Roberto Hinojosa v. Brittany Hinojosa ( 2012 )

Motion Denied; Order filed February 14, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00989-CV
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ROBERTO HINOJOSA, Appellant
V.
BRITTANY HINOJOSA, Appellee
On Appeal from County Court No. 3
Galveston County, Texas
Trial Court Cause No. 10-FD-3116
ORDER
Appellant filed a motion with this court seeking reinstatement of his appeal, and
suspension of the trial court’s order in this suit affecting parent-child relationship.
On August 30, 2011, the trial court signed a final judgment in this suit affecting
the parent-child relationship. In the judgment, the trial court appointed appellant and
appellee as joint managing conservators of the parties’ two children. On November 29,
2011, appellant filed a motion seeking to suspend enforcement of the judgment naming
the parties as joint managing conservators and permitting appellee visitation with the
children. Appellant contended that suspension was necessary because appellee had not
spent time with the children since 2004, and the children were afraid to see their mother
because they did not know her.
Pursuant to section 109.002(a) of the Texas Family Code and Texas Rule of
Appellate Procedure 24.2(a)(4), this court abated the appeal to permit appellant the
opportunity to request suspension of enforcement from the trial court. On December 20,
2011, the trial court held a hearing on appellant’s motion. On December 30, 2011, the
court reporter’s record of the hearing was filed in this court. On January 10, 2012, a
supplemental clerk’s record containing the trial court’s findings of fact and conclusions
of law was filed. After hearing evidence on appellant’s motion, the trial court found:
1. On August 30, 2011, this Court entered Final Order in Suit Affecting
Parent Child Relationship.
2. In the Court’s prior Findings of Fact, this Court found that “Petitioner
[appellant] is guilty of cruel treatment toward Respondent [appellee] of a
nature that renders further living together insupportable. Petitioner’s cruel
treatment was a factor in Respondent residing in Kentucky.”
3. That Order rightfully appointed the parents Joint Managing
Conservators over their children. In re J.C., 346 S.W.3d 189, 193 (Tex App—
Houston [14th Dist ], 2011 no pet).
4. No credible evidence was produced showing that appointment of
Brittany Hinojosa, mother, as a managing conservator would “significantly
impair the children’s physical health or emotional development.”
5. On November 15, 2011, this Court properly denied Petitioner’s Motion
for Temporary Orders pending appeal.
6. It is the public policy of this State to “encourage frequent contact
between a child and each parent for periods of possession that optimize the
development of a close and continuing relationship between each parent and
child.” See TEX. FAM. CODE § 153.251. To achieve this end, the Legislature
established a rebuttable presumption that a standard possession order provides
the reasonable minimum possession of a child for a parent named as a joint
managing conservator, and such order is in the best interest of the child. See
id. at § 153.252.
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7. Based on all evidence properly before the Court, the credibility of the
witnesses, and the best interest of the children, the Court rightfully ordered a
possession schedule for mother that is consistent with a standard possession
order.
8. Petitioner’s and his counsel’s misrepresentations to the mother to
prevent her access to the children, and to obstruct her court ordered visitations
is disturbing, unethical, and sanctionable. (emphasis in original)
At the hearing on appellant’s motion to suspend enforcement, appellant testified
the he filed the motion to suspend enforcement asking that appellee have only supervised
access to her children. Appellant argued that supervised visitation was necessary for the
health and safety of the children. At the conclusion of the hearing, the trial court noted
that it had previously denied appellant’s motion to enforce, and that the evidence
introduced at the hearing did not raise any new issues other than those originally tried in
the divorce proceeding.
A judgment affecting the parent-child relationship is not suspended by an appeal
unless suspension is ordered by the court rendering the judgment; however, “the appellate
court, on a proper showing, may permit the judgment to be suspended.” Tex. Fam. Code
Ann. § 109.002(c); Tex. R. App. P. 24.2(a)(4). The authorization for suspension of the
judgment by the rendering court vests in that court the exercise of discretion in
determining whether the judgment should be suspended. McGee v. Ponthieu, 634
S.W.2d 780 (Tex. App.—Amarillo 1982, no writ). The same discretion may be exercised
by the appellate court upon a proper showing. The requirement of a proper showing
obligates appellant to demonstrate that the trial court clearly abused its discretion in
refusing to suspend its judgment on presentation of essentially the same matters offered
to the appellate court. Id.
The record of the hearing reflects that appellant raised no new evidence seeking
enforcement other than what was presented to the trial court during the divorce
proceeding. Appellant has not made “a proper showing” that the trial court so clearly
abused its discretion as to justify our suspension of the judgment.
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The appeal is reinstated; appellant’s motion for suspension of enforcement of the
judgment is denied. Appellant’s brief is due 30 days from the date of this order.
PER CURIAM
Panel consists of Justices Seymore, Boyce, and Jamison.
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