In the Interest of K.J.B., a Child v. the State of Texas ( 2023 )

AFFIRM; Opinion Filed February 27, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01000-CV
IN THE INTEREST OF K.J.B., A CHILD
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-57199-2019
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Kennedy
Father, appearing pro se, appeals the trial court’s final decree of divorce. We
affirm. Because all dispositive issues are settled in law, we issue this memorandum
opinion. See TEX. R. APP. P. 47.2(a), 47.4.
BACKGROUND
Father and Mother were married on or about July 7, 2017. Their child, K.J.B.,
was born in 2018.
On December 4, 2019, Mother filed a petition for divorce, seeking to be
appointed sole managing conservator of the child with Father appointed possessory
conservator and, alternatively, that she and Father be appointed joint managing
conservators of K.J.B. The Texas Attorney General intervened.1
Mother and Father propounded discovery to each other. After receiving each
other’s response, they both moved to compel, asserting the responses were
inadequate. The trial court ordered Mother to produce specific documents, and
Father to respond to discovery requests without objection. In November of 2020,
Father filed motions for contempt, enforcement, and sanctions against Mother for
alleged violations of various orders. There is no indication in the record that these
motions were ruled on.
On August 13, 2021, Mother filed an amended petition for divorce, seeking
to be appointed sole managing conservator of K.J.B. and alleging that appointment
of herself and Father as joint managing conservators would not be in the best interest
of the child. On August 17, the trial court conducted a bench trial, at the conclusion
of which, the trial court judge granted the parties a divorce and directed Mother’s
attorney to draft the final decree of divorce. After Mother’s attorney prepared the
final decree of divorce, Father refused to approve the final decree of divorce. Mother
filed motions to sign2 the final decree of divorce, and Father objected to same. On
November 2, the trial court conducted a hearing on the motion to enter judgment,
1
The Texas Attorney General declined to file a brief in this matter.
2
The record does not indicate whether Mother was moving to compel Father or request the trial court
judge sign the final decree of divorce.
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during which the court ordered changes be made to the proposed final decree of
divorce. That afternoon, the judge signed the final decree of divorce. Father timely
filed his notice of appeal.
DISCUSSION
On appeal, as in trial, a pro se appellant must properly present her case. See
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet.
denied). Although we liberally construe pro se briefs, litigants who represent
themselves are required to comply with applicable rules and are held to the same
standards as litigants 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.). To hold otherwise would give pro se litigants an unfair
advantage over litigants with an attorney. In re N.E.B., 251 S.W.3d at 212.
In keeping the foregoing principles in mind, we construe Father’s brief to raise
the following issues:3
1. The trial court erred by excluding evidence.
2. The trial court erred by failing to take judicial notice when requested
by Father.
3. The trial court erred by denying Father’s motion for abatement.
3
Mother argues many of Father’s issues are “multifarious,” urging that these issues allege multiple
unrelated issues. We may disregard any multifarious issue, but we may consider it if we can determine,
with reasonable certainty, the error about which complaint is made. See Rich v. Olah, 274 S.W.3d 878, 885
(Tex. App.—Dallas 2008, no pet.). Because we can discern, with reasonable certainty, some of Father’s
issues, we will consider his arguments with respect to same to the extent they are preserved for our review.
See id.; see also TEX. R. APP. P. 33.1(a).
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4. The trial court erred by denying Father’s challenge to the jurisdiction
in which he urged that neither party satisfied the residency
requirements.
5. The trial court erred in its division of the parties’ property.
6. The trial court erred by failing to compel Mother to respond to Father’s
discovery requests.
7. The trial court erred by failing to impose sanctions on Mother for
neglecting the K.J.B.
8. The trial court erred by failing to require Mother to change her name.
9. The trial court erred by granting the divorce on the ground of
insupportability.
10. The trial court erred by entering a judgment not supported by sufficient
evidence.
11. The trial court erred by demonstrating bias against Father.
I. Preservation of Issues
Rule 33.1 of our appellate rules requires that, as a prerequisite to presenting a
complaint for appellate review, the record must show that the complaint was made
to the trial court by timely, request, objection or motion and that the trial court either
ruled or refused to rule on the request. See TEX. R. APP. P. 33.1(a).
Mother argues that Father failed to preserve many of his issues, and we agree.
Father’s first issue regarding allegedly improper exclusion of evidence refers to the
trial court’s November 2 hearing at which he attempted to argue his motion
challenging the court’s jurisdiction on the ground that Mother failed to establish her
residency in Collin County. However, the record contains no offer of any proof,
only a reference to documents filed with the court. Similarly, Father’s second issue
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addressing the trial court’s failure to take judicial notice and his third issue
addressing his motion for abatement are not preserved by any objection or ruling in
the record. As for Father’s sixth issue regarding the trial court’s alleged error in
“allow[ing] [Mother] almost 2 years to present material from Motions for
Discovery,” although he urges he filed numerous motions for enforcement, he does
not identify anywhere in the record where the trial court denied these motions or
refused to rule on them. Because Father failed to preserve his first, second, third,
and sixth issues, we need not consider them. See TEX. R. APP. P. 33.1(a).
II. Jurisdiction
In his fourth issue, Father challenges the trial court’s ruling denying his
jurisdictional challenge. At the November 2 hearing on the motion to enter
judgment, Father attempted to argue the trial court lacked jurisdiction over the suit,
asserting his belief that Mother lived in California at that time she filed suit and did
not live in Collin County or in Texas at that time. The trial court denied Father’s
motion as untimely.
A suit for divorce may not be maintained in this state unless at the time the
suit is filed either the petitioner or the respondent has been: (1) a domiciliary of this
state for the preceding six-month period; and (2) a resident of the county in which
the suit is filed for the preceding 90-day period. See TEX. FAM. CODE § 6.301.
Contrary to Father’s framing of the issue, the provisions of the residency statute are
not jurisdictional, but rather provide the necessary qualifications for bringing an
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action for divorce. See Stallworth v. Stallworth, 201 S.W.3d 338, 345 (Tex. App.—
Dallas 2006, no pet.). The question of residency is a fact issue for the trial court to
determine, and the trial court’s findings will not be disturbed unless there is a clear
abuse of discretion. See id. A statement in the petition for divorce that the petitioner
satisfies the residency and domicile requirements is considered a judicial admission
in the divorce and obviates the need for any evidence on that issue. See In Matter of
Marriage of Svalesen, No. 05-13-01151-CV, 2015 WL 4456096, at *2 (Tex. App.—
Dallas July 21, 2015, no pet.) (mem. op.).
During trial, the trial court questioned whether either Father or Mother was a
resident of Texas and of Collin County:
COURT: Okay. Prior to filing for divorce, were one of you a resident
of the State of Texas for the preceding six-month period and of Collin
County for the preceding 90-day period?
[FATHER]: I wasn’t. Jurisdiction -- jurisdiction-wise, I never
contested it, but she said she was.
Mother urges the foregoing constitutes some evidence that she met the residency
requirements to support the trial court’s finding in the final decree of divorce. Father
argued, but did not testify or make any offer of proof, that Mother was a resident of
California, and that, although he had lived in Texas before, he was not living in this
state for the requisite statutory period before the suit was filed.
We note that the record contains Mother’s December 4, 2019 petition and her
August 13, 2021 amended petition. In both, Mother affirmatively states she has been
a domiciliary of Texas for the preceding six-month period and a resident of “this
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county for the preceding ninety-day period.” These admissions were unequivocal
and conclusively established the residence requirements. See Svalesen, 2015 WL
4456096, at *3. No further evidence was necessary. See id. Thus, we conclude the
trial court did not abuse its discretion.
Accordingly, we overrule Father’s fourth issue.
III. Division of Property
In a divorce decree, the trial court shall order a division of the parties’ estate
in a manner that the court deems just and right, having due regard for the rights of
each party. TEX. FAM. CODE § 7.001. When exercising its broad discretion to divide
the marital property, the trial court may consider many factors, including the nature
of the marital property, the relative earning capacity and business opportunities of
the parties, the parties’ relative financial condition and obligations, the parties’
education, the size of the separate estates, the age, health, and physical conditions of
the parties, fault in breaking up the marriage, the benefit the innocent spouse would
have received had the marriage continued, and the probable need for future support.
See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). The property division need
not be equal. See id. at 698–99. The party complaining of the division of the
community estate has the burden of showing from the evidence in the record that the
trial court’s division of the community estate was so unjust and unfair as to constitute
an abuse of discretion. See Slicker v. Slicker, 464 S.W.3d 850, 858 (Tex. App.—
Dallas 2015, no pet.). Generally, a party who does not provide to the trial court any
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value for the property cannot, on appeal, complain of the trial court’s lack of
information in dividing the community estate. See id.In his fifth issue, Father complains the trial court should not have divided the
property as it did, but he provides no specific complaints regarding which property
was improperly awarded or how the trial court’s division of property constituted an
abuse of discretion. See Slicker, 464 S.W.3d at 858. Accordingly, we overrule this
issue.
IV. Sanctions
In his seventh issue, Father urges the trial court erred by “never institut[ing]
sanctions upon [Mother] for causes of actions and deprivations against the parent
child relationship.” Father does not cite to any motion for sanctions and none are
apparent from the record. Thus, to the extent his argument is that the trial court
failed to sanction Mother pursuant to any request from him, that argument is not
preserved. See TEX. R. APP. P. 33.1(a). Accordingly, we overrule this issue.
V. Mother’s Name
In his eighth issue, Father urges the trial court failed to change Mother’s
surname on his request. Father does not cite anything in the record to establish this
request was made. Further, although the family code provides for a party to request
a change of his or her own name as part of a decree of divorce or annulment, Father
does not cite to us any authority, and we have found none, to support any party’s
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attempt to change the name of another. See TEX. FAM. CODE § 6.706. Accordingly,
we overrule this issue.
VI. Ground of Divorce
In his ninth issue, Father complains of the trial court’s grant of divorce on the
ground of insupportability and the failure to grant the divorce on the grounds of
Mother’s cruelty and “imprurient behavior.” We construe his complaint to challenge
the sufficiency of the evidence to support the ground of insupportability and to urge
error in failing to grant the divorce on his asserted grounds.
We review the grounds on which a trial court grants a divorce for an abuse of
discretion. In re Marriage of C.A.S. & D.PS., 405 S.W.3d 373, 383 (Tex. App.—
Dallas 2013, no pet.). A trial court’s findings are reviewable for legal and factual
sufficiency of the evidence under the same standards that are applied in reviewing
evidence supporting a jury’s answer. See id. at 382.4 To determine whether the trial
court abused its discretion because the evidence is legally or factually insufficient to
support the trial court’s decision, we consider whether the trial court (1) had
sufficient evidence upon which to exercise its discretion, and (2) erred in its
4
In evaluating a legal sufficiency challenge, we credit evidence that supports the finding if a reasonable
fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. See In re
Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 382 (Tex. App.—Dallas 2013, no pet.) (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Newberry v. Newberry, 351 S.W.3d 552, 555 (Tex. App.—El
Paso 2011, no pet.). The test for legal sufficiency is “whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.” See id. (citing City of Keller, 168 S.W.3d at
827). In a factual sufficiency review, we examine all the evidence in the record, both supporting and
contrary to the trial court's finding, and reverse only if the finding is so against the great weight of the
evidence as to be clearly wrong and unjust. See id. at 382–83.
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application of that discretion. See id. at 383. We conduct the applicable sufficiency
review when considering the first prong of the test. See id. We then determine
whether, based on the elicited evidence, the trial court made a reasonable decision.
See id. A trial court does not abuse its discretion if there is some evidence of a
substantive and probative character to support the decision. See id.
The family code provides several grounds for divorce: insupportability,
cruelty, adultery, conviction of felony, abandonment, living apart, and confinement
in mental hospital. FAM. §§ 6.001–.007. On the petition of either party to a marriage,
the court may grant a divorce without regard to fault if the marriage has become
insupportable because of discord or conflict of personalities that destroys the
legitimate ends of the marital relationship and prevents any reasonable expectation
of reconciliation. See FAM. § 6.001.
Here, the record of the trial reflects that, in response to questions from the trial
court judge, Father answered that his marriage to Mother had “become insupportable
due to discord or conflict of personalities that destroy[ed] the legitimate ends of the
marital relationship” and that there was no possibility of reconciliation. Thus, we
conclude some evidence supports the trial court’s finding of insupportability such
that the trial court did not abuse its discretion.
As for the grounds of cruelty and “imprurient behavior,” Father does not cite
any evidence in the record to support either of these grounds, despite given an
opportunity by this Court to include those record citations. See Strange v. Cont’l
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Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). We have no
duty to perform an independent review of the record and the applicable law to
determine if the trial court erred. See id. Further, to the extent Father complains the
trial court did not allow the introduction of any supporting evidence, he failed to
make any offer of proof or otherwise preserve this complaint. See TEX. R. APP. P.
33.1(a).
Accordingly, we overrule Father’s ninth issue.
VII. Sufficiency of the Evidence to Support the Final Decree of Divorce
We construe Father’s tenth issue to challenge the sufficiency of the evidence
to support the final decree of divorce. His only citation to the record is to reurge his
complaint regarding the trial court judge’s refusal to take judicial notice of the fact
that there was another suit pending in Travis County, despite given an opportunity
by this Court to include those record citations. See Strange, 126 S.W.3d at 678.
Again, we have no duty to perform an independent review of the record and the
applicable law to determine if the trial court erred. See id. Accordingly, we conclude
Father waived his tenth issue.
VIII. Judicial Bias
Although Father does not set forth this complaint as an issue separate from
the other issues he raises, we construe his brief to raise the issue of judicial bias. In
sum, he complains the trial court judge threatened him, mocked him, and otherwise
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treated him with a lack of respect. He also alleges the trial court had predetermined
the outcome of the trial before considering any evidence from the parties.5
5
Below are quotations from Father’s brief with internal quotations attributed to the trial court judge:
“If we are going to trial, you are paying all of his attorney fees . . . .” This was used as a
threat by the court to conform to the desires of the court after the Appellant repeatedly
asked for a Trial.
“I’m going to pop you for his attorney fees.” This was used as [] another deterrent for the
court to steer a desired outcome without equality in the introduction of evidence and
hearing the Appellant[’]s merits on a case.
“You have no idea what you are doing.” This was spoken as a tactic of abuse to diminish,
discount, disregard, disgrace and degrade as was often the case [] when the filings were
mentioned for abatement of the case based on the jurisdictional challenges after the
Motions for discovery were reviewed taking 508 Calendar days to receive. There [were]
also 3 Motions for Enforcement filed, 2 Contempt Filings, 4 Motions to Compel, 3 Motions
for sanctions.
“Objection overruled.” [T]his point was as the Appellant asked the court to consider the
grounds for divorce in other terms.
“Pursuant to article II.” This was brought and filed by the Appellant to the court. This was
another option given, which would compel the court to hearing. This would furthermore
allow the court the ability to the adherence of Law and application by the rules of the State
of Texas.
“I’m signing a decree in 15 minutes.” Spoken regardless of any petition or issue filed,
raised or presented to the court, which was determinate in finalizing its mold of a Divorce
decree.
Circumventing the rules allowed and presented a manipulated outcome. This outcome
steered by the court, reached the courts desired result, not the litigants or results as
determined by Law. In this assertion, the Trial court reached and perpetuated its own
interest or the Trial court’s economic efficiency. The Law was not allowed by the Court
to protect the Appellant’s Civil rights, and the mandate of the Law to operate impartially
and equitably.
The Trial court[’]s procedure explicitly treated and deemed the Appellant as
unsophisticated, unstratified or lacking cerebral or professional utility. In short, the
Appellant was handled as ignorant in the institution Law and process of Justice. The court
constantly measured its ability of abuse and used its unfettered authority. The Court
mocked the Appellant from the inception of the case and created within the proceedings
trouble and distress, perplexities and despair, persecution, forsaking and casting down. The
Appellant was subjugated to the suffering, humiliation, shame, embarrassment, loss,
entrapment, sickness, and attack of constant judicial violation, on the way to a sealed,
stamped Divorce decree.
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First, we consider whether the trial judge’s comments constituted bias as a
matter of law. The United States Supreme Court has determined that “judicial rulings
alone almost never constitute a valid basis for a bias or partiality motion,” and
opinions the judge forms during a trial do not necessitate recusal “unless they display
a deep-seated favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a
bias or partiality challenge.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.
2001) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994). Further, “[n]ot
establishing bias or partiality . . . are expressions of impatience, dissatisfaction,
annoyance, and even anger . . . . A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune.” See id. (quoting Liteky, 510 U.S. at555–56). In short, a trial court has the inherent power to control the disposition of
cases “with economy of time and effort for itself, for counsel, and for litigants.” See
id. (quoting Landis v. North Am. Co., 299 U.S. 248, 254 (1936)).
The court discounted, disregarded, dismissed, disgraced and degraded the Appellant in the
introduction of filing and verbalization of issue, in the pursuit of justice and fair judgment.
Through mockery, ridicule, dehumanization, projection, microaggressions, disrespect,
threats, intimidation, force and coercion, proceedings and a complete trial were tainted
along with Civil rights, violating United States of America Constitutional provisions,
Federal Law statute, Texas State Law Texas Litigation Guide 20, and local rules; all
aforementioned above by Appellant’s Opinion.
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Similarly, Texas courts have held that “the discretion vested in the trial court
over the conduct of a trial is great.” See id. (quoting Schroeder v. Brandon, 172
S.W.2d 488, 491 (1943)). A trial court has the authority to express itself
in exercising this broad discretion. See id. at 240–41. Further, a trial court may
properly intervene to maintain control in the courtroom, to expedite the trial, and to
prevent what it considers to be a waste of time. See id. at 241.
We apply these principles to this case, and after carefully examining the
judge’s allegedly improper comments in the context of the entire record, we
conclude there is no evidence of judicial bias. The record indicates that the judge
exercised his broad discretion to maintain control and promote expedition and that
none of the remarks or behavior rise to the level of “deep-seated favoritism or
antagonism that would make fair judgment impossible.” See id. at 240 (quoting
Liteky, 510 U.S. at 555).
Accordingly, we overrule Father’s eleventh issue.
CONCLUSION
We affirm the final decree of divorce.
/Nancy Kennedy/
NANCY KENNEDY
211000F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.J.B., A On Appeal from the 296th Judicial
CHILD District Court, Collin County, Texas
Trial Court Cause No. 296-57199-
No. 05-21-01000-CV 2019.
Opinion delivered by Justice
Kennedy. Justices Carlyle and
Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee DELESIA BOX recover her costs of this
appeal from appellant WILLIE BOX.
Judgment entered this 27th day of February 2023.
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