Agapito Panalez, Jr. v. Amy Telano ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00675-CV
Agapito Panalez, Jr., Appellant
v.
Amy Telano, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-FM-08-000824, HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
Pro se appellant Agapito Panalez, Jr. appeals from the trial court’s modification
order that named Panalez possessory conservator, expanded the geographical area in which the child
may live, removed an injunction, and assessed attorney’s fees against Panalez. We affirm the order.
Factual and Procedural Background
Panalez and appellee Amy Telano divorced in 2008, and the trial court signed a
divorce decree in accordance with the parties’ settlement agreement, naming Panalez and Telano
joint managing conservators of their daughter H.T., who was born in August 2006. Telano was given
the right to determine H.T.’s primary residence within Travis County and counties contiguous to
Travis County.
Since that time, the parties have had numerous disputes related to H.T.’s care and
custody, and in 2009, Panalez accused Telano’s father and brother of sexually abusing H.T.1 In early
2010, Panalez again raised allegations of sexual abuse, this time against Christian Sykes, Telano’s
then-boyfriend.2 In December 2010, Telano filed a motion to modify, asking that Panalez be
required to undergo a psychological evaluation and that his visitations be suspended until that
evaluation was complete. Telano asserted that Panalez “forces [H.T.] to make false allegations of
sexual abuse and videotapes [H.T.]” making the allegations. Panalez filed a counter-petition asking
to have H.T. evaluated by a psychologist and for a temporary restraining order against Sykes. In
March 2011, the court signed a modification order requiring that H.T. be seen by a psychologist and
expanding the geographical area in which H.T. could live to include Comal County. The order also
provided that “if an investigation involving Christian Sykes is open and not dismissed,” Telano was
enjoined from allowing Sykes to have unsupervised contact with H.T.
Telano and Sykes were married in June 2012, and in mid-2013, Telano filed another
motion to modify, seeking to have the injunction against Sykes removed. Panalez demanded a jury3
and filed a counter-petition, seeking the right to determine H.T.’s primary residence, asking that
1
The allegations against Telano’s father and brother were investigated by Child Protective
Services, which ruled them out and closed the case.
2
CPS investigated and ruled out the allegations against Sykes. The police also investigated
and found no reason to pursue the case, resulting in the case being “suspended” in 2012.
3
See Tex. Fam. Code § 105.002 (party may demand jury in suit affecting parent-child
relationship, and trial court “may not contravene” jury’s verdict on issues of conservatorship,
whether to impose geographical restriction, and what such restriction should be); Lenz v. Lenz,
79 S.W.3d 10, 16-17 (Tex. 2002) (discussing application of section 105.002 following jury trial on
modification and geographical restriction).
2
H.T.’s residence be restricted to Travis County and contiguous counties, and asking that Sykes be
barred from having unsupervised access to H.T. In June 2014, the case was heard by a jury, which
determined that Telano should be named sole managing conservator and that the geographical
restriction should be expanded to allow Telano to establish H.T.’s residence in Jefferson County,
Comal County, Travis County, or a county contiguous to Travis County. The trial court signed an
order naming Panalez possessory conservator, naming Telano sole managing conservator, expanding
the area in which H.T. may live to include Jefferson County, removing the injunction against Sykes,
and awarding to Telano $43,951 in attorney’s fees to be paid as “additional child support” at a rate
of $200 a month. Panalez filed a motion for new trial, arguing that the evidence was insufficient to
support Telano being appointed sole managing conservator and the geographical restriction being
expanded, and a motion to modify, asserting discrepancies between the signed order and the trial
court’s statements in open court.
Panalez raises four issues on appeal, asserting that the trial court erred in (1)
dissolving the injunction against Sykes; (2) entering a judgment conforming with the jury’s decision
and expanding the geographical restrictions on H.T.’s residence; (3) awarding attorney’s fees; and
(4) entering an order that was inconsistent with its statements made immediately following the
jury’s verdict.4
4
Panalez’s arguments are very short and contain few, if any, citations to authority. He
generally simply asserts that the trial court or jury ignored certain evidence without providing further
explanation or discussion. Although we will read Panalez’s pro se briefing liberally, we may not
give him any procedural advantage over a party represented by counsel. See Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex.
App.—Dallas 2008, no pet.).
3
Standard of Review
A trial court may modify conservatorship and possession if the petitioning parent
shows that the circumstances of the child, a conservator, or some other affected party have materially
and substantially changed and that modification would be in the child’s best interest.5 Tex. Fam.
Code § 156.101. In the case at hand, the jury determined that Telano should be named sole managing
conservator and that she should be allowed to move to Jefferson County, while the trial court
determined that the injunction related to Sykes should be dissolved.
When issues of conservatorship and geographical restrictions are submitted to a jury,
we conduct an ordinary sufficiency review to determine whether the verdict is supported by legally
and factually sufficient evidence. See Lenz v. Lenz, 79 S.W.3d 10, 16-17 (Tex. 2002). We consider
reasons for and against allowing a custodial parent to move, such as effects on the child’s extended
family relationships and on visitation and communication with the non-custodial parent; the
possibility of a visitation schedule to allow the non-custodial parent to continue to have a meaningful
relationship with his child; the nature of the child’s existing contact with her parents; and the child’s
age, community ties, and health and educational needs. See Fox v. Fox, No. 03-04-00749-CV,
2006 WL 66473, at *4 (Tex. App.—Austin Jan. 13, 2006, no pet.) (mem. op.) (citing Lenz, 79 S.W.3d
at 15-17).
In reviewing legal sufficiency, we consider all of the evidence in the light most
favorable to the verdict, crediting favorable evidence if a reasonable juror could do so and
5
Nowhere in his briefing does Panalez argue that the parties’ and H.T.’s circumstances have
not materially and substantially changed. He seems to argue only that the modifications made were
not in H.T.’s best interest.
4
disregarding contrary evidence unless a reasonable juror could not. In re D.A., 307 S.W.3d 556, 561
(Tex. App.—Dallas 2010, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
Evidence is legally insufficient only when the evidence establishing a vital fact is so weak that it
does no more than create a mere surmise or suspicion. Id. (quoting Kroger Tex. Ltd. P’ship v.
Suberu, 216 S.W.3d 788, 793 (Tex. 2006)). When reviewing factual sufficiency, we examine all of
the evidence and set aside a determination only if it is so contrary to the evidence as to be clearly
wrong and unjust. Id. The jury, as fact-finder, is the sole judge of witness credibility and the weight
to be given to the testimony, and we may not substitute our judgment on such issues for that of
the jury. Id.; see Coburn v. Moreland, 433 S.W.3d 809, 823-24 (Tex. App.—Austin 2014, no pet.)
(fact-finder observes and assesses witness demeanor and may sense influences “‘that may not be
apparent from merely reading the record on appeal’” (quoting In re A.L.E., 279 S.W.3d 424, 427
(Tex. App.—Houston [14th Dist.] 2009, no pet.))).
When a trial court makes a decision modifying a conservatorship order, we review
that decision under an abuse-of-discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). The
trial court observes the witnesses’ demeanor and personalities and does not abuse its discretion if
some substantive and probative evidence supports the decision. Zeifman, 212 S.W.3d at 587. In
such cases, challenges to the sufficiency of the evidence are not independent grounds of error, but
instead are relevant when assessing whether the trial court abused its discretion. Id. We ask first
whether the court had sufficient information on which to exercise its discretion and second whether
it erred in applying its discretion. Id. at 588.
5
Discussion
In his first issue, Panalez argues that the trial court erred in removing the injunction
barring Sykes from having unsupervised contact with H.T., pointing to Detective Lopez’s testimony
that, because of H.T.’s age at the time of the allegations, she was placed in play therapy, and H.T.’s
therapist’s testimony that not every child who is sexually abused shows symptoms of the abuse. He
asserts that the trial court “ignored this evidence” and placed H.T. at risk by removing the injunction.
We disagree.6
Panalez testified that H.T. told him that Sykes had “poked [her] in the vagina.” Sykes
denied the accusation, as did Telano, who testified that because of Panalez’s earlier allegations
against her father and brother, she “made a point of not ever . . . leaving [H.T. and Sykes] alone
together in any way.” CPS caseworker Shunta Robinson-Tennon testified that she investigated the
allegations against Sykes and ruled them out. She said, “I interviewed the mother and I interviewed
the child. And the child didn’t make any outcry of sexual abuse, and she stated that her dad told her
to say that [Sykes]—at the time, [Sykes] touched her there.”7
6
Telano argues that Panalez waived this issue by not raising it before the trial court. See
Tex. R. App. P. 33.1(a) (generally, complaining party must show that complaint was timely and
sufficiently raised before trial court and that court ruled on complaint or refused to rule and that
complaining party objected to refusal to rule). Nowhere in Panalez’s motion for new trial or motion
to modify the judgment did he argue that the lifting of the injunction was an abuse of discretion.
However, a complaint about the sufficiency of the evidence in a nonjury case may be raised for the
first time on appeal, id. R. 33.1(d), and the issue in question was decided by the trial court and not
the jury. Liberally construing Panalez’s brief, we will address the issue as challenging the sufficiency
of the evidence underlying the trial court’s decision.
7
At the time Panalez told CPS that Sykes had abused H.T., he also apparently alleged that
Sykes had sexually abused Sykes’s niece, G., who was almost five at the time. Robinson-Tennon
testified that another CPS caseworker investigated the allegations related to G. and interviewed
Sykes as part of that investigation. The allegations related to G. were also ruled out.
6
Detective Ramon Lopez of the Travis County Sheriff’s Office also investigated
Panalez’s allegations against Sykes and said that Panalez provided an audio-recording of him and
his mother talking to H.T. Lopez testified that he listened to the tape and concluded that Panalez had
asked H.T. leading questions. Lopez discussed the case with the district attorney’s office, which
decided in 2012 to suspend the case. Lopez explained:
We have allegations by a child that was on a recording, that a certain individual may
have touched her. With that said, after listening to it, the child was preverbal, and by
that I mean the child wouldn’t have been able to participate in a full forensic
interview. So—which is why she was put in—the case was suspended. Once a case
is suspended, in this particular case, it was noted that she—the child would—the case
would be suspended pending any further leads or outcries from the child. And
to—and had that happened—the child is with the therapist. The therapist is bound
by law to make law enforcement aware of this particular outcry. And at that point,
the case would—we would open this case up again and go forward with it.
H.T.’s therapist, who has been seeing her since October 2011, testified that H.T. is
a happy child who has not made an outcry to him. He said H.T. did not show “signs of anxiety,
some trauma—signs of trauma, some nightmares, some hesitancy to engage with others,” but
acknowledged that not every victim of sexual abuse shows symptoms.
The evidence shows that H.T. exhibits no signs of having been abused, is happy and
well-adjusted, and has made no outcries of abuse other than the alleged outcry to Panalez. There is
no evidence that H.T. behaves as if she fears Sykes, who is now her stepfather. Further, H.T. told
a CPS investigator that Panalez had told her to say that Sykes had touched her inappropriately; a
CPS investigator ruled out the allegations against Sykes; Panalez made similar allegations against
7
Telano’s father and brother, which were also investigated and ruled out by CPS; and the police
investigation was suspended because there was insufficient evidence to continue investigating Sykes.
It was for the trial court to consider the credibility of the witnesses and the weight
to be given their testimony on the issue of the injunction against Sykes. See Coburn, 433 S.W.3d
at 823-24; Schneider v. Schneider, 5 S.W.3d 925, 931 (Tex. App.—Austin 1999, no pet.) (even if
there is conflicting evidence, fact-finder’s resolution of evidentiary conflicts and determination
of credibility and weight to be given testimony “is generally regarded as conclusive”). Sufficient
probative and substantial evidence supports the trial court’s decision, and Panalez has not shown that
the court erred in the application of its discretion. See Zeifman, 212 S.W.3d at 588. We overrule
Panalez’s first issue.
In his second issue, Panalez asserts that the jury erred in expanding the area in which
Telano is allowed to live to include Jefferson County and argues that the trial court improperly
“ignored” the fact that it earlier denied a request to expand the geographical restriction (at the time
it enjoined Sykes from having unsupervised contact with H.T.). He asserts that the expansion of
the geographical restriction adversely affected H.T.’s best interest.
Telano, Sykes, and several other witnesses testified about Telano’s and Sykes’s
friends and family in Jefferson County. Telano and Sykes grew up in Beaumont, and Sykes’s sister
is Telano’s best friend from childhood. Sykes’s house is near Beaumont and 230 miles from Panalez’s
residence. The house, which Sykes owns outright, is on a fifteen-acre farm and has been in Sykes’s
family for three generations. There was testimony that having a greater distance between Telano and
Panalez could ease some of the tension between them, thus decreasing stress on H.T., and her
8
therapist believed H.T. would adapt to the long-distance visitation schedule. Sykes testified that
he has an easier time finding work in the Houston area than in Austin or San Antonio, and Telano
said she has several employment options in the Beaumont area. Telano also explained that living
in Jefferson County would allow her and Sykes to consolidate households into a house that is paid
off. Telano and others testified that she has friends and family in the area who would be a support
system for her and H.T., and she testified that H.T. would be attending good schools in the Beaumont
area. There was discussion of how a visitation schedule could be tailored to give H.T. extended
time with Panalez in the summers and on many long school breaks and to allow H.T. to attend family
reunions on both sides of her family. Further, Telano said that she and her parents were willing
to drive H.T. more than half-way to Panalez’s residence and that H.T. is already accustomed to
reasonably long drives. Panalez has not shown that the jury’s decision to expand the geographical
restriction to include Jefferson County was supported by insufficient evidence or would not be in
H.T.’s best interest. See In re D.A., 307 S.W.3d at 561. We overrule Panalez’s second issue on appeal.
In his third issue, Panalez argues that the trial court abused its discretion in
awarding attorney’s fees to Telano because Telano’s petition sought a modification of the custody
arrangements and was not brought for purposes of enforcing child support.8 Telano argues that
8
Panalez does not attack the evidence proving the amount of attorney’s fees but rather its
inclusion as additional child support. His argument on this issue, in its entirety, is as follows:
The evidence presented at trial showed that Appellee’s petition was not for the
enforcement of child support. Because Tex. Fam. Code 106.001 and 106.002 clearly
state that attorney fees are expenses that may be enforced in the attorney’s name by
any means available for the enforcement of a judgment for debt, an order for
garnishment should not have been entered. Because the trial court ignored this
statute, it abused its discretion and adversely affected the Appellant.
9
Panalez has waived this issue by his failure to raise it before the trial court in his motions to modify
and for new trial. We agree. Nowhere before the trial court did Panalez raise the issue of attorney’s
fees in any respect other than when his attorney asked that he be allowed to pay them off at a rate
of $150 a month instead of $200 a month. We overrule Panalez’s third issue on appeal.9
Finally, in his fourth issue, Panalez argues that the trial court’s signed order is
inconsistent with rulings it made in open court. Panalez complains about the provision giving him
possession “on the first Monday following the end of the school year until June 16th,” which he
asserts will result in his never having two full weeks because the school year ends the first week of
June. He also points to the trial court’s statement that Panalez would have “first, third, and fifth
weekends, and then two weeks per month during the summer breaks between school, as well as the
usual and customary arrangements for parties living more than a hundred miles apart with regard to
9
Further, although the supreme court has held that in a pure modification proceeding,
attorney’s fees may not be characterized as additional child support, see Tucker v. Thomas, 419 S.W.3d
292, 300 (Tex. 2013), whether they can be so characterized in a “blended” proceeding involving
both modification and enforcement was not decided, see id. at 305 (Guzman, J., concurring)
(“Considering the inextricability of modification and enforcement issues in many SAPCR
proceedings, it follows that trial courts placed in such circumstances would maintain similar
discretion to award attorney’s fees as child support. On the facts of this case the Court need not
decide whether attorney’s fees can be taxed as child support in these blended proceedings. But such
proceedings are likely the source of conflicting case law among the courts of appeals.”). Telano
argues that this proceeding can be viewed as a “blended” modification and enforcement proceeding,
and the record supports that assertion. In Telano’s proposed disposition of other issues, she asked
that Panalez be held in contempt for violating prior trial court orders “as indicated in the Motion for
Enforcement”; the parties provided testimony about Panalez’s alleged violations of the trial court’s
custody orders; and on the same day the court signed the modification order, it also signed an order
of enforcement by contempt finding that Panalez had failed to return H.T. on time after a weekend
visit. We need not decide this issue, however, because Panalez never raised it before the trial court.
10
recognized holidays, birthdays, Father’s Day, Mother’s Day, etcetera,”10 and asserts that the signed
order is inconsistent with that statement. He neglects to note that Telano then requested alternating
spring breaks, and the court responded, “I am going to allow Mr. Panalez spring vacation in even-
numbered years.”
Thus, the order signed by the trial court is not inconsistent with its statements in open
court. We will instead consider whether the order’s provisions related to spring break and June
visitations were an abuse of discretion. In re A.D., No. 14-12-00914-CV, 2014 WL 1800082, at *13
(Tex. App.—Houston [14th Dist.] May 6, 2014, no pet.) (departure from standard visitation order
is reviewed for abuse of discretion). Although there is a presumption in favor of the standard
possession order, Tex. Fam. Code § 153.252 (rebuttable presumptions that standard order is in
child’s best interest and provides “reasonable minimum possession”), the trial court may depart
from the standard order based on the child’s age, development, circumstances, needs, and best
interest; the parents’ circumstances; and any other relevant factor, id. § 153.256.
The parties agreed to depart from the standard order by breaking Panalez’s summer
visitation into three periods of approximately two weeks each in order to allow H.T. to attend both
family reunions,11 and the trial court could have determined that arranging Panalez’s June visitation
as it did was the best way to accommodate all of the competing interests and was in H.T.’s best
10
The standard possession order for parents living more than 100 miles apart provides that
the non-custodial parent has visitation every spring break. See Tex. Fam. Code § 153.313(2).
11
The parties discussed how to arrange visitation so that H.T. could attend both Panalez’s
family reunion, which always occurs on Memorial Day weekend, and Telano’s family reunion, which
always occurs the first weekend in July. Telano noted that Memorial Day weekend was her
weekend, and the parties agreed when the trial court proposed giving Panalez every Memorial Day
weekend and Telano every first weekend in July.
11
interest. Similarly, having heard all of the evidence provided at trial, the court could have concluded
that it was in H.T.’s best interest and would best accommodate the parties’ competing wishes and
needs for Telano and Panalez to alternate spring break possession. Assuming that the issue was
preserved for our review, Panalez has not shown that the trial court abused its discretion in deviating
from the standard possession order. See Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas
2011, pet. denied) (when trial court does not enter findings of fact, it is implied that court made all
necessary findings to support order, and order will be upheld on any legal theory supported by
evidence); In re T.J.S., 71 S.W.3d 452, 458-59 (Tex. App.—Waco 2002, pet. denied) (if parties do
not request trial court’s specific reasons for departing from standard possession order, appellate
court infers that trial court made all necessary findings to support judgment, reviews record to ensure
some evidence supports judgment, considers evidence in light favorable to judgment, and upholds
judgment on any legal theory supported by evidence). We overrule Panalez’s fourth issue.
Conclusion
Having overruled Panalez’s issues, we affirm the trial court’s modification order.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Goodwin, and Bourland
Affirmed
Filed: November 19, 2015
12