White v. Blake

• Decision Date: 26 July 1993
• Docket Number: 12-92-00400-CV and 12-92-00401-CV,Nos. 12-92-00386-C,s. 12-92-00386-C
• Citation: 859 S.W.2d 551
• Parties: James Ronnie WHITE, Relator, v. The Honorable Ruth J. BLAKE, Judge, 321st Judicial District Court of Smith County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 551

859 S.W.2d 551

James Ronnie WHITE, Relator, v. The Honorable Ruth J. BLAKE, Judge, 321st Judicial District

Court of Smith County, Texas, Respondent.

Nos. 12-92-00386-CV, 12-92-00400-CV and 12-92-00401-CV.

Court of Appeals of Texas,

Tyler.

July 26, 1993.

Rehearing Denied Aug. 13, 1993.

Deborah Race, Tyler, for relator.

Donald Killingsworth, Tyler, Ad Litem.

Bryan Johnston, Tyler, for respondent.

BILL BASS, Justice.

Relator James Ronnie White ("Relator"), a resident of the State of Alabama, comes before us this time ¹ on three original mandamus proceedings. Each arises out of Respondent's exercise of jurisdiction over Relator's daughter, K_B_W_ and Relator's relationship with and access to her. Because of the complex background of these cases, we will first outline the sequence of events which led to these proceedings.

In 1983, Relator and Talisa Cassel ("Mrs. Cassel") were divorced by decree entered by the Houston County Court in Houston County, Alabama. They were found to be the parents of a child, K_B_W_. By agreement of the parties, incorporated into the divorce decree, Mrs. Cassel was given custody (equivalent, in Texas, to managing conservatorship) of K_B_W_, and Relator was granted reasonable visitation. Relator was to pay child support. Mrs. Cassel thereafter married Scott Cassel ("Mr. Cassel").

The terms of the original decree were subsequently modified on November 25, 1986. Apparently Mrs. Cassel alleged that the Relator had committed various acts of sexual abuse upon K_B_W_ and sought to terminate his rights of visitation in the Circuit Court of Houston County, Alabama, Family Division ("Family Court"). The Alabama Family Court entered the following findings:

1. [T]he Court does not find that [Relator] has in any way sexually abused or molested the minor child of the parties as is claimed by [Mrs. Cassel]. However, the Court does find that, for whatever reason, [Mrs. Cassel] is genuinely but mistakenly sincere in her claims.

2. that [Mrs. Cassel's] animosities toward [Relator], false claims toward [Relator], and denying the minor child association with her father, are actions which are in and of themselves seriously harmful to the minor child and not in the child's best interests.

3. that putting the minor child through further questioning concerning the claims in this case, testing, evaluation, or treatment would be detrimental to the minor child.

The Alabama court ordered all treatment, testing and questioning of the child to stop. Relator was given specific unsupervised visitation with the child. The Alabama court further ordered that "[I]n order to assure that [Relator] is allowed to exercise such visitation in that [Mrs. Cassel] has failed to abide by previous Orders of this Court and has indicated that she might not abide by the present Order of this Court, the Houston County Department of Human Resources is given joint custody of the minor child of the parties, [K_B_W_], along with [Mrs. Cassel] until further order of the Court." Mrs. Cassel was ordered to pay her own attorneys fees, the cost of investigative psychological examinations and the guardian ad litem's fee.

Subsequently, the case was transferred from the Family Court to the District Court, Juvenile Division ("Juvenile Court") of Houston County, Alabama. In June, 1990, the Department of Human Resources ("DHR") petitioned the court to be relieved from its partial custody of the child. In its sworn petition, the DHR social worker stated that both parents had cooperated with her with respect to visitation between the child and Relator and DHR's control of the child was no longer necessary for the best interests of the child. The DHR requested that instead of a custodial role, it be placed in a role of supervising the visitation between the child and Relator. By order signed July 12, 1990, the judge of the Juvenile Court granted DHR's motion.

In November of 1990, Relator filed a Petition to Modify and Petition to Terminate and Revoke Protective Supervision. In that petition, Relator alleged that he had been denied visitation with his child, that the DHR had not enforced any visitation with the child and that the child was not in need of supervised visitation with him. He proposed a schedule of visitation. Apparently a hearing on Relator's petition was set for December 19, 1990. After three continuances sought by Mrs. Cassel's counsel, Relator filed a motion to dismiss his petition in Juvenile Court, which the Juvenile Court Judge granted on March 22, 1991.

At about the same time as the dismissal of the action in Juvenile Court, Relator filed a Motion to Enforce Visitation Rights and Motion to Terminate and Revoke Protective Supervision of D.H.R. in Family Court. The motion was essentially the same as the one dismissed by the Juvenile Court. On June 24, 1991, the Family Court issued a pendente lite order regarding visitation, counseling of all parties, and past due child support. Mrs. Cassel filed motions to set aside that order and sought to enforce the previous order of the Juvenile Court. On October 2, 1991, the Juvenile Court issued an order asserting exclusive jurisdiction over the child and enjoining the parties from seeking relief in the Family Court. Thereafter the Family Court issued an order exercising authority over the child and enjoining the parties from seeking relief in the Juvenile Court. The jurisdictional dispute between the Alabama courts was resolved when Relator sought a writ of prohibition from the Alabama Court of Civil Appeals against the Juvenile Court. On February 28, 1992, that court found that the Juvenile Court was without jurisdiction to decide visitation with the child and the writ was issued prohibiting the judge of the Juvenile Court from assuming jurisdiction of the case involving visitation and custody. Mrs. Cassel sought mandamus relief from the Appeals Court decision in the Alabama Supreme Court. Her petition was denied on June 16, 1992.

In October of 1991, while the intrastate jurisdictional battle was being waged, Mr. and Mrs. Cassel took K_B_W_, and they moved to Smith County, Texas. Following the Alabama Appellate Court's decision of February 28, 1992, Relator filed an Amended Petition for Contempt and for Modification of Divorce Decree for Custody in Family Court. He alleged that Mrs. Cassel had not permitted him to visit the child since September 1991, since which time he had neither heard from the child nor been informed of her whereabouts. After alleging a material change in circumstances, Relator alleged that placing sole custody of K_B_W_ with him would be in her best interests.

After a hearing on June 2, 1992, at which both Relator and Mrs. Cassel were present, the Family Court entered an order on June 3, 1992 pertaining to the contempt issues presented in Relator's amended petition. In that order it found that Mrs. Cassel was in contempt of court for failure to comply with its previous order regarding visitation, and that Mrs. Cassel had moved K_B_W_ to Texas and failed or refused to notify Relator that she had moved or provide him with her address. Further the court found that Mrs. Cassel had contemptuously "sought to refuse all efforts by the Courts to promote a relationship of the father and daughter," and provided that "the Court shall take under submission the issue of custody between the parties." Mrs. Cassel was found in contempt and taken into custody. Later that day, the Family Court entered an amended order reducing the amount of bond required for Mrs. Cassel's release and conditioned her release from custody upon "it being made known to the Court that the said child is available for visitation and upon her posting the said bond."

On June 24, 1992, the Alabama court entered an Order of Modification that modified the Final Judgment of Divorce as it pertained to Relator's rights to unsupervised visitation with K_B_W_. The order is prefaced as follows:

The matters before the court for consideration are Mr. White's Petition to secure unsupervised visitation with the minor child of the parties, [K_B_W_], and Amended Petition for Contempt and Custody of said child. A hearing having been held thereon and testimony and evidence having been presented, upon consideration of such, it is hereby ORDERED, ADJUDGED AND DECREED BY THE COURT ... (emphasis added)

Under this June 24, 1992 order, Relator was given unsupervised visitation with the child for "a period of six weeks beginning immediately upon [Relator] receiving the said child into his custody" and on various holidays. Mrs. Cassel was ordered to deliver the child to the home where Relator resided. However, the Family Court expressly reserved its ruling on the issue of custody.

On July 3, 1992, the Alabama Family Court entered an Ex Mero Motu Amendment ² to the order of June 24, 1992: That amendment revised paragraph (1)(a) and (g) to provide:

Paragraph (1)

a. A period of six weeks beginning June 24, 1992. However, if the [Relator] fails to gain possession of the child on that date the visitation period will begin for a period of six weeks upon the date in which he obtains possession of the child.

g. From June 15th through July 15th of each year beginning June 15, 1993, and continuing each year thereafter.

All other provisions of said order are to remain in full force and effect.

Thereafter, on July 6, 1992, the Family Court entered an order addressing the sole remaining issue raised by Relator's amended petition which had been heard on June 2, 1992, and taken under advisement by the Court. In the Court's order of July 6th, the court awarded temporary custody of the child to Relator in addition to the visitation ordered in the June 24 and July 3 orders. The judge specifically recited in that order that the matter was heard on June 2, 1992. In that order the Alabama court also expressly reserved jurisdiction to modify the temporary custody pending a final disposition of permanent custody. The order...