In re S.V.
| Decision Date | 14 August 2017 |
| Docket Number | No. 05-16-00519-CV,05-16-00519-CV |
| Parties | IN THE INTEREST OF S.V. AND S.V., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 254th Judicial District Court Dallas County, Texas
Before Justices Bridges, Fillmore, and Boatright
Opinion by Justice Fillmore
Appellant Father appeals the trial court's May 4, 2016 Order in Suit Affecting the Parent-Child Relationship Nunc Pro Tunc (the 2016 Order) naming appellee Mother sole managing conservator of their two children, S.V. and S.V.1 In his first issue, Father asserts this case should be remanded for a new trial due to missing trial court exhibits. In his remaining seven issues, Father contends the trial court erred by ordering Father to pay Mother's attorney's fees; ordering a possession schedule that gave the children discretion to decide whether Father would have possession; ordering Father to add a physician to his health insurance plan who was not part of that plan's network; ordering injunctive relief against Father; ordering an anti-suit injunction against Father that restricts his access to the courts; denying pretrial discovery and strikingFather's pleadings due to hybrid representation; and ordering child support arrearages and post-trial discovery that contradict the parties' mediated settlement agreement. We affirm in part and reverse in part.
This is a suit affecting the parent-child relationship (SAPCR). In June 2005, the parties divorced and were named joint managing conservators of the children, with Father having expanded standard visitation. A March 22, 2012 order of the trial court (the 2012 Order) appointed Mother sole managing conservator and Father possessory conservator of the children. This appeal arises from a modification of the 2012 Order.
The catalyst for the proceedings that resulted in the modification was the events of Father's Day of 2013. Father had possession of the children that day. When his older child received a text message originating from an unknown number, Father yelled at her not to answer and reached for the phone. In the process, he struck her across her face. The contact hurt the child and Father as well—he had a broken finger at the time—and he reacted by calling the child a "bitch" and saying he "hoped she died of cancer." Father apologized. Afterwards, the children worked together and made a video for Father as a surprise. Testimony indicates the video showed the children laughing and singing a song to Father soon after the incident in which he had struck the older child. Father took a photograph of a white board on which the children had written lyrics of the song they had composed. According to Mother, when the children returned to her home that night and told her what had happened, they were extremely distraught.
On July 2, 2013, Mother filed an Ex Parte Emergency Motion for Extraordinary Relief and for Temporary Restraining Order and Order Setting Hearing for Temporary Orders, seeking to restrict all access to the children by Father. The trial court temporarily abated Father's access, and then, on August 9, 2013, Mother filed a Petition to Modify Parent-Child Relationship,seeking to make the abatement permanent. Father subsequently filed a Counter-Petition to Modify Parent-Child Relationship on May 23, 2014.
In November 2015, a jury heard the issues of whether the parents' status should be changed and attorney's fees should be awarded. The parties presented not only evidence of the 2013 Father's Day events, but also evidence of the troubled relationships between the parents and between Father and the children since 2012. The evidence addressed Father's confrontations with the children's teachers and coaches, his problematic dealings with family counselors, and the frustrations of the children due to the controlling nature of Father's interactions with them. The older child testified she was not willing to continue a relationship with Father. The younger child did not testify at trial.
The jury found the 2012 Order should not be modified as to the parents' status, thus maintaining Mother as sole managing conservator and Father as possessory conservator of the children. The jury also found Mother's reasonable and necessary attorney's fees incurred or to be incurred were $20,000 in the trial court, $10,000 on appeal to the court of appeals, and $10,000 to the Supreme Court of Texas. On May 4, 2016, the trial court signed the 2016 Order, adopting the jury's findings and setting forth the court's orders concerning possession, child support, and all other relevant SAPCR matters. The trial court ultimately denied Father's amended motion for new trial, and Father filed this appeal.
When Father filed his notice of appeal and requested the reporter's record, he learned the record did not contain two trial court exhibits: the Father's Day video and photograph. He filed a motion for new trial in this Court, relying on Texas Rule of Appellate Procedure 34.6(f), which would entitle him to another trial if, as relevant to this case: (1) he timely requested the reporter's record; (2) a significant exhibit was lost or destroyed through no fault of his own; (3)the lost exhibit was necessary to the resolution of his appeal; and (4) the lost evidence could not be replaced by agreement of the parties or with a copy determined by the trial court to duplicate the original evidence accurately and with reasonable certainty. See TEX. R. APP. P. 34.6(f). We ordered the trial court to "conduct a hearing to determine" each of the appellate rule 34.6(f) requirements and to file its "written findings" with this Court.
In compliance with our order, the trial court found, after an evidentiary hearing, that Father timely requested the reporter's record, the video and the photograph had been lost or destroyed due to no fault of Father, the video and the photograph were not necessary to the appeal's resolution, and the video and photograph could not be replaced by agreement of the parties or with a copy that accurately duplicated with reasonable certainty the original exhibits. Father contested in this Court the trial court's finding concerning necessity of the missing exhibits to resolution of the appeal and again asked this Court to grant him a new trial. We ordered the parties to address in their briefs whether the video and photograph are necessary to the resolution of the appeal.
In his first issue, Father contends this Court cannot adequately review his appellate complaints in the absence of the lost exhibits. Specifically, he argues that in order to determine whether the trial court has abused its discretion in this case, we must determine whether its orders are supported by sufficient evidence and whether they are in the best interest of the children. In both instances—sufficiency and best interest—Father asserts we are required to review the entire record, and the absence of the missing exhibits prevents us from doing so. Thus, he contends, he is entitled to a new trial.
Mother responds the evidence is not necessary to resolution of the appeal because there is no disagreement about what is depicted in the video and photograph. She points to testimonyfrom both Father and the older child about the video and its contents. And she argues the exhibits were of insignificant probative value, did not sway the jury, and should be disregarded.
Father is not entitled to a new trial unless all four circumstances of appellate rule 34.6(f) are present. See Haynes v. Haynes, No. 04-15-00107-CV, 2017 WL 2350970, at *3 () (mem. op.). Further, as appellant and new-trial movant, Father had the burden of establishing the missing exhibits are necessary to the appeal's resolution. Gaston v. State, 63 S.W.3d 893, 899 (Tex. App.—Dallas 2001, no pet). The requirement that the missing portion of the record "is necessary to the appeal's resolution" is a harm analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999); Haynes, 2017 WL 2350970, at *3. "If the missing portion of the record is not necessary to the appeal's resolution, then the loss of that portion of the record is harmless under the rule and a new trial is not required." Issac, 989 S.W.2d at 757.
We review a trial court's findings under appellate rule 34.6(f), including a finding that a missing portion of the record is necessary to the appeal, for an abuse of discretion. Johnson v. State, No. 13-16-00023-CR, 2017 WL 1281391, at *1, 4 (Tex. App.—Corpus Christi Apr. 6, 2017, no pet.) (mem. op.);2 see also Estate of J.T. Neal v. River Inn Ass'n of Unit Owners, No. 14-10-00307-CV, 2011 WL 238340, at *1-2 (Tex. App.—Houston [14th Dist.] Jan. 25, 2011, no pet.) (per curiam) (mem. op.) (concluding, based on trial court's findings that a record was timely requested, significant portions of the record had been lost or destroyed, missing portions of record were necessary to appeal, and missing portions of record could not be replaced by agreement, that appellants were entitled to new trial pursuant to appellate rule 34.6(f)); In reN.T.H., No. 02-02-00283-CV, 2003 WL 21284138, at *1 (Tex. App.—Fort Worth June 5, 2003, no pet.) (per curiam) (mem. op.) (same).3 A trial court abuses its discretion when it acts without reference to any guiding rules or principles. WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex. App.—Dallas 2006, pet. denied) ().
In this case, both Father and the older child testified at trial and addressed the content of the missing video and photograph. Father's counsel played the video for the jury, then asked Father whether he coerced the children into making the video. Father answered, ...
To continue reading
Request your trial