Watts v. Oliver

• Decision Date: 24 January 2013
• Docket Number: No. 14–11–00637–CV.,14–11–00637–CV.
• Citation: 396 S.W.3d 124
• Parties: Richard Mark WATTS, Appellant v. Ruth OLIVER, Appellee.
• Court: Texas Court of Appeals

396 S.W.3d 124

Richard Mark WATTS, Appellant

v.Ruth OLIVER, Appellee.

No. 14–11–00637–CV.

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

Jan. 24, 2013.

Daniel Jake Lemkuil, Houston, for Appellant.

Sallee S. Smyth, Joel A. Nass, Houston, for Appellee.

Panel consists of Chief Justice HEDGES and Justices JAMISON and BUSBY.

OPINION

MARTHA HILL JAMISON, Justice.

In this appeal from a final order in a suit to modify the parent-child relationship, appellant Richard Mark Watts complains that the trial court erred by: (1) limiting expert testimony relevant to the child's best interest; (2) failing to enter findings of fact and conclusions of law; (3) awarding Ruth attorney's fees when Richard's petition was not frivolous; (4) awarding Ruth advisory appellate attorney's fees; and (5) transferring the case to Harris County on the court's own motion. For the reasons explained below, we modify a portion of the trial court's judgment and affirm as modified.

Background

Richard and Ruth were married in 1996. In 2003, they had a son, R.A.W. Richard and Ruth were divorced by a final decree of divorce signed May 23, 2007, as supplemented by an order signed August 3, 2007. The decree was signed by the judge of the 387th District Court of Fort Bend County. At the time of the divorce, Ruth and R.A.W. lived in Bellaire, Texas, and Richard was living in Houston. After the divorce, Richard moved to Missouri City. The parties had many disagreements concerning R.A.W.'s upbringing; communication and co-parenting problems were ongoing.

About a year after the divorce, Ruth made plans to remarry and move to Cypress, Texas. On August 5, 2008, Ruth notified Richard by email of her plans to move and relocate R.A.W. to a new school. Richard objected to the move and five days later filed suit seeking to change primary custody of R.A.W. Ruth filed a counter-petition to modify, requesting her own affirmative relief.

Trial began on February 28, 2011, and proceeded off and on for eight days, ending on April 14, 2011. After Richard rested, the trial court partially granted Ruth's request for judgment. When Ruth concluded her case the next day, the trial court denied Richard's request to change primary custody and rendered judgment on the remaining issues. The trial court signed a final order on May 24, 2011. Richard filed a request for findings of fact and conclusions of law and a one-page motion for new trial. The trial court did not make findings of fact and conclusions of law, and Richard's motion for new trial was overruled by operation of law. This appeal followed.

Abuse of Discretion

Richard complains that the trial court erred or abused its discretion by: (1) limiting expert testimony relevant to the child's best interest; (2) failing to sign findings of fact and conclusions of law; (3) awarding Ruth attorney's fees when Richard's petition was not frivolous; (4) awarding Ruth appellate attorney's fees that were advisory; and (5) transferring the case to Harris County on the court's own motion.

Because a trial court has broad discretion to decide the best interest of a child in family-law matters such as custody, visitation, and possession, we review a trial court's modification ruling under an abuse-of-discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze or apply the law. In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We also review the trial court's decision to exclude evidence and to award attorney's fees for abuse of discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005) (per curiam) (decision to admit or exclude evidence); In re C.Z.B., 151 S.W.3d 627, 634 (Tex.App.-San Antonio 2004, no pet.) (decision to grant or deny award of attorney's fees and costs).

1. Limitation on Expert Testimony

In his first issue, Richard contends the trial court erred in limiting the expert testimony of Dr. Kit Harrison, a psychologist who had provided counseling and therapy to Richard. According to Richard, the trial court's limitation on Dr. Harrison's testimony was an excessive discovery sanction that harmed Richard's case because the trial court declined to hear testimony that was relevant to the best interest of the child. Ruth responds that Richard has waived his complaint by failing to make an offer of proof specifically summarizing Dr. Harrison's anticipated testimony and its relevance.

Before trial resumed on April 13, 2011, the trial court and counsel for the parties had discussions off the record about additional witnesses that may be called and the length of time remaining for trial. On the record, Ruth objected to Richard's intention to call Dr. Harrison, asserting that Richard had failed to timely supplement discovery regarding this witness and requesting that his testimony be excluded. In response, Richard offered this summary of Dr. Harrison's testimony:

We'll offer testimony regarding efforts taken by [Richard] to co-parent with [Ruth] and to minimize conflicts with the child.

We'll also offer testimony regarding the effects of [Ruth's] actions on the child, potentially on the child's relationship with both parents.

We'll also offer testimony regarding general psychological issues affecting children of divorced parents and of parents who engage in actions [Ruth] has engaged in and [Richard's] efforts in working with Dr. Harrison to minimize such harm to the child.

The trial court ruled that Dr. Harrison's testimony would be limited in scope to therapy he had provided to Richard; however, the trial court specified that if Dr. Harrison's testimony were ultimately to rely on documents which had not been timely produced in discovery, Dr. Harrison might be precluded from testifying further.

Later in the day, Richard finished his case in chief with the exception of calling Dr. Harrison. Ruth's counsel objected to calling Dr. Harrison out of order, and at that point the trial court ruled that Dr. Harrison would not be allowed to testify. Ruth then moved for judgment on some of the affirmative relief Richard requested. The trial court granted a partial judgment on certain issues, but did not rule on Richard's request for a modification of primary conservatorship.

When trial resumed the next morning, the trial court announced that it had reconsidered its decision regarding Dr. Harrison's testimony. The trial court advised that Dr. Harrison would be allowed to testify that day over Ruth's objection, but his testimony remained limited to Dr. Harrison's therapy with Richard. Richard then presented Dr. Harrison's testimony. After Dr. Harrison testified, Richard did not ask the trial court to reconsider its earlier decision to grant judgment on some of Richard's requested relief, nor did Richard seek to make an offer of proof regarding the substance of Dr. Harrison's excluded testimony to augment the brief summary provided the day before.

Initially, we consider Ruth's contention that Richard has not preserved his complaint about the trial court's ruling limiting Dr. Harrison's testimony because he failed to make an offer of proof concerning the excluded testimony. See Tex.R. Evid. 103(a)(2). Rule 103(a) provides that error may not be predicated on a ruling that excludes evidence unless a substantial right of the party is affected, and the substance of the objection was made known to the trial court by offer of proof. Id.

In response, Richard argues that it was not necessary for him to have demonstrated the substance of what Dr. Harrison would have testified to, because the arbitrary restriction of his testimony alone was sufficient error to reverse and remand. To support his contention, Richard cites two cases from this court, Van Heerden v. Van Heerden, 321 S.W.3d 869 (Tex.App.-Houston [14th Dist.] 2010, no pet.) and In re N.R.C., 94 S.W.3d 799 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). These cases, however, do not hold that error preservation is not required when a trial court excludes part of a witness's testimony in a suit affecting the parent-child relationship.

In both Van Heerden and N.R.C., this court considered whether striking all fact witnesses of a party as a discovery sanction in a suit involving conservatorship issues constituted an excessive sanction that probably caused the rendition of an improper judgment. See Van Heerden, 321 S.W.3d at 877–79;In re N.R.C., 94 S.W.3d at 812–13. Here, however, the trial court did not strike all Richard's fact witnesses; the trial court merely limited the testimony of one witness. Further, in Van Heerden, failure to preserve error was not alleged regarding the excluded evidence. See321 S.W.3d at 876–77. An error-preservation issue was raised in N.R.C., and this court concluded that the appellant's offer of proof concerning three witnesses was sufficient because the offer described the substance of the proposed testimony, included a detailed letter prepared by one of the witnesses, and referenced the best interests of the child. See94 S.W.3d at 806. These cases cited by Richard did not hold that an adequate offer of proof was not necessary to preserve error.

To adequately and effectively preserve error, an offer of proof must show the nature of the evidence specifically enough so that the reviewing court can determine its admissibility. In re N.R.C., 94 S.W.3d at 806. The offer of proof may be made by counsel, who should reasonably and specifically summarize the evidence offered and state its relevance, unless already apparent. Id. If counsel makes such an offer, he must describe the actual content of the testimony and not merely comment on the reasons for it. Id.

Richard argues that Dr. Harrison's expertise could have provided “substantial evidence to support the merits of Richard's claims.” But his counsel's description of Dr. Harrison's anticipated testimony at trial does not describe the actual...