In re R.C.S.

• Decision Date: 21 July 2005
• Docket Number: No. 05-04-00305-CV.,05-04-00305-CV.
• Citation: 167 S.W.3d 145
• Parties: In Re R.C.S., T.C.S., J.C.S., and M.C.S., Minor Children.
• Court: Texas Supreme Court

Page 145

167 S.W.3d 145

In Re R.C.S., T.C.S., J.C.S., and M.C.S., Minor Children.

No. 05-04-00305-CV.

Court of Appeals of Texas, Dallas.

April 28, 2005.

Rehearing Overruled July 21, 2005.

COPYRIGHT MATERIAL OMITTED

Charles E. Miller, Jr., Mesquite, attorney ad litem for R.C.S., T.C.S., J.C.S., M.C.S.

Julia F. Pendery, Godwin Gruber, LLP, Yvette Jimenez Mabbun, Dallas, for Appellant.

Bruce K. Thomas, Law Office of Bruce K. Thomas, Dallas, Pamela Staley, Decatur, for Appellee.

Before Justices MORRIS, FRANCIS, and LANG-MIERS.

OPINION

Opinion by Justice MORRIS.

In this appeal from an order modifying the parent-child relationship, appellant Thomas C. Staley contends the trial court had no subject matter jurisdiction to change the conservatorship arrangement set forth in its original decree of divorce. In addition, appellant argues the trial court erred in denying two motions to recuse, failing to equalize the peremptory challenges given to each party, overruling an objection to evidence of racial bias, and awarding both appellee and the ad litem their attorney's fees. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

I.

Appellant and appellee, his former wife, Pamela S. Staley, are the parents of four minor children. On May 29, 2002, the trial court signed a final decree of divorce ending their marriage and establishing appellant and appellee as joint managing conservators. The decree did not grant either parent the right to establish the primary residence of the children, but instead ordered "that the primary residence of all four children is established at two locations:" one location being the residence of appellee in Dallas County, Texas; the other of appellant in Collin County, Texas or Dallas County, Texas. The decree also ordered that the children attend a particular private school unless appellant and appellee mutually agreed otherwise. Neither party appealed the decree.

Approximately three months after the decree was signed, appellee filed a petition to modify the parent-child relationship stating that the circumstances had materially and substantially changed since the earlier decree was rendered. Specifically, appellee stated that her mother had become very ill requiring appellee to care for her in Decatur, Texas. Appellee requested that she be designated as the conservator with the exclusive right to determine the primary residence of the children without regard to geographical location. In the alternative, appellee requested that the children's residence be restricted to Wise County, Texas, or contiguous counties. Appellee also requested that the children be allowed to attend a different school than the school designated in the original decree. Appellee stated she had discussed these matters with appellant, but no agreement could be reached. In a supplemental petition, appellee also requested that the terms and conditions for possession and access be changed.

Appellant answered and filed his own counter-petition to modify the parent-child relationship seeking, among other things, to be named the conservator with the exclusive right to determine the primary residence of two of the children and to restrict the residency of all four children to Collin County, Texas, or contiguous counties. Appellant argued these changes were necessary because the conservatorship arrangement under the original divorce decree had become unworkable.

The issue of who was to establish the primary residence of the children was tried to a jury. An ad litem was appointed to represent the best interests of the children. On the first day of trial, appellant non-suited the portions of his counter-petition seeking modification of the children's residency. Thus, the sole issue submitted to the jury was whether the divorce decree should be modified to appoint appellee as the conservator with the exclusive right to determine the primary residency of the children in Wise County and contiguous counties. The jury answered "yes" with respect to all four children.

The remaining issues were tried to the court without a jury. The trial court signed a final order on December 29, 2003. Appellant now appeals from that order.

II.

In appellant's first issue, he contends the trial court lacked subject matter jurisdiction over appellee's petition to modify the parent-child relationship because the petition was not supported by a sufficient affidavit under section 156.102 of the Texas Family Code. The version of section 156.102 in effect at the time appellee filed her petition stated that if a party files suit "seeking to modify the designation of the person having the exclusive right to determine the primary residence of a child . . . [within] one year after the date of the rendition of the order, the person filing suit shall execute and attach an affidavit as provided by Subsection (b)." Tex. Fam.Code Ann. § 156.102 (Vernon 2002), amended by Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 20, 2003 Tex. Gen. Laws 2987, 2993 (current version at Tex. Fam.Code Ann. § 156.102(a) (Vernon Supp.2004-05)). Subsection (b) required that the affidavit supporting the petition to modify contain an allegation and supporting facts showing that either (1) the child's present environment was endangering his physical health or emotional development, (2) the person who had the exclusive right to determine the primary residence was seeking or consenting to the modification, or (3) the person who had the exclusive right to determine the primary residence had voluntarily relinquished primary care and possession of the child for at least six months and the modification was in the best interests of the child. Id. Appellant argues section 156.102 is jurisdictional and because appellee failed to submit a sufficient affidavit, the trial court did not have subject matter jurisdiction over her suit. It is unnecessary for us to address whether section 156.102 is jurisdictional in nature, however, because the section is inapplicable to appellee's petition to modify.

By its clear and unequivocal terms, section 156.102 is applicable only to suits seeking to "modify the designation of the person having the exclusive right to determine the primary residence of a child." See id. In this case, the decree of divorce appellee sought to modify did not designate a person with the exclusive right to determine the primary residence of the children. Instead, the decree designated two alternate locations as the primary residence of the children. Because appellee's suit sought an order designating a person with the right to determine the primary residence of the children in the first instance, instead of a modification of the person so designated, section 156.102 does not apply to appellee's suit.

In holding that section 156.102 is not applicable in this case, we are mindful that the purpose section 156.102 is to promote stability in the conservatorship of children by preventing the re-litigation of custodial issues within a short period of time after the custody order is entered. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex.App.-Houston [1st Dist.] 1997, writ denied). Such stability in custodial issues was meant to be achieved, however by placing the power to designate the child's primary residence in a single conservator. It is for this reason that the legislature mandated that all orders appointing joint managing conservators include a designation of the conservator who has the exclusive right to determine the child's primary residence. See TEX. FAM. CODE ANN. § 153.133-4 (Vernon 2002). The divorce decree signed on May 29, 2002, ordered that appellant and appellee act as joint managing conservators, but failed to designate which conservator had the exclusive right to determine the children's residency. Therefore, the order was not in compliance with the requirements of the Texas Family Code. See id. By bringing suit to designate a conservator with the right to determine the children's primary residence, appellee was seeking to bring the divorce decree into compliance with the requirements of the Code. Appellee's suit, rather than seeking to disrupt the stability of the children's custody, sought instead to establish the stability that is created by vesting control of the children's residency in a single conservator. Because section 156.102 is inapplicable to appellee's petition, we conclude appellant's arguments under that section are without merit and we resolve his first issue against him.

In his second issue, appellant contends the trial court erred in its rulings on two different motions to recuse Judge Jeffrey Coen. The first motion sought to recuse Judge Coen after his assignment to the case as an associate judge; the second motion sought his recusal after he ascended to the district court bench and became the sitting judge of the court in which the parties' divorce case was pending. The first motion for recusal was filed by a trustee for Cromwell Holding Company, a party to the original divorce proceeding. According to the motion, then Associate Judge Coen demonstrated bias in favor of appellee by ordering that Cromwell be joined in the suit. Based on this order, Cromwell argued Coen was required to recuse himself under rules 18a and 18b of the Texas Rules of Civil Procedure.

Judge Coen denied Cromwell's motion, holding that rules 18a and 18b do not apply to associate judges appointed to hear matters under chapter 201 of the Texas Family Code. This decision was appealed to the sitting judge of the trial court who affirmed the denial of the motion. See TEX. FAM.CODE ANN. § 201.015 (Vernon 2002) (appeal to referring court). Despite the denial of the motion to recuse, Judge Coen did not hear any other matters in the suit before the trial court signed the divorce decree on May 29, 2002. We note again that no appeal was taken from the 2002 decree.

Appellant now attempts to challenge the denial of the first motion to...