Shirley v. Montgomery

• Decision Date: 23 March 1989
• Docket Number: No. C14-89-042-CV,C14-89-042-CV
• Citation: 768 S.W.2d 430
• Parties: Stacie Deneise SHIRLEY, Relator, v. Hon. John MONTGOMERY, Judge, 309th District Court, Harris County, Texas, Respondent. (14th Dist.)
• Court: Texas Court of Appeals

Page 430

768 S.W.2d 430

Stacie Deneise SHIRLEY, Relator, v. Hon. John MONTGOMERY, Judge, 309th District Court, Harris County, Texas, Respondent.

No. C14-89-042-CV.

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

March 23, 1989.

Dissenting Opinion April 20, 1989.

Rehearing Denied April 20, 1989.

Earle S. Lilly, Pamela E. George, Houston, for relator.

Burta Rhoads, Bryan A. Domning, J. Lindsey Short, Jr., Nancy Ellen Walker, guardian/Atty. ad litem Stewart W. Gagnon, Houston, for respondent.

Before PRESSLER, CANNON and ELLIS, JJ.

OPINION

CANNON, Justice.

This mandamus proceeding arises out of a complex and hotly contested custody battle between Stacie Deneise Shirley, relator, and her husband, Charles Earl Shirley, Jr. This case has been on file in the 309th District Court since May 1986. The subject of the suit below is a four-year-old child. The subject of this mandamus proceeding is an order by the trial judge requiring relator to pay $15,000 into the trust fund of the ad litem whom the court appointed to represent the best interests of the child in the custody suit.

We must decide whether the order of the trial court commanding relator to pay the sums to the ad litem may be enforced with discovery sanctions and, if so, whether the trial judge abused his discretion by imposing the sanctions when the evidence showed relator could not comply. We conditionally grant the writ of mandamus.

Some evidence has been presented to the court to support allegations of kidnapping, intentional interference with child custody, physical assault, emotional abuse, and illegal drugs. Certain criminal charges are pending that grew out of this action. The parties and third party defendants have filed more than 200 instruments with the court. As of mid-January 1989, one party had 77 names on its witness list filed pursuant to discovery. Many hours have been expended by all parties during the discovery phase of this case.

Relator and her parents have expended substantial sums of money. Relator testified her parents gave her $16,000 to pay her first lawyer and also gave her $100,000 to pay her subsequent divorce counsel. In addition, relator testified her parents gave her $50,000 to pay an attorney for his representation of her in criminal matters which have arisen out of the facts of the divorce suit. Finally, relator's parents paid $20,000 to yet another law firm.

The instant controversy arose in December 1988 when the trial judge signed and entered an order requiring relator to pay $15,000 into the ad litem's trust account. Upon relator's failure to pay the money into his trust account, the ad litem filed a Motion for Contempt and/or Motion for Sanctions. At a contempt hearing on the motion, the ad litem, relator, and her parents testified as to the nature of the sums and relator's ability to pay them.

After hearing the testimony, the trial judge concluded relator's failure to pay the ad litem's costs were preventing the ad litem from conducting discovery needed to prepare his case in the best interest of the child. The judge ordered her to pay $15,000 into the ad litem's trust account by January 23, 1989, or he would strike her pleadings and would not allow her to introduce evidence or call witnesses at trial.

Relator then filed her petition for writ of mandamus seeking relief from the trial judge's order. She complains that the order in question is not enforceable through discovery sanctions and, further, that she is financially unable to comply with the order.

THE NATURE OF THE ORDER

Section 11.11 of the Texas Family Code provides that in a suit affecting the parent-child relationship, the court may enter a temporary order for the safety and welfare of the child. Temporary orders may include orders for payment of reasonable attorney's fees and expenses. TEX.FAM.CODE ANN. § 11.11(a)(5) (Vernon 1986). Pursuant to § 11.11, the trial judge had authority to order relator to pay the money as either expenses or attorney's fees.

Relator contends the trial judge's order was for payment of the ad litem's attorney's fees, not costs or expenses related to discovery. Accordingly, relator contends that sanctions usually available for abuse of discovery were not available to the trial judge and he abused his discretion when he imposed discovery sanctions and ordered her pleadings stricken. The trial judge and the ad litem respond that the money was to fund discovery the ad litem needed to represent the best interests of the child.

In a mandamus proceeding, it is relator's burden to file all relevant exhibits when the motion for leave to file petition for writ of mandamus is filed. The record before this court includes the statement of facts from the contempt hearing, the ad litem's motions, and the resulting orders of which relator complains. In addition, the respondent trial judge has included with his brief several docket sheets relevant to the orders in question. As demonstrated below, consideration of the record shows the judge's order was intended to allow discovery and, as such, was properly enforced with discovery sanctions.

In his "Motion for Deposit of Costs," considered on October 11, 1988, the ad litem requested "his attorney's fees be taxed as costs and ordered paid directly to the Attorney/Guardian Ad Litem" (emphasis added). The trial judge ordered relator to pay $15,000 as security for costs of Guardian Ad Litem before November 11, 1988:

IT IS ORDERED that STACIE DENEISE SHIRLEY pay directly to Guardian/Attorney Ad Litem ... to be deposited in his trust account as security for costs of Guardian/Attorney Ad Litem, the amount of FIFTEEN THOUSAND and No/100 Dollars ($15,000.00) ... (emphasis added).

Later, in his "First Amended Motion for Contempt and/or Motion for Sanctions and Notice of Hearing," the ad litem alleged that "Respondent's failure to pay said interim fees is preventing the minor child's attorney from properly preparing for trial." (emphasis added).

On January 4, 1989, the court held a hearing on the ad litem's motion for contempt. The statement of facts from the contempt hearing is part of the record before this court. At the hearing, the ad litem testified he had absorbed some expense of discovery himself and had exhausted $5,000 paid into his trust account by Charles Shirley. He testified he had been precluded from undertaking further discovery because of relator's failure to comply with the order. In particular, he stated he needed to travel to Dallas to speak with FBI agents about a related case and also wished to obtain some of Charles Shirley's employment records but had been unable to do so because of lack of funds. After the hearing, the court found that "Respondent's failure to pay said interim fees has prevented and is preventing the minor child's attorney from properly preparing for trial and from conducting the required discovery in this case." (emphasis added).

On January 5, 1989, the court signed another "Order for Deposit and Release." That order specifically stated the $15,000 was to be "used for independent and adequate representation of the minor child and for discovery relating to the above-styled case." (emphasis added). The order gave relator until January 23, 1989 to pay the money.

Also on January 5, the court, in its "Order on Motion For Sanctions," granted the motion for sanctions and ordered respondent's pleadings stricken if she did not pay the $15,000 into the ad litem's trust fund by the January 23 deadline. The trial judge also ordered that respondent not be allowed to introduce matters into evidence or call witnesses at the time of trial if the $15,000 was not paid as ordered.

As further evidence of the nature of the orders in question, the trial judge has included copies of docket sheets in the instant case. We have examined those docket sheets, and it is clear that most of the hearings and orders between May 1986 and the present have involved discovery. In addition, there is evidence from the hearing and the docket sheets that the trial judge bifurcated the request for interim attorney's fees and awarded fees only for pre-trial preparation and discovery.

In pertinent part, Rule 215(2)(b) of the Texas Rules of Civil Procedure states:

If a party ... fails to ... obey an order to provide or permit discovery ... the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just ... (emphasis added).

Rule 215 goes on to list certain non-inclusive sanctions for abuse of discovery. One of the sanctions enumerated under Rule 215 is the striking of a party's pleadings upon its failure to comply with a discovery order. TEX.R.CIV.PRO. 215(2)(b, 5).

We believe, from the foregoing, that the purpose of the January 5, 1989 order was to allow the ad litem to conduct discovery to represent the best interests of the child. Further, the order was intended to secure relator's compliance with the earlier order of November 11, 1988.

Relator argues that the instant case is governed by Baluch v. O'Donnell, 763 S.W.2d 8 (Tex.App.--Dallas 1988, n.w.h.). We disagree. Baluch involved an order requiring the husband in a divorce suit to pay his wife's interim attorney's fees. When the husband failed to make the payments, the trial judge in that case ordered his pleadings stricken. Upon the husband's petition for writ of mandamus, the court of appeals granted relief finding that the trial judge's use of a discovery sanction was inappropriate to enforce an order to pay attorney's fees. While in the present case there has been much said about attorney's fees, the language of the orders as well as the testimony at the contempt hearing make it clear that the money in the present case was to be used for discovery costs and expenses, not attorney's fees. We, therefore, hold that Baluch is inapplicable to the present case.

DISCOVERY SANCTIONS IN THIS CASE

Relator argues that even if the order in question were an order...