Wright v. Wright

• Decision Date: 03 November 1993
• Docket Number: No. 08-92-00456-CV,08-92-00456-CV
• Citation: 867 S.W.2d 807
• Parties: Karla A. WRIGHT, Appellant, v. Kenneth D. WRIGHT, Appellee.
• Court: Texas Court of Appeals

Page 807

867 S.W.2d 807

Karla A. WRIGHT, Appellant, v. Kenneth D. WRIGHT, Appellee.

No. 08-92-00456-CV.

Court of Appeals of Texas,

El Paso.

Nov. 3, 1993.

Rehearing Overruled Dec. 1, 1993.

Walter E. Wilson, Odessa, for appellant.

R.C. 'Eric' Augesen, Odessa, for appellee.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from an order modifying child support and visitation. Trial was to the court. In twelve points of error, Appellant asserts that the trial court erred and abused its discretion in entering its order modifying support and visitation, in denying Appellant's Motion for New Trial, and in failing to recuse itself prior to the entry of its final order. We affirm the judgment of the trial court.

I. SUMMARY OF THE PROCEEDINGS

Karla A. Wright, Appellant, and Kenneth D. Wright, Appellee, were divorced on May 28, 1991. Appellant was named as the sole managing conservator of the Wrights' two minor children. Appellee was named as the possessory conservator. The original decree of divorce ordered that Appellee "shall have possession of the children at all times as the parties may mutually agree, and failing mutual agreement, then such visitation as established by Section 14.033 of the Texas Family Code." Additionally, the decree ordered Appellee to pay child support in the amount of $563 per month and to maintain, at his sole cost and expense, medical, dental, health, and general hospitalization insurance for the children. Moreover, each party was ordered to pay 50 percent of all health care expenses of the children that are not paid by insurance.

On March 2, 1992, less than one year after entry of the original decree of divorce, Appellant filed her first Motion to Modify the decree. In her Motion to Modify, Appellant sought to have the amount of child support increased to meet the guidelines established by the Family Code as well as restrict Appellee's visitation privileges. In response, Appellee filed a Cross-Motion to Modify, seeking an order allowing either parent to designate a competent adult to pick up and/or return the children, as applicable, after periods of visitation. On May 18, 1992, Appellant filed her Amended Motion to Modify alleging additional facts in support of her desire to have Appellee's visitation restricted.

The trial court conducted a hearing on June 15, 1992 at which time the parties announced to the court that they had agreed that Appellee would continue to maintain the hospitalization on the children and pay 50 percent of any uncovered medical expenses. The parties further announced to the court that they had agreed to the visitation guidelines of the standard possession order as set forth in the Family Code, including the use of "designated persons" to pick up and return the children. At the hearing, the trial court recalculated the amount of child support, and based on new income figures for Appellee, the trial court increased the amount of support to $618 per month. Appellant objected to the trial court's calculation and determination of Appellee's net resources from which to determine the amount of support due on the basis that the trial court erroneously deducted the cost of hospitalization insurance for the children, which was to be paid by Appellee from his gross income. At the close of the hearing, the trial court orally pronounced "That will be the new order ...," referring to the purported agreement between the parties and the recalculated support. The trial court further directed Appellant's attorney to prepare the order for it's signature.

The record shows that the trial court's order orally pronounced at the close of the June 15 hearing, was never reduced to writing and entered as a judgment as the parties were unable to agree to the specific terms of the order to be entered. The disagreement between the parties centered around the definition and usage of the "designated competent adult" to pick up and return the children before and after periods of visitation. Appellant contends that Appellee was abusing this right by allowing his parents to pick up the children at the designated time, but hours prior to his arrival from out-of-town for his visitation period and keeping them until the designated time for return, but hours after his departure to his place of residence in San Antonio, Texas.

On July 17, 1992, Appellant filed her Motion for New Trial requesting a new hearing on her Motion to Modify. A Second Amended Motion to Modify was filed on September 11, 1992. This Motion to Modify was set for hearing on September 21, 1992.

At the September 21 hearing, Appellant presented evidence of Appellee's alleged misconduct during his visitation periods. ¹ At the close of the hearing, the judge announced that he found no reason to deviate from the standard Family Code Provisions for support and visitation. The Order on Motions to Modify in Suit Affecting the Parent-Child Relationship was signed on that same day. On September 25, 1992, Appellant filed a request for findings of fact and conclusions of law. These findings and conclusions were signed and filed by the trial court on October 1, 1992. Thereafter, Appellant filed a Motion to Suspend Judgment During Appeal on October 7, 1992 and a Request for Additional or Amended Findings or Conclusions that same day.

The trial court, in its findings of fact, filed subsequent to the September 21 hearing, found that its order followed the Family Code guidelines established for support and visitation. In its conclusions of law, the trial court ruled that TEX.FAM.CODE ANN. § 14.053(b) (Vernon Supp.1993) provides that expenses for health insurance for the children are to be subtracted from the obligor's gross income in determining his net resources for the child support calculation. Additionally, the trial court ruled that Section 14.033(g)(4) allows a possessory conservator to designate a competent adult to pick up and return the children.

On October 14, 1992, Appellant filed her Motion to Recuse the trial judge. Appellant's Motion to Recuse was filed in response to the trial court's letter of October 13, 1992 to the parties informing them that another judge had been assigned to hear Appellant's Motion to Suspend Judgment. Subsequently, Appellant filed another Motion for New Trial on October 16, 1992 and an Amended Motion for New Trial on November 13, 1992. On November 20, 1992, Appellant's Motion to Suspend Judgment and Motion for New Trial were both denied by an assigned judge.

II. DISCUSSION

A. Motion for New Trial

In Points of Error Nos. One and Two, Appellant asserts that the trial court erred and abused its discretion in denying her Motion for New Trial. Specifically, Appellant's Motion for New Trial was based on Appellee's alleged fraudulent inducement of Appellant to enter into the original agreed judgment and the alleged perjured testimony of Appellee resulting in the trial court's order of September 21, 1992. A refusal to grant a motion for a new trial is tested by the abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 886 (Tex.App.--Houston [1st Dist.] 1988, no writ). An appellate court should reverse a trial court for abuse of discretion only when "after searching the record, it is clear that the trial court's decision was arbitrary and unreasonable." Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex.1987).

Appellant asserts that Appellee induced her into entering into the agreement at the June 15, 1992 hearing by fraudulently misrepresenting his intended use of the designated competent adult and his projected income figures for 1992. These misrepresentations induced Appellant to agree to the modified order of June 15 which was never signed by the court, and waive hearings on her motions for sanctions and contempt pending at that time. The record, however, is void of any such extrinsic fraud. Extrinsic fraud is a wrongful act committed by an opposing party that prevents a party from knowing about her rights or defenses, or from having a fair opportunity to present them at trial. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001 (1950); Lee v. Johnson, 858 S.W.2d 58, 60 (Tex.App.--Houston [14th Dist.] 1993, n.w.h.). The record reflects that both parties were fully represented by counsel at the June 15 conference and hearing, and both announced to the court that an agreement had been reached. Further, Appellant had full opportunity to raise any concerns about the use of the designated competent adult and amount of child support at the September 21 hearing on the Motion to Modify.

Appellant next asserts that the September 21 order was based on the perjured testimony of Appellee. The record shows that while Appellee testified at the September 21 hearing that it was not his intent to use the designated competent adult as a means of giving his parents access or visitation rights to the children, he did testify at a subsequent hearing on November 9, 1992 that he wanted his parents to be able to spend time with the children.

Appellant claims that these inconsistent statements demonstrate that Appellee intended all along to use the designated competent adult privilege as a means of giving his parents a form of visitation; thus making his earlier testimony perjurious. We disagree. The record clearly demonstrates that the parties have a good-faith dispute as to the scope of the designated competent adult privilege. Appellant, citing no authority, asserts that any amount of time in excess of one hour is tantamount to grandparent visitation. This dispute does not render Appellee's earlier testimony, that he did not intend to use the privilege as a means of visitation for his parents, perjurious.

We find that the trial court's denial of Appellant's Motion for New Trial was not arbitrary and unreasonable and was not an abuse of discretion. Accordingly, Appellant's Points...