in the Interest of A.G.F.W., a Minor Child ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00111-CV
IN THE INTEREST OF A.G.F.W., A MINOR CHILD
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 73,540
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Rustin Perot Wright, father of A.G.F.W., sought to modify a permanent injunction
preventing him from entering A.G.F.W. or allowing A.G.F.W. to enter any martial arts or self-
defense classes or competitions. Wright appeals the trial court’s denial of the motion to modify
and further appeals the imposition of attorney’s fees against him. We affirm the judgment of the
trial court.
I. Background
A.G.F.W. was born to Ashley Brooke Forrest in 2004. The trial court entered an order
adjudicating parentage and appointed Forrest and Wright as joint managing conservators of the
child. Forrest was given the exclusive right to designate the primary residence of the child
within Lamar or Denton County, Texas. A standard possession order was entered, giving Wright
extended summer possession, with appropriate notice to Forrest. 1 From the age of three,
A.G.F.W. was enrolled in and attended jujitsu classes in the summer while in possession of his
father. When A.G.F.W. allegedly injured his neck in jujitsu in 2011, the trial court temporarily
enjoined Wright from entering A.G.F.W. in any martial arts or self-defense classes or
competitions. 2
Martin Thomas Cutrell, M.D., testified at the temporary injunction hearing that he saw
A.G.F.W. after the child was involved in a grappling match sometime after December 2010,
1
Forrest was later married and is now Ashley Brooke Womack.
2
A.G.F.W. was six years old when the temporary injunction was issued. The record indicates that a temporary
restraining order was issued prior to the temporary injunction hearing, restraining Wright from permitting A.G.F.W.
to participate in martial arts classes or competition. This order does not appear in the clerk’s record. Further,
counsel for Wright indicated at the temporary injunction hearing that a motion to dissolve the temporary restraining
order was filed. This document likewise does not appear in the clerk’s record.
2
when he was placed in a stranglehold by a ten-year-old child. A.G.F.W. experienced muscle
spasms and pain in his neck; normal spinal curvature did not appear on the x-ray. A.G.F.W.
underwent physical therapy that helped to relieve the problem.
Based on a reasonable medical probability, the neck injury was caused by A.G.F.W.’s
participation in mixed martial arts. Cutrell expressed concern that greater injury, such as growth
plate injury, suffocation-type injuries, neurologic injury, and cardiac rhythm disorder could occur
with A.G.F.W.’s continued participation in this sport. The American Academy of Pediatrics
does not condone participation in sports such as boxing and mixed martial arts by children.
Cutrell recommended that A.G.F.W. temporarily cease participation in jujitsu to allow for his
neck to recover.
The court ruled that A.G.F.W. could not participate “in any mixed martial arts this
summer.” 3 The court further indicated, however, that “[i]f you want to get him back in it next
summer . . . we’ll have another hearing on it and we’ll talk about it.” In December 2011, Wright
appeared pro se in the trial court seeking to dismiss the temporary injunction. 4 Wright testified
that A.G.F.W. had never been hurt doing jujitsu and that he wanted his son to have the
opportunity to participate in a sport that he enjoys. Rather than dismissing the temporary
3
This ruling was made from the bench. A written order was later issued.
4
The trial court admitted evidence offered by Wright, consisting of an affidavit with letters by Shane M. Miller,
M.D., and Charles S. Dunlap, M.D., A.G.F.W.’s pediatricians in Plano. These letters do not appear in the record.
3
injunction, the court signed an order making the injunction permanent. 5 The trial court indicated
that Wright was free to file a motion to modify the permanent injunction in the future.
In July 2012, Wright filed a motion to modify the permanent injunction, alleging
A.G.F.W. had fully recovered from any neck injury that he may have sustained. Attached to the
motion to modify were two business records affidavits. The first affidavit was from Pediatric
Associates of Dallas, consisting of two pages of records from Dunlap. These records indicate
that Dunlap performed a routine physical examination of A.G.F.W. in June 2012, which revealed
the child to be “completely healthy with no current medical problems or recent injuries.” These
records also include Dunlap’s opinion that A.G.F.W. “may participate in age appropriate martial
arts activities if he so chooses at this time.”
A.G.F.W. was also seen by Dr. Miller at Children’s Medical Center in July. Miller’s
report—attached to the motion to modify along with a business records affidavit—indicates that
A.G.F.W. was last seen in the clinic in April 2011 “regarding neck complaints. He has been
doing well since that time and is no longer complaining of any neck pain. . . . No radiation,
numbness, weakness, or paresthesias [was] reported. . . . From a medical standpoint, his cervical
strain has resolved. He does not have any restrictions on athletic participation and is cleared to
participate in sports.” Miller further stated, “[A.G.F.W.] does not express desire to participate in,
nor does he express enjoyment from martial arts at this point in time and my recommendation is
that he does not participate in martial arts based on these facts.”
5
The permanent injunction prohibited Wright from “[e]ntering the child, [A.G.F.W.], or allowing the child,
[A.G.F.W.], to enter any martial arts or self[-]defense classes or competition. This injunction is effective
immediately and shall continue in force and effect until further order of this Court.”
4
A hearing was conducted on the motion to modify in September 2012. The only witness
that was called to testify at the hearing was Stuart Johnson, a jujitsu instructor at Alan Moulders’
Martial Arts Studio where A.G.F.W. was previously a student. Johnson testified that jujitsu
emphasizes honesty, integrity, modesty, perseverance, and an indomitable spirit. He testified
that A.G.F.W. never participated in cage fighting. Wrestling is done on mats, under supervision.
The sport does not involve punching, elbowing, or kicking. The object is to take each other to
the ground and to force the opponent into submission. As an instructor, Johnson will stop a
match when he observes something that could injure the child. Likewise, competition referees
watch closely to ensure that the children are careful while they are grappling. Johnson stated that
he was aware of no reason why A.G.F.W. should not participate in martial arts, but he conceded
that he had no medical knowledge regarding A.G.F.W.’s alleged injury. He further conceded
that sometimes children are injured while participating in jujitsu. Brazilian jujitsu, the type of
martial arts Johnson teaches and the type taken by A.G.F.W., teaches joint manipulation. Joint
manipulation involves “putting a joint in such a position and putting pressure on it [so] that it
causes the other person to tap.”
The court denied Wright’s motion to modify the injunction. 6 Counsel for Womack then
requested an award of attorney’s fees because, “We’ve been back twice now.” While Womack’s
counsel testified that attorney’s fees totaled $1,500.00, the trial court awarded fees in the amount
of $500.00.
6
The trial court entered a written order in December 2012 denying the motion to modify.
5
In November 2012, the trial court entered findings of fact and conclusions of law. In its
findings, the trial court indicated that “[m]ovant called one witness to testify at the trial on
September 28, 2012. Movant’s one witness was not qualified to give a medical opinion.” The
court concluded that “[a] change in circumstances warranting a modification of the existing
injunction does not exist.”
II. Analysis
(a) Standard of Review
A trial court’s modification order in a family law case is reversed only when it appears
from the record as a whole that the trial court abused its discretion. Wolford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam). Under this standard, legal and factual sufficiency are
not independent grounds for asserting error, but are relevant factors in determining whether the
trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas
2004, no pet.); In re Davis, 30 S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.). A trial
court has broad discretion to determine the best interest of a child in family law matters.
Worford, 801 S.W.2d at 109 (child support); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982) (custody, control, possession, visitation); In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (conservatorship). A trial court abuses its discretion when it
acts arbitrarily or unreasonably or when it clearly fails to correctly analyze or apply the law. See
In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
6
(b) Changed Circumstances
A trial court may modify a permanent injunction upon a showing of changed
circumstances. 7 Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991) (per curiam). Changed
circumstances are conditions that either alter the status quo after the issuance of an injunction or
make an injunction unnecessary or improper. See Chase Manhattan Bank v. Bowles, 52 S.W.3d
871, 879 (Tex. App.—Waco 2001, no pet.). The party seeking modification has the burden of
demonstrating that circumstances require modification of the injunction. City of Seagoville v.
Smith, 695 S.W.2d 288, 289 (Tex. App.—Dallas 1985, no pet.).
Here, Wright contends the changed circumstances warranting modification were
presented to the trial court as newly revealed facts demonstrating that A.G.F.W. had no neck
injury and had not had one since April 2011. Wright relies on his own affidavit attached as an
exhibit to the motion to modify. This affidavit indicates that A.G.F.W. is seven years old and
plays soccer, baseball, basketball, and flag football. The affidavit also discusses the beneficial
effects of participation in martial arts as well as reports Wright received from A.G.F.W.’s
physicians. This affidavit was not, however, introduced as evidence at the hearing on the motion
to modify and, therefore, cannot be considered on appeal. 8 See Celadon Trucking Servs., Inc. v.
Titan Textile Co., 130 S.W.3d 301, 307 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(summary judgment affidavits and evidence not admitted at trial could not be considered on
appeal).
7
We do not review the propriety of the grant of the temporary or permanent injunctions.
8
Wright did not testify at the modification hearing.
7
Wright further claims the trial court incorrectly refused to acknowledge medical evidence
attached to the motion to modify. This evidence, as previously discussed, indicates A.G.F.W. is
no longer suffering from a neck injury and is cleared to participate in sports. This information is
included in medical records attached to business records affidavits from Children’s Medical
Center and Pediatric Associates of Dallas. The affidavits and records were attached to the
motion to modify. Medical records may, under certain circumstances, be admitted into evidence
with appropriate affidavits pursuant to Rules 803(6) and 902(10) of the Texas Rules of Evidence.
TEX. R. EVID. 803(6), 902(10). 9 Even so, such records must nevertheless be offered into
evidence and admitted by the trial court. Although the affidavits and medical records were
attached to Wright’s motion to modify, they were not introduced into evidence at the
modification hearing. The attachment of the affidavits and records to the motion does not
replace the requirement that evidence must be offered and received into evidence by the trial
court. See generally TEX. R. EVID. 103.
The trial court specifically found that the sole witness at the hearing was not qualified to
give a medical opinion and concluded that a change in circumstances warranting modification
did not exist. The trial court made no findings or conclusions regarding the information in
A.G.F.W.’s medical records. Because this evidence was not introduced at the hearing, we may
not consider it on appeal. See Noble Exploration, Inc. v. Nixon Drilling Co., 794 S.W.2d 589,
592 (Tex. App.—Austin 1990, no pet.) (contract attached to reply to motion for partial summary
judgment not introduced into evidence at trial could not be considered on appeal); see also
9
Because it is not necessary to our resolution of this appeal, we do not decide the issue of compliance with these
Rules.
8
Paselk v. Rabun, 293 S.W.3d 600, 612 (Tex. App.—Texarkana 2009, pet. denied). In short,
Wright presented no evidence of changed circumstances warranting modification of the
permanent injunction. 10
We find no abuse of discretion and uphold the judgment of the trial court in sustaining
the injunction.
(c) Attorney’s Fees
Wright claims the trial court abused its discretion in ordering him to pay Womack’s
attorney’s fees in the amount of $500.00. Wright claims that because the trial court specifically
indicated, on two different occasions, that he could request a new hearing or a modification of
the injunction, he should not have been ordered to pay fees for requesting hearings he was
permitted to request. Wright analyzes the grant of attorney’s fees as sanctions. There is no
indication in the record to support this contention. 11 The trial court did not specify its reasons for
10
Even assuming the medical records were properly before the trial court and were considered, we find no abuse of
discretion in the court’s decision to maintain the permanent injunction. The injunction was initially granted based
on medical testimony from Cutrell. Aside from his testimony regarding a neck injury, Cutrell also testified that he
was concerned that greater injury, such as growth plate injury, suffocation-type injury, neurologic injury, or cardiac
rhythm disorder could occur with A.G.F.W.’s continued participation in this sport. Nothing in the medical records
attached to the motion to modify addresses this concern. Although Miller’s records indicate that A.G.F.W.’s neck
injury had resolved, he nevertheless recommended that A.G.F.W. not participate in jujitsu because A.G.F.W. did not
wish to so participate. Dunlap stated, “A.G.F.W. can participate in sports and physical activities of his choosing at
this time. The focus needs to be on having fun and on developing skills. . . . If new injuries or problems occur, I am
more than happy to examine him or have him re-evaluated by Dr. Miller.” Assuming this evidence was reviewed
and considered, the trial court did not find a sufficient demonstration of changed circumstances requiring a
modification.
11
Counsel for Womack requested attorney’s fees because, “We’ve been back twice now.” Wright interprets the
grant of attorney’s fees “as sanctions against Wright for filing the Motion to Modify” under Rule 13 of the Texas
Rules of Civil Procedure and/or under Chapter 10 of the Texas Civil Practice and Remedies Code. See TEX. R. CIV.
P. 13; TEX. CIV. PRAC. & REM. CODE ANN. §§ 10.001–.006 (West 2002). Wright then analyzes the propriety of
sanctions under each provision. We do not believe such analysis is correct. Even though the trial court awarded
attorney’s fees after brief testimony regarding reasonable and necessary fees, the court did not conduct a sanctions
analysis under Rule 13 or Chapter 10 of the Texas Civil Practice and Remedies Code.
9
awarding attorney’s fees; instead, it simply found that “[t]he Respondent incurred, and is entitled
to collect from the Movant, reasonable and necessary attorney’s fees totaling $500.00.”
Wright’s sanctions analysis ignores Section 106.002 of the Texas Family Code, which
provides that a court may render judgment for reasonable attorney’s fees in a suit affecting the
parent-child relationship. TEX. FAM. CODE ANN. § 106.002(a) (West 2008); see Bailey v.
Rodriguez, 351 S.W.3d 424, 427 (Tex. App.—El Paso 2011, no pet.); see also In re Pecht, 874
S.W.2d 797, 803 (Tex. App.—Texarkana 1994, no writ) (holding reasonable attorney’s fees may
be awarded as costs in any suit affecting parent-child relationship and decision to award such
fees within discretion of trial court). Entitlement to a discretionary award of attorney’s fees,
however, requires that the movant affirmatively plead for them unless the issue is waived or tried
by consent. Pecht, 874 S.W.2d at 803. Womack did not file a reply to the motion to modify and
did not otherwise affirmatively plead for attorney’s fees. Here, the issue of attorney’s fees was
tried by consent. 12
While this matter involves an injunctive proceeding, it is directly connected with the trial
court’s finding of paternity and with its findings in the agreed order in suit to modify the parent-
12
After Wright’s closing remarks, the following exchange took place:
[Counsel]: Is there an opening for attorney’s fees? We’ve been back twice now.
THE COURT: Yeah, probably. You want to testify to some?
[Counsel]: Yeah, I’ll testify.
No objection to the testimony regarding attorney’s fees was interposed.
10
child relationship. 13 Therefore, the trial court’s fee award was proper under Section 106.002(a)
of the Texas Family Code. TEX. FAM. CODE ANN. § 106.002(a). We find no abuse of discretion
in the award of attorney’s fees. 14
III. Conclusion
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: June 5, 2013
Date Decided: June 6, 2013
13
In March 2010, the trial court entered an agreed order in suit to modify parent-child relationship ordering that both
Womack and Wright remain joint managing conservators of A.G.F.W. and setting forth the rights of the parties
relative to the child (modifying standard possession order).
14
Counsel for Womack testified that he has been a licensed attorney since 2004 practicing in the area of family law
and that his hourly rate was $250.00 per hour. Counsel also outlined the work undertaken with respect to the motion
to modify and asked for attorney’s fees in the amount of $1,500.00. The trial court set attorney’s fees at $500.00.
11