Opinion
No. 07-14-00064-CV
01-08-2016
PATRICK BYARS, APPELLANT v. MELANIE LEA EVANS, APPELLEE
On Appeal from the 325th District Court Tarrant County, Texas
Trial Court No. 325-517194-12; Honorable Judith G. Wells, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Patrick Byars, appeals the trial court's order denying him relief in his suit against Appellee, Melanie Lea Evans, to modify the parent-child relationship existing between them and their three minor children. Presenting seven issues, Patrick alleges (1) the trial court erred in entering a second judgment, which changed the substantive provisions of the first judgment, without granting a new trial; (2) the regional trial judge erred by signing an order denying a properly verified Motion to Recuse without hearing evidence and without setting forth the reasons for its denial; (3) the regional trial judge erred by determining that the Motion to Recuse was not timely filed; (4) the trial court erred by blocking his access to the courts by requiring him to pay attorney's fees prior to filing any further motions regarding the children; (5) the trial court erred by issuing a permanent injunction, prohibiting him from "making racist or homophobic remarks" in the children's presence or hearing; (6) the trial court erred by awarding attorney's fees to be withheld by a withholding order; and (7) the trial court erred by failing to confer with the oldest child the subject of the underlying suit despite a properly filed motion to confer with the child. We modify and affirm.
In the earlier Decree of Divorce, the trial court ordered that Melanie Lea Evans Byars's name be changed to Melanie Lea Evans.
Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this court on any relevant issue. TEX. R. APP. P. 41.3.
BACKGROUND
Pursuant to a mediated settlement agreement, Patrick and Melanie were divorced on July 18, 2011, and were designated joint managing conservators of their three minor sons. Per the final decree, Melanie was granted the exclusive right to designate the primary residence of the children within Tarrant and contiguous counties. Dissatisfied with his visitation schedule, in January 2012, Patrick filed a petition to modify the parent-child relationship alleging the schedule had become unworkable and modification would be in the best interest of the children. Melanie filed a counter-petition requesting modification of Patrick's access to, or possession of, the children. She also requested temporary orders and a permanent injunction on various other matters related to the children. By an amended counter-petition supported by affidavit, Melanie requested the exclusive right to manage the children's education, health and welfare, and designate their primary residence without regard to a geographic restriction. She also requested that Patrick be denied access to the children. She averred in her affidavit that Patrick had terrorized her and her family, made false reports against her which were deemed unfounded, and turned her sons against her.
On June 7, 2013, a hearing was held on the petition and counter-petition for modification, and on October 22, 2013, the trial court signed an order continuing Patrick and Melanie as joint managing conservators. Melanie was granted the exclusive right to designate the primary residence of the children in Tarrant or Dallas counties, but her request to move the children to Florida was conditioned on Patrick's failure to visit the children for three consecutive months for any reason other than deployment, hospitalization, or physical inability. Among other orders, visitation and access by Patrick was conditioned on supervision by his father, the children's paternal grandfather. Additionally, the modification order permanently enjoined Patrick from "making racist or homophobic remarks in the presence or hearing of the children." The trial court awarded Melanie $20,100 as attorney's fees for expenses and costs which were necessary for the support of the children and authorized a wage withholding order to satisfy the award.
A transcription of this hearing is not part of the appellate record.
Twenty days after the trial court signed the modification order, on November 11, 2013, Melanie filed a Motion to Modify, Correct, or Reform Judgment. Her allegations included that the trial court improperly allowed Patrick's father to supervise visitation with the children and improperly denied her request to relocate the children to Florida without the denial being contingent on Patrick's continued adherence to trial court orders.
Following the filing of Melanie's post-judgment motion, Patrick, proceeding pro se, filed a Motion to Recuse alleging the trial judge had a personal bias and/or prejudice in the case. He alleged that his previous attorney had informed him that the trial judge and the amicus attorney were angry with him for filing a grievance against Dr. Raymond Finn, a personal friend of the judge. Simultaneous with the recusal motion, Patrick filed an Amended Motion for New Trial and to Reopen Evidence.
Dr. Finn was counseling the oldest son but withdrew from his care after Patrick filed a complaint against him. The amicus attorney's spouse was also a friend of the trial judge.
Melanie's response to the recusal motion was that it was not timely filed as required by Rule 18a(b) of the Texas Rules of Civil Procedure. After a hearing before the regional judge, Patrick's recusal motion was denied as untimely filed.
On December 2, 2013, a hearing was held on Melanie's Motion to Modify, Correct, or Reform Judgment simultaneously with Patrick's Amended Motion for New Trial. The trial court granted Melanie's motion, denied Patrick's motion, and entered a new order on December 19, 2013, vacating and declaring void the prior modification order of October 22, 2013. Relevant to this appeal, the second order removed the geographical restriction, ordered supervised visitation for Patrick on the condition he timely pay for counseling for the children with proof of the oldest child attending no less than three sessions, enjoined Patrick from "making racist or homophobic remarks in the presence or hearing of the children," awarded Melanie $20,000 for attorney's fees payable by an income withholding order, and conditioned any future filings by Patrick regarding the children on payment of no less than $10,000 of the attorney's fees. Pursuant to Patrick's request, the trial court entered Findings of Fact and Conclusions of Law on February 18, 2014.
Although the trial court's letter ruling awards $20,100, the signed order awards only $20,000.
ISSUE ONE
Patrick argues the trial court erred in granting Melanie's November 11, 2013 Motion to Modify, Correct, or Reform Judgment and entering a second judgment, which changed the substantive provisions of the October 22, 2013 judgment, without granting a new trial. He asserts that Melanie improperly used her post-judgment motion in lieu of a motion for new trial and that the trial court treated it as such while denying his motion for new trial. We disagree.
A post-judgment motion seeking substantive changes in an existing judgment qualifies as a motion to modify, correct, or reform a judgment under Rule 329b(g) of the Texas Rules of Civil Procedure. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). A Rule 329b(g) motion shall specify the respects in which the judgment should be modified, corrected, or reformed. By her post-judgment motion, Melanie specifically requested substantive changes in Patrick's visitation, access to the children, telephone contact, and the geographical restriction.
A trial court has plenary power to reverse, modify, or vacate its judgment at any time before it becomes final. Mathes v. Kelton, 569 S.W.2d 876, 878 (Tex. 1978). Plenary power refers to that period of time in which a trial court may vacate its judgment by granting a new trial or in which it may modify or correct its judgment. In re Gillespie, 124 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). The timely filing of a post-judgment motion extends the trial court's plenary power to reconsider its previous ruling for thirty days after all such timely-filed post-judgment motions are overruled. TEX. R. CIV. P. 329b(e). As long as the trial court has plenary power over the case, it may exercise its discretion and modify the judgment before the judgment becomes final. Dunagan v. Coleman, 427 S.W.3d 552, 557 (Tex. App.—Dallas 2014, no pet.).
The original modification order was signed on October 22, 2013. Melanie filed her post-judgment motion on November 11, 2013, and Patrick filed his motion for new trial on November 15, 2013. The post-judgment motions were timely filed, TEX. R. CIV. P. 329b(a), thereby extending the trial court's plenary power to reconsider its original modification order. Id. at 329b(g). Because the trial court retained plenary power over the October 22, 2013 order, it did not abuse its discretion in vacating that order and entering a new order in its stead.
Patrick also contends the trial court failed to comply with Rule 301 of the Texas Rules of Civil Procedure by entering two different orders without entering two sets of Findings of Fact and Conclusions of Law. We disagree. The modified judgment, the subject of this appeal, was signed on December 19, 2013. Patrick timely filed his request for findings of fact on January 6, 2014, and the trial court entered its findings on February 18, 2014. No findings were entered with regard to the October 22, 2013 order and none were required because that order became a nullity when the trial court entered the December 19, 2013 order. Furthermore, Patrick did not file a request for amended findings. His complaint is without merit and the findings entered by the trial court were sufficient to provide him with information necessary to pursue his appeal. See Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 412 (Tex. App.—Fort Worth 2006, pet. denied).
The trial court did not err in entering a second order changing the substantive provisions of the first order during its period of plenary power. Issue one is overruled.
ISSUES TWO AND THREE—MOTION TO RECUSE
Patrick contends the regional trial judge erred by denying a properly verified Motion to Recuse without hearing evidence and without setting forth the reasons for its denial and by determining that the Motion to Recuse was not timely filed. We disagree.
We review a trial court's denial of a motion to recuse for abuse of discretion. TEX. R. CIV. P. 18a(j)(1)(A); Litman v. Litman, 402 S.W.3d 280, 282 (Tex. App.—Dallas 2013, pet. denied). A motion to recuse must be filed as soon as practicable after the movant knows of the ground stated in the motion and must not be filed after the tenth day before the date set for hearing unless before that day, the movant neither knew nor reasonably should have known that the judge whose recusal is sought would preside at the hearing or that the ground stated in the motion existed. TEX. R. CIV. P. 18a(b)(1). A motion to recuse that does not comply with Rule 18a may be summarily denied without an oral hearing. Id. at 18a(g)(3)(A).
Patrick filed his motion to recuse on November 15, 2013, and a hearing on that motion was held on November 25, 2013. Patrick's grounds for seeking recusal of the trial judge was an alleged bias against him based on the trial judge's friendship with the amicus attorney, the amicus attorney's spouse, and the doctor who was counseling his oldest son against whom Patrick had filed a grievance. By his own admission, Patrick had knowledge of the grounds for recusal well in advance of the time he filed his recusal motion—he had gained the information from his former attorney prior to the June 2013 hearing on the original petition and counter-petition for modification.
By his motion for new trial, Patrick asserted his former attorney refused his request to have his case moved to a neutral setting after learning of the trial judge's potential bias. Obviously, Patrick was aware of his options at that time.
Patrick complains that the order denying his motion to recuse does not state the nature of his noncompliance as required by Rule 18a(g)(3)(A). While Patrick is correct that the written order does not recite the nature of his noncompliance, the error is harmless. At the hearing on his motion, the regional judge unequivocally explained that his motion was being denied because it was not filed "ten days before that trial." i.e., the June 7, 2013 hearing. The regional judge explained that by Patrick's own affidavit, he "knew it well before the actual trial on the merits." The trial court announced, "you should have gone ahead and filed back when you heard about it," and found "this motion was not timely filed, and for that reason it should be dismissed." The regional judge did not abuse his discretion in denying Patrick's motion to recuse and failure to recite Patrick's noncompliance in the written order is harmless.
Patrick maintains his motion was timely because he filed it within ten days of the December 2, 2013 hearing on Melanie's Motion to Modify, Correct, or Reform Judgment effectively dismissing the regional judge's announcement that his motion was untimely as to the June 7, 2013 hearing. Assuming Patrick could file a motion to recuse the trial judge from presiding over a post-judgment hearing, the motion was still untimely. The grounds for recusal were known to Patrick six months earlier and he took a "wait and see" approach at the June hearing on his petition to modify before seeking to recuse a judge he deemed bias. Ex parte Ellis, 275 S.W.3d 109, 123 (Tex. App.—Austin 2008, no pet.); Janicek & Ol'Don v. Kikk Inc., No. C14-94-00228-CV, 1995 Tex. App. LEXIS 799, at *3 (Tex. App.—Houston [14th] Dist. April 13, 1995, writ denied) (mem. op.) (disapproving of the "wait and see" approach before filing a motion to recuse). Not only must a motion to recuse be filed more than ten days prior to the date set for hearing, it must also be filed "as soon as practicable after the movant knows of the ground stated in the motion. . . ." TEX. R. CIV. P. 18a(b)(1)(A). Under those circumstances, we cannot say the presiding judge abused his discretion by denying Patrick's motion to recuse. Issues two and three are overruled.
ISSUE FOUR
By his fourth issue, Patrick maintains the trial court erred by blocking his access to the courts by requiring him to pay Melanie attorney's fees prior to filing any further motions regarding the children. We disagree.
By Finding of Fact 50, the trial court found that Patrick's modification suit was "filed frivolously and designed to harass Melanie Evans." The trial court's order provides that "except upon good cause shown by sworn affidavit, prior to filing any further Motions regarding the children, Father shall demonstrate that he has paid no less than $10,000 of the attorney's fees awarded to Motion . . . ." Patrick maintains this is a denial of his constitutional right to access courts.
Denying a party access to courts absent payment of money has been found to be a denial of access to the courts under due course of law. In In re Flores, 135 S.W.3d 863, 865 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding), the court granted a writ of mandamus to compel a trial judge who was refusing to proceed to trial absent payment of interim attorney's fees in a modification proceeding. Similar to the circumstances before us, the parties in Flores were involved in acrimonious and constant litigation involving their minor children. The father had been ordered to pay a deposit of $4,000 as interim attorney's fees, which when unpaid, resulted in the trial court refusing to proceed to trial.
Melanie suggests that in a family law matter where there is a strong level of animosity between the parties, there must be discretion for a court to contend with the continued harassment by the offending party. Melanie correctly points out that Patrick's access to courts has not been denied. Rather, his access to courts has been conditioned "upon good cause shown by sworn affidavit" before filing a motion regarding his children. We find the holding in In re Flores to be distinguishable because the father there was not permitted to proceed to trial under any circumstances, resulting in a complete denial of his access to courts. Here, we find the trial court's order conditioning the filing of further motions upon compliance with a reasonable condition to be akin to the denial of access to the courts imposed upon a vexatious litigant through the use of a prefiling order. See TEX. CIV. PRAC. & REM. CODE ANN. § 11.101 (West Supp. 2015). Because the denial is not absolute, we decline to find that it contravenes constitutional considerations of due process. We overrule issue four.
ISSUE FIVE
Patrick asserts the trial court erred by issuing a permanent injunction, prohibiting him from "making racist or homophobic remarks" in the children's presence or hearing. Specifically, he challenges the prohibition as infringing on his religious freedom to read specific verses from the Bible to his children as well as unconstitutionally restricting his freedom of speech.
As a prerequisite for appellate review, a party is required to timely present his complaint to the trial court by request, objection, or motion stating specific grounds for the ruling sought. TEX. R. APP. P. 33.1(a)(1)(A). The appellate record does not reflect that Patrick presented his specific complaint to the trial court either in his motion for new trial or at the hearing on Melanie's Motion to Modify, Correct, or Reform Judgment. Patrick raised numerous complaints in his motion for new trial but did not complain or argue that his constitutional rights of freedom of speech and religion had been restricted by the trial court's prohibition against making certain remarks in his children's presence. See Wallace v. McFarlane, No. 01-10-00368-CV, 2013 Tex. App. LEXIS 10587, at *13-14 (Tex. App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op.) (trial court's injunction prohibiting party from making disparaging remarks in children's presence not preserved for review). While Patrick may have other avenues to address his complaint, he has not preserved that complaint sufficiently for this court to review. Issue five is overruled.
ISSUE SIX
Patrick asserts the trial court erred by awarding attorney's fees be withheld by an income withholding order. We agree.
In Texas, recovery of attorney's fees by an opposing party must be authorized by statute or contract. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013). Title V of the Texas Family Code provides a detailed scheme authorizing a trial court to award attorney's fees under general and specific statutes. Id. Section 106.002 of the Code, which applies to all suits affecting the parent-child relationship, invests a trial court with discretion to award reasonable attorney's fees. TEX. FAM. CODE ANN. § 106.002 (West 2014). There are also specific statutes for awarding attorney's fees in suits affecting the parent-child relationship. The Code authorizes attorney's fees in suits for enforcement of child support which may be enforced by contempt. § 157.167(a). The Code also authorizes attorney's fees in an enforcement suit for failure to comply with the terms of possession of or access to a child which may be enforced by contempt but not by an income withholding order. § 157.167(b). In addition, section 154.012 requires a trial court to order a child support obligee to pay the obligor's attorney's fees if the court finds that the obligee failed to return a child support payment in excess of the support ordered. Section 156.005 of the Code also authorizes attorney's fees against an offending party who files a modification suit if the trial court finds that suit was filed frivolously or designed to harass a party. § 156.005.
Other than section 156.005, there is no provision for awarding attorney's fees in modification suits. Trial courts must derive authority to award attorney's fees in non-enforcement modification suits from the general attorney's fees provision—section 106.002. Tucker v. Thomas, 419 S.W.3d 292, 297 (Tex. 2013).
Here, the trial court found that Patrick's suit was "filed frivolously and designed to harass Melanie Evans" and pursuant to section 156.005, ordered that she recover $20,000 in attorney's fees. The court further ordered that the attorney's fees be satisfied by an income withholding order.
The characterization of attorney's fees in suits affecting the parent-child relationship has potentially serious consequences. In the Interest of K.J.D., 299 S.W.3d 517, 518 (Tex. App.—Dallas 2009, no pet.). Attorney's fees awarded in a suit to enforce a child support order are not considered a debt, are enforceable by contempt proceedings, may be awarded as additional child support, and can result in garnishment of the obligor's wages, as well as other consequences. In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In non-enforcement modification suits, however, an award of attorney's fees is characterized as a debt and, as such, it may be collected by any means available for the enforcement of a judgment for debt. Tucker, 419 S.W.3d at 297.
Patrick filed suit to modify his visitation and Melanie filed her counter-petition seeking modification for access to, or possession of, the children by Patrick. Neither party sought enforcement of any provisions of a prior order. However, the trial court's finding that Patrick filed his suit frivolously and to harass Melanie supports the award of attorney's fees to her under section 156.005. The award of attorney's fees is enforceable by any means available for the enforcement of a judgment for debt but may not be enforced by an income withholding order.
We dismiss Melanie's argument that the trial court entered conclusions of law that her attorney's fees and those of the amicus attorney were "necessaries" subject to a withholding order. Conclusions of Law 4 and 5 provide that the fees awarded were "reasonable and necessary," not "necessaries," as characterized by Melanie.
Accordingly, we conclude that an income withholding order was not the appropriate avenue for satisfying payment of attorney's fees in the underlying non-enforcement modification suit and the trial court erred in authorizing collection by means of an income withholding order. Issue six is sustained.
Patrick does not challenge the amount awarded to Melanie as attorney's fees.
ISSUE SEVEN
By his final issue, Patrick contends the trial court erred by failing to confer with his oldest son despite a properly filed motion to confer with the child. We disagree.
With only a casual reference to section 153.009 of the Family Code and no other authority, Patrick asserts the trial court erred in failing to confer with his oldest son who was thirteen at the time of the hearing. Section 153.009(a) provides that in a nonjury trial or hearing, on the application of certain interested parties, the court shall interview in chambers a child twelve years of age or older to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. TEX. FAM. CODE ANN. § 153.009(a) (West 2014). Paragraph (f) provides that on the motion of certain interested parties or on the court's own motion, the court shall cause a record of the interview to be made when the child is twelve or older and the record of the interview shall be part of the record.
The requirement becomes permissive, not mandatory, when the object is to determine the child's wishes regarding terms and conditions of possession, access, or any other issue pertaining to the suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 153.009(b) (West 2014); In the Interest of A.C., 387 S.W.3d 673, 676 (Tex. App.—Texarkana 2012, pet. denied). The underlying suit involved a determination of the person who shall have the exclusive right to determine the primary residence. --------
Two days before the post-judgment hearing on his motion for new trial, Patrick filed a Motion for Judge to Confer with Child and requested that a record of the interview be made and be included in the record. According to Melanie, the trial judge had previously interviewed the child. The appellate record does not include an interview between the oldest child and the trial judge. In Hamilton v. Hamilton, 592 S.W.2d 87, 88 (Tex. Civ. App.—Fort Worth 1979, no writ), the court held that a motion for new trial is too late to make an application for a judge to interview a child. We conclude the trial court did not err in failing to interview the oldest child when a motion to do so was not timely filed. In the Interest of N.W., No. 02-12-00057-CV, 2013 Tex. App. LEXIS 11862, at *27-28 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op) (finding denial of interview harmless when party did not make an offer of proof as to what the child would have said in the interview). Issue seven is overruled.
CONCLUSION
We modify the trial court's Order in Suit to Modify Parent-Child Relationship dated December 19, 2013, to delete the following sentence from that portion of the order entitled "Attorney's Fees: This Order authorizes the issuance of an Income Withholding Order for attorney's fees awarded on this date." As modified, the trial court's order is affirmed.
Patrick A. Pirtle
Justice