in the Interest of D.B. and D.B., Children ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00124-CV
___________________________
IN THE INTEREST OF D.B. AND D.B., CHILDREN
On Appeal from the 325th District Court
Tarrant County, Texas
Trial Court No. 325-466195-09
Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant D.B. (Father) and Appellee R.P. (Mother) divorced in December
2009. At the time of their divorce, Mother and Father had two children: then-seven-
year-old D.B. (Dana) and then-six-year-old D.B. (Debra). Nearly ten years later,
Father sued Mother, along with Appellees F.P. (Maternal Grandmother), C.H.
(Paternal Grandmother), and E.B. (Aunt), under Chapter 42 of the Texas Family
Code for interference with his possessory rights to his daughters. See Tex. Fam. Code
Ann. §§ 42.001–.009.
After Father rested at trial, Mother moved for a directed verdict, which the trial
court granted. Father has appealed and raises three issues: (1) the trial court erred by
directing a verdict against him; (2) the trial court abused its discretion by not allowing
Father to present evidence of all the instances in which he was denied access to the
children; and (3) the trial court’s evidentiary rulings “were so erroneous that they
denied [him] of his right to trial by jury.” We will affirm.
I. Background
On October 17, 2019, Father—then proceeding pro se—sued Mother,
Maternal Grandmother, Paternal Grandmother, and Aunt for interference with his
possessory rights to Dana and Debra under the trial court’s January 3, 2018 “Order in
Suit for Modification of Support Order and to Confirm Support Arrearage and Order
to Modify Access” and “Father’s Visitation Schedule,” which was attached to the
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modification order and incorporated by reference.1 Father pleaded four specific
instances of interference with his possessory rights under the modification order and
visitation schedule:
• On Friday, March 29, 2019, Mother failed to surrender the children to
Father at her residence at 8:00 p.m., and Mother and Maternal
Grandmother took or retained possession of the children or concealed the
children’s whereabouts in violation of Father’s court-ordered possessory
rights;
• On Friday, August 16, 2019, Mother and Maternal Grandmother failed to
surrender the children to Father at Mother’s residence at 8:00 p.m., and
Maternal Grandmother retained possession of the children or concealed the
children’s whereabouts in violation of Father’s court-ordered possessory
rights;
• On Friday August 2, 2019, Paternal Grandmother and Aunt aided or
assisted Mother in taking or retaining possession of the children or aided
and assisted Mother (1) in taking the children out of the county with the
intent to deprive Father and the trial court of authority over the children
and (2) in concealing the children’s whereabouts in violation of Father’s
court-ordered possession rights; and
1
Father attached the modification order and the visitation schedule to his
petition. The visitation schedule provided, among other things, that unless the parties
mutually agreed in advance, Father would have possession “[o]n weekends
throughout the year from 4 p.m. on the first, third, and fifth Friday of each month
until 6 p.m. on the following Sunday.” In his petition, however, Father claimed that
the possession-and-access schedule provided, “It is Ordered each First, Third, and
Fifth Friday of each month, that the Parent in Possession of the Children shall have
the Children available at the parent’s residence between the hours of 8:00 p.m. and
8:30 p.m. Central Standard Time.” This appears to be a combination of the weekend-
possession provision in the visitation schedule and the telephone-contact provision in
the modification order.
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• On Friday, September 6, 2019, Paternal Grandmother and Aunt aided or
assisted Mother in taking or retaining possession of the children from
Father.
Father further pleaded that Maternal Grandmother, Paternal Grandmother, and
Aunt were jointly and severally liable for their conduct in aiding or assisting Mother’s
wrongful conduct. See id. § 42.003. He generally pleaded that “[o]n two or more
occasions,” Mother, Maternal Grandmother, Paternal Grandmother, and Aunt failed
to comply with a court order by failing to surrender the children to Father as ordered.
Mother, Maternal Grandmother, Paternal Grandmother, and Aunt each
answered with a general denial.
The case was tried to a jury in March 2022. Father, Mother, and Maternal
Grandmother appeared. Paternal Grandmother and Aunt did not appear.
Before Father called his first witness, the trial court ruled that he could not
offer evidence of instances of alleged interference other than the four specific
instances that he had pleaded. 2 When Father tried to offer or elicit testimony
regarding other instances, Mother variously objected on outside-the-pleadings and
relevancy grounds, and the trial court sustained those objections.
Father offered—and the trial court admitted—the modification order into
evidence, but the visitation schedule was not attached. Father testified that he was
denied possession of the children on the four specific dates alleged in his petition.
2
At trial, Father identified his live pleading as his October 17, 2019 pleading,
the relevant parts of which are set out above.
4
Father further testified that according to the modification order, his pick-up time for
his daughters was between 8:00 and 8:30 p.m.
Father also testified that he had called the police to report the interference with
his possession. When Father offered into evidence a police report related to the
alleged violation on March 29, 2019, Mother objected to the report as hearsay. After
the trial court sustained Mother’s hearsay objection, Father argued that the police
report was admissible under the business-records exception to the hearsay rule. 3 See
Tex. R. Evid. 803(6). The trial court again sustained the objection. The trial court also
sustained Mother’s hearsay objection to Father’s testimony regarding Debra’s
demeanor during a telephone conversation that he had with her on August 2, 2019,
the date of the third alleged violation of Father’s visitation rights.
Mother’s and Maternal Grandmother’s testimonies generally confirmed that
Father did not have possession of Dana and Debra on the days that Father had
alleged that he was denied possession. During Mother’s testimony, Father again
offered into evidence the police report related to the March 29 alleged violation, along
with three other police reports. Mother objected to the reports as hearsay, and the
trial court sustained that objection.
Contrary to Father’s assertions at trial and on appeal, there was no business-
3
records affidavit authenticating the report presented at trial. See Tex. R. Evid.
803(6)(D), 902(10). Father did not argue that the report was admissible under the
public-records exception to the hearsay rule. See Tex. R. Evid. 803(8).
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After Father rested, Mother moved for a directed verdict, pointing out that
according to Father’s pleadings and testimony, Father’s pick-up time was 8:00 p.m.,
but the visitation schedule stated that Father would have visitation starting at
4:00 p.m. on the first, third, and fifth Fridays of the month. Mother argued that she
could not deny Father access if he did not know what time he was supposed to pick
up the children. Father countered that his pleadings and evidence did not have to be
exact and that Father’s evidence showed that Mother “did not release the girls,
period.” The trial court stated that Father was bound to his pleadings, which “stat[ed]
one thing and the order says another thing and the proof is all together a third thing.”
The trial court granted Mother’s motion and dismissed Father’s petition.4 Father
timely appealed.
II. Father’s Issues
Father raises three issues: (1) the trial court erred by granting a directed verdict;
(2) the trial court abused its discretion by limiting Father to presenting evidence of the
four specific instances that he had pleaded he was denied possession of or access to
his daughters and by not allowing Father to present evidence of other instances he
was denied possession or access; and (3) the trial court’s sustaining Mother’s hearsay
and relevancy objections, as well as her objections to evidence as outside the scope of
4
After the trial court directed a verdict against Father, Father’s attorney made
an offer of proof, stating that “had the Court allowed me to present evidence of all
the violations,” she would have presented evidence of violations occurring on about
20 specific dates, which she listed. Tex. R. Evid. 103(a)(2), (c).
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the pleadings, effectively denied Father his right to a jury trial.5 We address each of
these issues in turn.
III. The Trial Court’s Directed Verdict
Father complains in his first issue that the trial court erred by granting a
directed verdict against him because Father’s testimony, coupled with Mother’s and
Maternal Grandmother’s testimonies confirming that they had denied Father access to
the children on the dates alleged, would have enabled a reasonable juror to find that
Mother and Maternal Grandmother had interfered with his possession rights.
A. Standard of review
A directed verdict in the defendant’s favor is proper “when a plaintiff fails to
present evidence raising a fact issue essential to the plaintiff’s right of recovery.”
Prudential Ins. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). “Stated
differently, a directed verdict is warranted when the evidence is such that no other
verdict can be rendered and the moving party is entitled, as a matter of law, to
judgment.” Knife River Corp.-S. v. Hinojosa, 438 S.W.3d 625, 631 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied).
In reviewing a directed verdict, we follow the standards for assessing legal
sufficiency of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
That is, we review the evidence in the light most favorable to the person suffering the
None of the appellees—Mother,
5
Maternal Grandmother, Paternal
Grandmother, and Aunt—filed briefs.
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adverse judgment, and we must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not. Bos v.
Smith, 556 S.W.3d 293, 300 (Tex. 2018); City of Keller, 168 S.W.3d at 822, 827. We must
decide whether there is any evidence of probative value to raise an issue of material
fact on the question presented. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,
220 (Tex. 2011) (op. on reh’g).
A directed-verdict motion must specifically state what grounds merit the
directed verdict. Tex. R. Civ. P. 268. But the motion’s failure to specify a ground is
not fatal if the evidence raised no fact issues and the prevailing party is entitled to
judgment as a matter of law. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179,
195 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing Tex. Emps. Ins. Ass’n v.
Page, 553 S.W.2d 98, 102 (Tex. 1977)). We must affirm a directed verdict even though
the trial court’s rationale was erroneous if the directed verdict can be supported on
another basis. Cano v. N. Tex. Nephrology Assocs., P.A., 99 S.W.3d 330, 339 (Tex.
App.—Fort Worth 2003, no pet.). We therefore can consider any reason the directed
verdict should have been granted, even if not stated in the motion. Gomer v. Davis,
419 S.W.3d 470, 476 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also Westchester
Fire Ins. v. Admiral Ins., 152 S.W.3d 172, 191 (Tex. App.—Fort Worth 2004, pet.
denied) (en banc) (op. on reh’g).
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B. Family Code Chapter 42
Chapter 42 establishes a statutory cause of action for damages against (1) “[a]
person who takes or retains possession of a child or who conceals the whereabouts of
a child in violation of a possessory right of another person” and (2) a person who aids
or assists the person in such conduct. Tex. Fam. Code Ann. §§ 42.002, .003, .006. A
possessory right is “a court-ordered right of possession of or access to a child,
including conservatorship, custody, and visitation.” Id. § 42.001(2). Such a right “is
violated by the taking, retention, or concealment of a child at a time when another
person is entitled to possession of or access to the child.” Id. § 42.002(b).
C. Analysis
Here, Father specifically pleaded that (1) Mother had interfered with his
possessory rights; (2) Maternal Grandmother had interfered with his possessory rights;
(3) Maternal Grandmother had aided or assisted Mother; (4) Paternal Grandmother
had aided or assisted Mother; and (5) Aunt had aided or assisted Mother. As noted,
Chapter 42 claim can arise in two ways: (1) interfering with a possessory right or
(2) aiding or assisting the one who interferes with a possessory right. Id. §§ 42.002–
.003. “Liability for the latter is necessarily derivative of the former.” Bos, 556 S.W.3d at
300. To prevail under any of his liability theories, Father was thus required to prove
that either Mother or Maternal Grandmother interfered with his possessory rights. See
id.; see also Tex. Fam. Code Ann. §§ 42.002–.003.
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Father’s possessory-right-interference claim under Section 42.002 required him
to establish that he had the right to possession of or access to his daughters under a
court order. See Tex. Fam. Code Ann. §§ 42.001(2), .002; cf. In re T.M.P., 417 S.W.3d
557, 567 (Tex. App.—El Paso 2013, no pet.) (holding that order requiring
grandparents to supervise father’s visits with the children and to facilitate the
children’s transportation to and from visits did not grant grandparents the right of
access to the children); Hardy v. Mitchell, 195 S.W.3d 862, 864–65 (Tex. App.—Dallas
2006, pet. denied) (holding that because the child was not the subject of a court order,
claim could not be characterized as a possessory-right-inference claim under Chapter
42). Father was further required to prove that either Mother or Maternal
Grandmother violated his court-ordered right to possession of or access to his
daughters by taking, retaining, or concealing them at a time when he was entitled to
possession of or access to them. See Tex. Fam. Code Ann. §§ 42.001(2), .002.
The modification order offered and admitted into evidence—which was
identical to the order attached to Father’s petition—provided that Father would have
“standard visitation pursuant to the attached exhibit.” But unlike the copy of the
modification order attached to Father’s petition, the copy of the modification order
admitted into evidence did not have the exhibit attached. This exhibit, entitled
“Father’s Visitation Schedule,” provided, among other things, that unless the parties
mutually agreed in advance, Father would have possession “[o]n weekends
throughout the year from 4 p.m. on the first, third, and fifth Friday of each month
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until 6 p.m. on the following Sunday.” But without the visitation schedule, there is no
evidence of when Father had a court-ordered right of possession of or access to his
daughters, much less of his right to possession on the days that he testified he was
denied possession. Viewing all the evidence in Father’s favor, 6 the evidence was thus
insufficient to raise a material fact issue about whether Mother or Maternal
Grandmother violated Father’s court-ordered right to possession of or access to his
daughters by taking, retaining, or concealing their whereabouts at a time when Father
was entitled to possession of or access to them. See id. §§ 42.001(2), .002. The
evidence is thus necessarily insufficient to raise a fact issue on Father’s aiding and
assisting claims against Maternal Grandmother, Paternal Grandmother, and Aunt. See
Bos, 556 S.W.3d at 300; see also Tex. Fam. Code Ann. §§ 42.002–.003. We overrule
Father’s first issue.
6
In our evidentiary review, we must credit evidence favorable to Father if a
reasonable factfinder could. See City of Keller, 168 S.W.3d at 822, 827. When Father’s
attorney asked him what time the modification order said he was supposed to pick up
Dana and Debra, Father read from the telephone-contact provision of the order:
“Well, it says each Wednesday and each Sunday . . . the parent in possession of the
children should have the children available at the parent’s residence between the
hours of 8 p.m. and 8:30 Central Standard Time.” To the extent this evidence favors
Father, a reasonable factfinder would not credit this evidence in determining whether
Mother and Maternal Grandmother violated Father’s court-ordered right to
possession and access because (1) Father is not complaining about being denied
telephone contact with his daughters and (2) his rights under the telephone-contact
provision are unrelated to his possessory rights. Additionally, Father offered, and the
trial court admitted, a copy of an earlier order, which included, among other things,
Father’s possessory rights as ordered by the trial court in February 2005. But here,
Father is suing for a violation of his possessory rights under the January
2018 modification order, not the February 2005 order.
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IV. The Trial Court’s Limiting Father’s Evidence
and Various Evidentiary Rulings
In Father’s second and third issues, respectively, he argues that the trial court
abused its discretion (1) by not allowing Father to present evidence of instances that
he was denied possession other than the four specific instances listed in his pleadings7
and (2) by sustaining Mother’s relevancy and hearsay objections, as well as her
objections to evidence as outside of the scope of the pleadings. Within these two
issues, Father argues that the trial court’s rulings prevented him from putting on his
case and that the cumulative effect of these rulings was to deny him his right to a fair
trial by jury.
Assuming that Father preserved these complaints for our review, we need not
address whether the trial court abused its discretion in making these various rulings
because the trial court’s errors, if any, in excluding this evidence did not probably
cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1), 47.1. In
other words, even if the trial court had admitted the police reports, had allowed
Father to testify regarding Debra’s demeanor, and had allowed testimony regarding
other alleged instances of Father being denied possession of or access to his
daughters, this evidence (either individually or cumulatively) was insufficient to raise a
7
In support of this issue, Father argues that generally pleading that “[o]n two or
more occasions,” Mother, Maternal Grandmother, Paternal Grandmother, and Aunt
failed to comply with a court order by failing to surrender the children to him as
ordered sufficed to give them fair notice that he was complaining about other
instances of interference with his possessory rights. See Tex. R. Civ. P. 47(a).
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fact issue on Father’s Chapter 42 claims for the reasons explained above. See Tex. R.
App. P. 44.1(a)(1). We overrule Father’s second and third issues.
V. Conclusion
Having overruled Father’s three issues, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: January 12, 2023
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