Opinion
05-20-00852-CV
08-10-2022
IN THE INTEREST OF B.M.B. AND K.A.B., CHILDREN
On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-11126
Before Justices Schenck, Osborne, and Smith Opinion by Justice Schenck
MEMORANDUM OPINION
DAVID J. SCHENCK JUSTICE
Because the majority concludes there was no requirement for written findings to support the trial court's order's deviation from the standard possession order and because the majority concludes a party requesting such findings must do so even after the factfinder has recused herself, I dissent.
As noted by the majority, the parties have been involved in continuous litigation regarding child-custody and possession issues since they divorced in 2012. The trial court conducted a trial in February 2020 regarding the parties' competing petitions to modify the decree's terms of child custody and possession. The trial court signed its amended final order on September 18, 2020, which was effective May 20, 2020, the day the court issued its memorandum ruling. The trial court's order deviated from the standard possession order in setting Father's possession schedule. After the trial, but before the trial court signed its final order, appellant moved for recusal of the trial court twice in 2020, June 2 and again on July 8; both motions were initially denied.
The docket reflects that on October 7, 2020, after the amended final order was signed, the court signed the following orders titled, respectively, "order - recusal" and "order - transfer (not change of venue) to 303rd)."
The family code mandates "[i]n all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, . . . on request by a party, the court shall state in writing the specific reasons for the variance from the standard order." See Tex. Fam. Code § 153.258(a). As noted by the majority, Father filed his request for findings on September 21, 2020, one day after the trial court entered its final order in the modification suit. Thus, I disagree with the majority's conclusion that written findings were not required by the statute.
However, as noted by the majority, subsection (b) of section 153.258 provides that a "request" under subsection (a) must conform to the rules of civil procedure.Because Father filed his request on September 21, 2020, his past-due "notice" would have been due under the rules on October 21, 2020. See Tex. R. Civ. P. 297 (past- due notice due "within thirty days after filing the original request"). According to the record-including Mother's response to Father's motion for new trial-the trial judge had recused herself two weeks earlier on October 6, 2020. See In re Amos, 397 S.W.3d 309, 314 (Tex. App.-Dallas 2013, orig. proceeding). Accordingly, that judge could not receive any "notice," much less act on or, more to the point, make any of the findings of fact requested on September 21 and required by the statute. Id.; Mann v. Denton Cty., No. 02-13-00217-CV, 2014 WL 5089189, at *2 (Tex. App.-Fort Worth Oct. 9, 2014, pet. denied) (mem. op.) ("Typically, any order signed by a recused judge . . . is wholly void and must be set aside.").
While the statute is mandatory and plain in requiring that "request for findings under this section must conform to the Texas Rules of Civil Procedure," it makes no reference to "notices" relative to the request, such as a notice of past due findings. Given our record, I do not believe this case would require us to parse that possible distinction as there was never any opportunity to serve the notice, even assuming it would be incorporated into the statutory requirement for making the request in the first instance.
Although, as noted by the majority, the order of recusal is not included in the clerk's record, the docket is, and the docket indicates that on October 7, 2020, there is an "order - recusal" and an "order - transfer (not change of venue) to 303rd)."
Assuming for the sake of argument that the statute requires "notice" of past due findings as well as the "request" leads to the next, controlling question here: must such a notice must be made, after recusal, to the clerk or tacked to the courthouse door in Martin Luther-like fashion as a condition of preserving the right to review free from waiver or presumed adverse findings? Given that we are dealing here with a right that is sufficiently basic and fundamental as to statutorily require findings in the first place and as that the entire purpose of requiring those findings is to facilitate meaningful appellate review, I think not.
"The United States Supreme Court has long held that the Constitution 'protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.'" In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.)).
See In re J.W., 645 S.W.3d 726, 741 (Tex. 2022) (noting heightened burden of proof affects standard of review in evidentiary challenge to termination of parental rights).
First, I do not believe that we can acquit ourselves of our review obligation without some articulated statement of why the trial court made the decision it did. That requires that someone be able to make findings before we could defer to them or engage them on the presumed basis that they were in fact found.
Second, who could make such a finding as to which we could properly defer or apply any presumptions of regularity or consistency with the result? I concede, of course, that carrying forward the past-due notice to the initial request might well make sense if there were some potential that the record could be amplified to allow the appeal to proceed. But, does it make sense here? What of the trial judge's successor? Could that judge read the transcript, accept the notice, and make the requested findings that would allow us to process this appeal and that the statute contemplate?
I think the answer to that question is obvious, and any contrary one would raise due process problems in addition to the existing constitutional concerns of disrupting presumptive parental rights without an articulated rationale. In addressing a similar question of whether a judge who did not hear the evidence may render judgment after the judge who heard the evidence dies before ruling, this Court has concluded, "[a]ll courts that have addressed the issue directly have held the rules of civil procedure do not authorize a judge to render judgment following a bench trial unless he personally heard the evidence on which the judgment is based." See Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332, 334-36 (Tex. App.-Dallas 2018, no pet.). We reached this holding, noting nothing in our rules or in previous decisions permit a judge "to find facts based on evidence he has not heard." See id.; see also United States v. Raddatz, 447 U.S. 667, 681 n.7 (1980) (distinguishing district judge's acceptance of magistrate's findings on credibility as comporting with due process rights from "serious questions" raised in event district judge rejected same findings without "seeing and hearing the witness or witness whose credibility is in question").
Thus, the question raised by Father and this record is whether, assuming a timely past-due notice is required, does the appealing party waive error in a subsequent challenge by failing to give notice of past-due findings to a recused judge where the statute affirmatively requires those findings to be made and the party has already affirmatively requested those findings? This question appears to be one that answers itself in the negative. Because the majority concludes otherwise, I dissent.
Finally, the majority opinion correctly notes that while Father directly challenges the lack of findings and the trial court's failure to respond to his request, he did not argue in his opening or reply brief the futility of any attempt to file a past-due notice and he raised it explicitly only in oral argument. Father's first "issue" is whether the trial court erred by awarding him below minimum standard possession without an express finding that the deviation was in the best interest of the children. His futility argument is just that, an "argument." See Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 704 (Tex. 2021) ("And while appellate courts 'do not consider issues that were not raised . . . below,' parties may 'construct new arguments in support of issues' that were raised."). More particularly, waiver of "an issue" is an argument belonging to an Appellee and, as here, is most often made in the Appellee's response brief, though it is often addressed by the court (precisely because it is an inherent and integral part of the issue before us) without even being raised by the Appellee. As the Appellee is not required under the rules even to file a reply brief, I see no basis in our rules or caselaw for finding of a "waiver of the response to waiver argument" when the issue is squarely before us and controlled by the record and governing law. See Tex. R. App. P. 38.3.
E.g., Pante Tech. Corp. v. Austin Concrete Sols., Inc., No. 03-10-00059-CV, 2010 WL 3927598, at *8 (Tex. App.-Austin Oct. 7, 2010, no pet.)
Accordingly, because I would conclude there was a requirement for written findings to support the trial court's order's deviation from the standard possession order and because I would conclude Father was not required to timely file a notice of past-due findings where the trial judge recused herself,
I dissent from the majority's conclusions otherwise.