Valdez v. Valdez
| Decision Date | 15 August 1996 |
| Docket Number | No. 01-94-00828-CV,01-94-00828-CV |
| Citation | 930 S.W.2d 725 |
| Parties | Shawni VALDEZ and Dan Hennigan, Appellants, v. Adam VALDEZ, Domingo Valdez and Elvira Valdez, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Dan Hennigan, Houston, for appellants.
Leonel Torres, Alvin, Jeannette G. Shane, Manvel, for appellees.
Before SCHNEIDER, C.J., and ANDELL and HEDGES, JJ.
Shawni Valdez (mother) and Dan Hennigan, her attorney, appeal a judgment rendered in favor of appellees Adam Valdez (father), and Domingo and Elvira Valdez (grandparents), in an action to modify in a suit affecting the parent-child relationship. The mother and Hennigan bring 12 points of error, contending that the trial court erred in: (1) awarding sanctions against the mother and Hennigan; (2) removing the mother as managing conservator; (3) making findings that support the mother's removal as managing conservator; (4) appointing the father as primary joint managing conservator; (5) ordering the mother to pay the father's and the grandparents' attorneys' fees; and (6) ordering the mother to pay expert testimony fees to the father's and the grandparents' expert. We (1) reverse and render in part, and (2) modify, and, as modified, affirm in part.
The mother and father were divorced on July 13, 1992. The mother was designated primary joint managing conservator, and the father and grandparents were named joint managing conservators of the child of the marriage, Kristee Leigh Valdez, then five years old.
On June 26, 1993, the grandparents filed a motion to modify in the suit affecting the parent-child relationship, and the father filed a cross-motion for modification. Following a hearing on August 12, 1993, the trial court entered temporary orders in which the father was named temporary primary joint managing conservator of the child. The mother and the grandparents were named temporary joint managing conservators with assigned visitation rights.
On March 10, 1994, the grandparents filed a motion for sanctions against the mother based on discovery abuse. The mother and her counsel failed to appear at the hearing on the sanctions motion held March 31, 1994. Pursuant to TEX.R.CIV.P. 215(3), on April 8 1994, the trial court imposed sanctions on the mother or her counsel of $1391.70, and struck the mother's pleadings.
On May 17, 1994, the trial court heard the father's cross-motion to modify in the suit affecting the parent-child relationship. The mother and her counsel appeared at the first docket call, and all parties had a conference in chambers. At that conference, the trial judge ordered all parties to return at 1:30 p.m. the same day for a final hearing. When the mother and her counsel did not appear at 1:30 or thereafter, the proceeding was heard, and the trial court issued its orders.
On June 9, 1994, the mother filed a motion to set aside the sanctions imposed in the April 8 order. The court set a June 30, 1994, hearing on the mother's motion.
On June 30, the hearing on the mother's motion to set aside the sanctions was held. The mother and her attorney did not appear. The trial court dismissed the mother's June 9 motion to set aside the sanctions and ordered the mother or her attorney to pay $1500 in attorney's fees to the grandparents' attorney and $1500 in attorney's fees to the father's attorney.
On July 18, 1994, the mother filed a motion seeking to set aside the June 30 order. On July 26, 1994, the trial court set aside the June 30 order only as to the award of attorney's fees. The July 26 order left in place the sanctions imposed in the April 8 sanctions order.
In point of error one, Dan Hennigan, attorney for the mother both at trial and on appeal, contends that the trial court erred in imposing sanctions against him without notice that he was at risk of such penalty. Nowhere in the grandparents' motion for sanctions is there a request for sanctions against Dan Hennigan. Rather, the motion requests sanctions only against the mother. Hennigan argues that sanctions imposed without notice are invalid because they violate the due process clause of the United States Constitution.
Although Hennigan did file a motion to set aside the sanctions order on behalf of the mother, he filed no motion on his own behalf. Nor does the motion he filed on behalf of the mother notify the trial court that Hennigan was himself also complaining about the sanctions in the same motion as the mother's. The text of the motion he filed for the mother begins by stating, "COMES NOW, Movant, SHAWNI VALDEZ, and in support of this motion would show as follows." In neither the style nor the text of the motion are the sanctions against Hennigan even mentioned.
We hold that Hennigan has waived this complaint on appeal because he never complained of the sanctions against him to the trial court, and thus he never gave the trial court the opportunity to correct the alleged error. He never complained to the trial court that he had no notice that sanctions could be imposed against him; the first time this complaint is made is on appeal. Under Texas Rule of Appellate Procedure 52(a), in order to preserve a complaint for appellate review, a party must have presented a request, objection, or motion to the trial court stating specific grounds for the ruling desired. TEX.R.APP.P. 52(a). A ruling from the trial court on the request, objection, or motion must be obtained. Id. This rule applies, inter alia, to constitutional challenges. See, e.g., City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986) (per curiam); Cannon v. Lemon, 843 S.W.2d 178, 183 (Tex.App.--Houston [14th Dist.] 1992, writ denied).
We are not holding that Hennigan was required to file a separate motion on his own behalf to preserve error. His joining the mother's motion would have sufficed. But, because he took neither option, he has not preserved error.
We overrule point of error one.
In point of error two, the mother contends that the trial court erred in awarding sanctions against her because "notice of sanctions ordered to be given by the trial court was never given."
In an order dated March 11, 1994, the trial court set a hearing date of March 31 on the grandparents' motion for sanctions and ordered that "the clerk will issue notice to Respondent [the mother]." In its order on motion for sanctions dated April 8, 1994, the trial court found that "reasonable notice of hearing date on motion for sanctions was given to Disobedient Party's Attorney." 1
In her motion to set aside order on motion for sanctions, filed on June 9, 1994, the mother complained to the trial court that she did not receive notice of the March 31 hearing from the court clerk. The trial court set a hearing on her motion for June 30, 1994. In its June 30, 1994, order on the mother's motion to set aside sanctions, the trial court found that neither the mother nor her attorney appeared at the June 30 hearing, dismissed the mother's June 9 motion, and ordered the mother to pay additional attorney's fees. 2 There is no record of the March 31 hearing in the statement of facts.
It was the mother's burden to establish on the record that she did not receive notice of the sanctions hearing held on March 31, 1994. See HBA East, Ltd. v. JEA Boxing Co., Inc., 796 S.W.2d 534, 539 (Tex.App.--Houston [1st Dist.] 1990, writ denied). Because she failed to appear at the June 30 hearing, which was to decide the mother's complaint that she did not receive notice of the March 31 hearing, the mother cannot present a record that would support this point. No evidence in the record supports it, and the mother failed to appear at the hearing that would have afforded her a chance to present favorable evidence on the issue.
We overrule point of error two.
Texas Family Code Section 14.081(2)(d)
In point of error seven, the mother contends that the trial court erred in removing Shawni Valdez as joint managing conservator under TEX.FAM.CODE ANN. § 14.081(2)(d) for the reason that there is no section 14.081(2)(d) of the Family Code.
The orders on cross-motion to modify state that "the court on its own motion as provided by Section 14.081(2)(d) of the Texas Family Code, ORDERED that SHAWNI VALDEZ be removed as a Joint Managing Conservator and the Court ORDERED that SHAWNI VALDEZ be appointed as Possessory Conservator of the Child." The order should properly have been granted under former TEX.FAM.CODE ANN. § 14.081(d) (Vernon Supp.1995). 3 Because it is obvious that the trial court committed a clerical error, we will modify the judgment of the trial court by correcting the reference to the specific Family Code section. TEX.R.APP.P. 80(b)(2).
In points of error three through six, appellant challenges the legal and factual sufficiency of the evidence to support the findings that (1) the welfare of the child was a matter of serious and immediate concern and (2) the circumstances of the child and of the managing conservator, Shawni Valdez, had substantially changed since the rendition of the original custody decree.
TEX.FAM.CODE ANN. § 14.081(d) (Vernon 1995) provided that After a hearing, on the motion of one or both of the joint managing conservators or on the court's own motion, a court may replace a joint managing conservatorship with a sole managing conservatorship if:
(1)(A) the welfare of the child is a matter of immediate and serious concern;
(B) there has been a substantial and unexcused violation of the terms and conditions established in the existing conservatorship decree; or
(C) the circumstances of the child or of one or both of the joint managing conservators have so materially and substantially changed since the rendition of the decree that it has become unworkable or inappropriate under existing circumstances; and
(2) the appointment of a sole managing...
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