brief, Stokes fails to cite any authority in support of her arguments pertaining to alleged violations of her religious liberty.⁹ "[F]ailure to cite authority in support of a point of error on appeal waives the complaint." Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.—El Paso 1997, no writ); see also Ebner v. First State Bank of Smithville , 27 S.W.3d 287, 303 n. 28 (Tex.App.–Austin 2000, pet. denied)(issue without argument or authority is waived). In addition, an appellant claiming that her constitutional rights have been violated must show how those rights have, indeed, been violated. See Custer v. Wells Fargo Bank, N.A. , No. 03–15–00362–CV, 2016 WL 1084165, at *3 (Tex.App.–Austin Mar. 18, 2016, no pet. h.)(mem.op.); see Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 844 (Tex.2012)(refusing to consider appellant's constitutional claim when he failed to demonstrate how his constitutional rights were violated). Stokes has not demonstrated how her right to the free exercise of religion was violated by the denial of her motion to recuse, or how cumulative error by the trial court violated her right to due process. Therefore, we find these arguments are waived as inadequately briefed. See Thomas, 408 S.W.3d at 595 n. 5.

III. Issues Regarding the Reappointment of Guardian Ad Litem Are Moot

In her third point of error, Stokes asserts that the reappointment of the DRO as guardian ad litem was a violation of her right to due process and that the court erred in reappointing the DRO without taking remedial action with regard to the alleged misconduct of its employee, Cynthia Gonzalez. In a suit affecting the parent-child relationship, the trial court may make temporary orders "for the safety and welfare of the child." TEX. FAM.CODE ANN. § 105.001 (West 2014). Among the temporary orders authorized by the Family Code is the appointment of a guardian ad litem when the trial court "finds that the appointment is necessary to ensure the determination of the best interests of the child." In re Scheller, 325 S.W.3d 640, 645 (Tex.2010)(per curiam) (quoting TEX. FAM.CODE ANN. § 107.021(a)(3), (b)(2)). After the trial court enters its final order, any complaints about temporary orders become moot. Caldwell v. Garfutt , No. 03–14–00019–CV, 2016 WL 105920, at *4 (Tex.App.–Austin Jan. 7, 2016, no pet.); Mauldin v. Clements , 428 S.W.3d 247, 262 (Tex.App.–Houston [1st Dist.] 2014, no pet.). The trial court entered its final order on December 9, 2015, thereby rendering Stokes' complaint about the temporary orders moot. Since this issue is moot, nothing is presented for our review. We overrule Stokes' third point of error.

IV. No Error in Denying the Motion to Disqualify or Recuse Judge Sulak

As previously noted, in her first point of error, Stokes asserts that Judge Carroll erred in denying her motion to disqualify or recuse Judge Sulak in violation of Rule 18b. In her motion, Stokes alleged that Judge Sulak's recusal was required by Rule 18b, subsections (b)(1) and (b)(2). Subsections (b)(1) and (b)(2) require a judge to recuse himself in a proceeding in which his "impartiality might reasonably be questioned" or in...