In re M.A.H.
| Decision Date | 16 May 2007 |
| Docket Number | No. 06-06-00081-CV.,06-06-00081-CV. |
| Citation | 224 S.W.3d 838 |
| Parties | In the Matter of M.A.H. and S.J.B., Children. |
| Court | Texas Court of Appeals |
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Kerri Hass, the mother of M.A.H. and S.J.B., the two children at bar, appeals from an order granting custody of these children to Judy Thorn, the grandmother of the children.
The record on this matter is rife with uncertainty and confusion. On her appeal, Kerri designated that the record on appeal in cause number 95-248 on the docket in the 402nd Judicial District Court of Wood County, Texas (the case from which this appeal was taken), was to include only documents filed after January 1, 2005. The docket sheet shows cause number 95-248 was originally a divorce action between Kerri Sue Hass and Marcus Wayne Hass. The first pleading or order included in the record is a child support enforcement order involving two other children of Kerri (who have both now attained their majority), who were fathered by a different father from either of the children in this appeal.1 The initial pleadings filed by Thorn which deal with M.A.H. recite that the District Court of Wood County, Texas, acquired jurisdiction over M.A.H. in cause number 92-234 on the docket of that court, but the cause number on the heading is marked out and cause number 95-248 is handwritten in. A separate petition filed simultaneously by Thorn regarding S.J.B. alleges that no court had previously acquired jurisdiction over that child; the previous docket number assigned to the motion relating to her was likewise marked out and it was also filed in cause number 95-248. The record does not reveal why M.A.H. (whose father is Marcus Wayne Hass) and S.J.B. (whose father is Joseph Michael Baker) are the subject of only one action.
The reporter's record shows that there was a hearing held in this matter January 6, 2006-a hearing attended by Thorn, Thorn's attorney, Marcus, and the attorney ad litem who had been appointed to represent Kerri (who had been cited by publication). Marcus had also filed a waiver of service. This was the only hearing on the merits conducted in this matter. At the outset of that hearing, Thorn's attorney pointed out that the fathers of the children were in agreement with Thorn's course of action and that an order would be circulated among them to be presented to the trial court at a later time. During this hearing, it was indicated by Thorn that she had made numerous unsuccessful attempts to achieve personal service citation upon Kerri and detailed those efforts; she also testified concerning the best interests of the children the subject of the suit, relating that S.J.B. had suffered violence at the hands of Kerri and her boyfriend, with whom she cohabits. At the conclusion of the hearing, the court indicated that it was granting Thorn the relief she had requested. Thorn's attorney indicated that an order needed to be circulated and, after this had been accomplished, would be presented to the court for entry.
On March 13, 2006, a waiver of service was filed by Joseph Michael Baker.
An "Order in Suit to Modify Parent-Child Relationship" (which recited that it was taken on the default of Kerri to appear and that the parties waived the making of a record) was filed June 21, 2006, which recited that a hearing took place on that same date; that order bore the signatures of approval by Marcus and Joseph. However, it appears that no hearing was actually conducted on that date; rather the evidentiary hearing at which the evidence was developed to sustain the complained-of order was held January 6, 2006, and the wrong hearing date was inserted in the order.
In its order, the court removed Kerri as the managing conservator of both minor children2 and appointed Thorn as managing conservator and Kerri as possessory conservator of both children. The order went on to require Kerri to pay Thorn child support and provide health insurance for the children; it also gave the sole discretion to Thorn to unilaterally determine the times and circumstances for visitation and/or custody of the children.
Kerri filed a motion for new trial, challenging the diligence employed by Thorn in attempting to achieve personal service citation. After a lengthy hearing, the court determined that due diligence had been attempted in an effort to locate and personally serve notice on Kerri prior to the citation by publication and denied the motion for new trial.
On appeal, Kerri raises several unrelated arguments; Thorn chose to file no responsive brief.
Kerri first argues that the custody order must be reversed because the order states that the parties waived a court reporter.3 Kerri correctly notes that, in child custody cases, the general rule is that a reporter may only be waived on the agreement of all parties and that, where one party does not appear, waiver of the making of a record by the other party is not sufficient. Stubbs v. Stubbs, 685 S.W.2d 643 (Tex.1985);4 In re Vega, 10 S.W.3d 720, 722 (Tex.App.-Amarillo 1999, no pet.).5
However, we also recognize that, as counsel explicitly acknowledges in his brief, and as reflected by the trial court's docket, no hearing was conducted on June 21, 2006. There can be no error in having no record from a nonexistent hearing.6 Despite the incorrect recitation in the order that the making of a record was waived, a record was actually made of the hearing on the merits held January 6, 2006; the reporter's record of that hearing was proffered as a part of the record on appeal.
Kerri also argues that the trial court abused its discretion in ordering visitation "on the days and times prescribed" by Thorn. That entire section reads as follows:
The Court finds that credible evidence has been presented that KERRI SUE HASS has a history or pattern of physical abuse directed against [S.J.B.] and [M.A.H.]. IT IS THEREFORE ORDERED that visitation shall be under the supervision of JUDY THORN on the days and times prescribed by JUDY THORN.
The best interest of the child is always the primary consideration in determining issues of conservatorship and possession. TEX. FAM.CODE ANN. § 153.002 (Vernon 2002). With regard to issues of custody, control, possession, child support, and visitation, we give the trial court wide latitude and will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion. In re J.R.D., 169 S.W.3d 740, 743 (Tex.App.-Austin 2005, pet. denied); see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (). Because the trial court is faced with the parties and their witnesses and observes their demeanor, it is in a better position to evaluate what will be in the best interests of the children. J.R.D., 169 S.W.3d at 743; see Garza v. Garza, 217 S.W.3d 538, 552 (Tex.App.-San Antonio, 2006, no pet.) (released for publication Apr. 17, 2007) ("[T]he trial judge is in the best situation to observe the demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned by merely reading the record."); In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.-Dallas 2003, no pet.).
Therefore, in reviewing the substance of the trial court's order, we ask whether the court acted without reference to any guiding rules or principles, i.e., whether the order was arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Peck v. Peck, 172 S.W.3d 26, 33 (Tex.App.-Dallas 2005, pet. denied).7
Kerri argues that any order—such as the one from which she appeals—which gives one party complete discretion to determine when, where, and if the other party will have visitation with a child is an abuse of discretion because it effectively denies any right to visitation to the other party. This argument finds support in several cases, including controlling authority from this Court.
In Roosth v. Roosth, 889 S.W.2d 445 (Tex.App.-Houston [14th Dist.] 1994, no writ), the court reviewed an order limiting a father's possession of children to times mutually agreed to in advance by the mother and did not state in clear and unambiguous terms what the mother had to do to comply with the judgment. Instead, it gave the mother complete discretion to determine when, where, and if the father could exercise visitation with the children. The court found the ruling that the father's visitation periods would depend solely upon the mother's approval to be an abuse of discretion.8
This Court addressed a similar situation in In re A.P.S., 54 S.W.3d 493 (Tex.App.-Texarkana 2001, no pet). As in this case, the appellant argued that the trial court abused its discretion by fashioning an order requiring the consent of the other parent (not setting out the periods of possession and/or access); the reasoning in this argument was that such an order effectively denied her any access to the children because it was at the complete discretion of her former spouse.
In that opinion, reviewing a similar restriction on visitation, we stated that the terms of an order giving one party complete discretion over the other party's access to the children allowed for no enforcement of rights by contempt. As we pointed out, this could on the one hand effectively deny one party access to the children, and on the other hand, also leave her without the remedy of contempt against the other party.
We went on to note that the record as it had been developed did not show that the complete denial...
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