Mark D. Walker v. Takelya L. Walker ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARK D. WALKER, § No. 08-20-00029-CV
Appellant, § Appeal from the
v. § 426th District Court
TAKELYA L. WALKER, § of Bell County, Texas
Appellee. § (TC#294,292A)
O P I N I O N1
Appellant Mark D. Walker (Father), pro se, appeals from a Final Decree of Divorce
dissolving his marriage to Appellee Takelya L. Walker (Mother). Father’s appeal relates only to
the trial court’s orders affecting the parent-child relationship. In four issues, Father asserts the trial
court abused its discretion: (1) in denying his request to be appointed the primary joint managing
conservator of the children; or, alternatively, in failing to impose a geographical restriction on the
children’s residence, (2) in violating his parental rights in such a manner as to aid parental
alienation, (3) in determining the amount of child support arrears and interest rate applied to such
arrears, and (4) in denying other requested relief. We affirm in part and reverse and remand in part.
1
This case was transferred from the Third Judicial District of Texas, our sister court in Austin (Appellate case no.
03-20-00018-CV), and we decide it in accordance with the precedent of that court. TEX. R. APP. P. 41.3.
I. BACKGROUND
Father and Mother were married in January 2016.2 Their daughter, M.L.W., was born on
May 29, 2016. On November 23, 2016, Father filed for divorce, but the divorce was not further
pursued as the parties soon reconciled. In June 2017, Mother found out she was pregnant with their
second child. Father again filed for divorce on July 27, 2017. Although Father originally filed pro
se, he was later represented by counsel for a time. The proceedings spanned two years in the court
below. During that time, the trial court held two temporary orders hearings and a final hearing that
took place over four settings. The contested issues concerned the conservatorship of the children,
possession of and access to the children, child support, and medical support.3
In September 2017, the parties entered into a handwritten agreement titled, “Temporary
Rule ‘11’ Agreement Until Court Resumes,” due to the interruption of a temporary orders hearing.
With their second child not yet born, the agreement solely addressed rights and obligations
pertaining to their first child, M.L.W. The parties agreed each would be designated a joint
managing conservator, with the child’s domicile restricted to Bell County, Texas. The agreement
further provided that Mother had the right of possession of the child at all times not designated for
Father. Father’s possession followed the modified expanded standard possession order and, on the
second and fourth week of each month, Father also had possession of the child from Tuesday
afternoon until Wednesday morning. Both parents held a right of first refusal. The agreement
further provided that, beginning October 1, 2017, Father shall pay $1,430 a month in child support
to Mother, and each month thereafter, except he would be credited in October for $319 already
2
When Father and Mother met, Mother already had two sons from a prior marriage who are not subjects of this suit.
For their privacy, we refer to Mother’s two elder sons by their initials, D.W. and D.J.W., with D.W. being the oldest
of the two.
3
On December 14, 2018, the parties entered into a partial mediated settlement agreement concerning the property of
the marriage. All issues relating to the division of the community property were fully resolved.
2
paid for daycare. As further stated, all future child support payments would be made by Father to
his attorney who would forward each payment to Mother’s attorney.4
The parties second daughter, F.T.G.W., was born on February 19, 2018. In March 2018,
Father filed a motion for further temporary orders asserting Mother made it difficult for him to
pick up M.L.W. from daycare and requested to be appointed joint managing conservator of
F.T.G.W. In May, a hearing was held on Father’s motion and after testimony from Father and
Mother, the trial court took the decision under advisement.
In May, June, October, and December 2019, the trial court conducted an ongoing final
hearing of the parties’ contested issues. At the time of trial, Father had retired from the United
States Army with the rank of major while Mother remained in active duty with the Army ranked
as a Captain. At the hearing of May 15, 2019, the trial court heard testimony from four witnesses.
First, Dennis McAfee, a Harker Heights patrol sergeant, testified he had responded to a call where
Father had reported “his daughter was picked up at the day care . . . without his permission or
knowledge.” Second, Kandice Reyes, Mother’s Company Commander, testified to Mother’s
relocation assignments with the military. Third, Willie White, Mother’s ex-husband and the father
of her two elder children, D.W. and D.J.W., testified to concerns he had regarding Father. Finally,
Father began his testimony, but the trial court recessed before it was completed.
On June 19, 2019, the final hearing continued where Father completed his testimony and
Mother began her testimony. As the trial court recessed the hearing without completion, it ordered
Father to have possession of M.L.W. pursuant to the standard possession order—including a
summer possession for the month of July—and possession of F.T.G.W. from June 21 at 6:00 p.m.
to June 25 at 6:00 p.m. The trial court also permitted Mother to leave Bell County with the children
4
It is contested that a subsequent temporary order terminated the terms of the Agreed Temporary Orders. We address
the issue in greater detail within the third issue of this decision.
3
and relocate to Maryland.5
On October 3, 2019, the trial court continued the previous hearing. At the start, the court
permitted Father’s attorney to withdraw, and Father then continued without representation. Mother
provided further testimony until the hearing was reset for a later date. When the hearing resumed
on December 11, 2019, Mother continued and finished her testimony. The court also heard
testimony from a prior neighbor of Mother’s, Marcus Dancy, who testified to an altercation
between Father and Mother’s son. With closing arguments, Father and Mother listed their requests
to the court.
On December 31, 2019, the trial court issued and signed a “Memorandum of Decision”
which: (1) appointed the parties as joint managing conservators of both children with Mother
having the exclusive right to designate the primary residence of the children without regard to
geographic restriction; (2) ordered Father to have possession of the children in accordance with an
expanded standard possession order as long as the parties were living within 30 miles of one
another; (3) ordered Father to have possession of the children in accordance with the standard
possession order if the parties were living more than 30 miles apart; (4) ordered exchange and
travel provisions along with ordering Father to pay travel expenses; (5) ordered Father to pay
Mother child support in the amount of $1,431.80 per month beginning January 1, 2020, with a like
payment due each month thereafter; (6) confirmed Father to be in arrears in the payment of
monthly child support in the amount of $31,460 for the months of March 2018 through December
2019, entered judgment against him for said sum plus interest thereon, and ordered wage
withholding in the amount of $500 a month beginning February 1, 2020; (7) ordered Mother to
5
On July 24, 2019, a further temporary orders hearing was held, and at its conclusion, the trial court ordered Father
to return M.L.W. by August 1, 2019, by 6:00 p.m., at his expense. The trial court also ordered Father not to contact
the military regarding Mother or the children.
4
provide health and dental insurance for the children at her expense, and ordered all uninsured
expenses to be split by the parties; (8) ordered the parties to communicate regarding the children
using an application called “CloseApp”; (9) ordered Mother’s name to be changed to Takelya
Benson; and (10) awarded attorney’s fees in favor of Mother in the sum of $3,600 to be paid by
Father. Thereafter, on May 27, 2020, the trial court signed a Final Decree of Divorce, which
adopted the court’s rulings, and further provided for an interest rate of 12% per annum on the
judgment of $31,460 entered against Father for the child support arrearage.
Father filed a notice of appeal and requested findings of fact and conclusions of law. The
trial court filed findings of fact and conclusions of law on August 10, 2020. This appeal followed.
II. DISCUSSION
Father raises four issues on appeal. He first questions whether the trial court abused its
discretion by denying both his appointment as primary managing conservator and his request for
a geographic restriction on the children’s domicile. Second, he questions whether the trial court
violated his rights “to help aid parental alienation.” Third, he questions the trial court’s awarding
of a judgment against him for child support arrearage and further questions whether the court
abused its discretion in applying an interest rate to said arrearage. Lastly, Father asserts the trial
court abused its discretion in denying other requested relief.
As required, we construe Father’s brief liberally; but, in doing so, we continue to hold him
to the same standards as required of a licensed attorney—that is, to comply with applicable laws
and rules of procedure. Fox v. Wardy, 318 S.W.3d 449, 453 (Tex. App.—El Paso 2010, pet. denied)
(citing Mansfield State Bank v. Cohn, 537 S.W.2d 181, 184–85 (Tex. 1978)).
A. Standard of Review
Most appealable issues in a family law case, including property division, conservatorship,
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and child support, are reviewed under the abuse of discretion standard. Martinez Jardon v. Pfister,
593 S.W.3d 810, 819 (Tex. App.—El Paso 2019, no pet.); see also Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982) (determination of best interest of child “will be reversed only when
it appears from the record as a whole that the court has abused its discretion”); In re J.M.M., 549
S.W.3d 293, 298–99 (Tex. App.—El Paso 2018, no pet.) (order granting child support is reviewed
for abuse of discretion). An abuse of discretion occurs when the trial court “acts arbitrarily or
unreasonably, without reference to any guiding principles, or when it fails to correctly analyze the
law.” Interest of L.A.-K., 596 S.W.3d 387, 393 (Tex. App.—El Paso 2020, no pet.).
Also, in this context, we look to whether the trial court had sufficient information upon
which to exercise its discretion and whether it erred in the application of its discretion. In re M.V.,
583 S.W.3d 354, 361 (Tex. App.—El Paso 2019, no pet.). Challenges to the legal and factual
sufficiency of evidence are relevant factors in determining whether the trial court had sufficient
information upon which to exercise its discretion, rather than as independent grounds of error.
Gerges v. Gerges, 601 S.W.3d 46, 54 (Tex. App.—El Paso 2020, no pet.). Whether the trial court
had legally sufficient evidence is determined by “view[ing] the evidence in the light favorable to
the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.
2005). Whether the trial court had factually sufficient evidence is determined by considering and
weighing all the evidence and we only set aside the finding if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and manifestly unjust. Gerges, 601 S.W.3d at 54.
Because the trial court is in the best position to observe witnesses as well as their demeanor, we
defer to such courts for resolution of conflicting evidence. Id.
6
B. Primary Managing Conservatorship and Geographic Restriction
Father’s first issue essentially puts forth two complaints that we treat as individual sub-
issues. First, he asserts the trial court abused its discretion in appointing Mother as the managing
conservator with the exclusive right to designate the primary residence of the children. Second, he
asserts the trial court abused its discretion in imposing no geographic restriction on the children’s
domicile.
1. Primary Conservatorship
In a suit for conservatorship, the primary consideration of the trial court is the best interest
of the child. TEX. FAM. CODE ANN. § 153.002. The trial court may appoint either a sole managing
conservator or joint managing conservators. Id. § 153.005. The code presumes the appointment of
both parents as joint managing conservators is in the best interest of the child. Id. § 153.131(b).
When appointing joint managing conservators, the trial court must designate one party as the
conservator with the exclusive right to designate the child’s primary place of residence. Id. §
153.134(b)(1).
In reviewing issues concerning the best interest of the child, courts are often guided by the
non-exhaustive list of Holley factors, as follows:
(A) the desires of the child; (B) the emotional and physical needs of the child now
and in the future; (C) the emotional and physical danger to the child now and in the
future; (D) the parental abilities of the individuals seeking custody (E) the programs
available to assist these individuals to promote the best interest of the child; (F) the
plans for the child by these individuals or by the agency seeking custody; (G) the
stability of the home or proposed placement; (H) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is not a proper one;
and (I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
The trial court determined the issues of conservatorship and the primary residence of the
children after conducting a bench trial. The trial court appointed both parents as joint managing
7
conservators and appointed Mother as the conservator with the exclusive right to designate the
primary residence of the children, without a geographic restriction imposed.
Father’s first sub-issue of the first issue argues the trial court abused its discretion in
appointing Mother as the primary conservator of the children. Specifically, Father argues there is
evidence of Mother’s “pattern of domestic violence, perjury, false reporting (repeatedly), parental
alienation, withholding evidence, and contempt of Court.” He also asserts Mother acted
“maliciously” towards him in regard to communicating with him about the children. Father argues
the trial court failed to consider all evidence in its ruling and therefore erred in denying his request
to be named primary managing conservator.
In opposing, Mother argues the evidence at trial was legally and factually sufficient to
reasonably conclude it was in the children’s best interest that Mother be given the exclusive right
to determine the children’s primary residence.
a. Evidence Father Claims was not Considered
In briefing, Father first asserts that evidence was presented that established Mother
committed acts of domestic violence against Father. Father asserts Mother “struck [Father] with a
close-hand fist across the face while holding the oldest child,” and did so in front of Mother’s two
older children. We construe Father’s briefing as contending the trial court failed to consider
evidence of this alleged incident.
During the final hearing, Father testified the first incident of physical abuse occurred in
November 2016 when Mother hit him. He acknowledged he did not take any photographs or
document any injuries. Father also entered into evidence a transcript from a temporary orders
hearing in January 2017—during the first filed divorce—claiming it included evidence of physical
abuse. The transcript shows Father testified that “family violence by her hands on [him],” had
8
occurred but he did not otherwise elaborate or provide further details. At the same hearing, Mother
responded to the alleged incident characterizing her actions differently. She testified she did not
strike Father but instead made incidental contact when she reached for their daughter, M.L.W.,
from his lap. Mother described that Father grabbed M.L.W.’s leg when Mother attempted to pick
her up, Mother let go, and her “hand . . . grazed his arm.”
Father also argues that Mother conceded he had been the victim of physical abuse and
Mother had perjured herself when she testified M.L.W. was not present but her two older sons
were when abuse occurred. 6 Our review of the record, however, does not show that Father
presented testimony as argued. During the hearing at issue, Father (representing himself) asked
Mother not whether she had committed physical abuse against him but whether she was questioned
by him about having committed physical abuse towards him. To the question she was asked,
Mother responded, “yes.” Father next asked whether he was the victim of the “allegation” and
Mother responded “yes.” Father also asked whether he was holding M.L.W. during the altercation.
Mother responded “no.” When asked whether her sons were present, she responded “yes.” On
review, the evidence showed the testimony of the incident was equivocal. The trial court was best
able to resolve such conflicting testimony in favor of the judgment. City of Keller, 168 S.W.3d at
820; Wheeling v. Wheeling, 546 S.W.3d 216, 223 (Tex. App.—El Paso 2017, no pet.).
Father next points to police records to show he contacted police to report abuse by Mother;
and Mother “attempted to file” an assault allegation against him. At trial, Mother offered police
records into evidence to show she had been harassed by Father by him making repeated and
6
In a civil proceeding, allegations of perjury are not properly before a trial court but must take place within the context
of a criminal proceeding. Draper v. Guernsey, No. 03-16-00745-CV, 2017 WL 2224540, at *4 (Tex. App.—Austin
May 18, 2017, pet. denied) (mem. op.) If anything, such a complaint asserting a party has committed perjury at trial
may be construed on appeal as urging the testimony at issue should be disregarded. See, e.g., In re B.C.S., No. 10-06-
00408-CV, 2007 WL 2005050, at *1 (Tex. App.—Waco July 11, 2007, no pet.) (mem. op.).
9
unnecessary calls to police without cause. The record does not show that Father testified or
presented the argument to the trial court that he makes to this Court. The police report Father points
to shows the “nature of incident” was listed as “assault/sexual assault” but no additional comments
or details were taken. During the final hearing, Mother denied having filed an assault report against
Father.
Father also refers to testimony by Father’s previous company commander and a C.P.S.
investigator to show a C.P.S. investigation was “ruled out.” However, the testimony father points
to on appeal was presented at a temporary orders hearing held on September 19, 2017, not during
the final hearing. Testimony from a temporary orders hearing is not before us and cannot be
considered on review of the trial court’s final order. See Moreno v. Perez, 363 S.W.3d 725, 735–
36 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Lastly, Father’s brief also asserts there was family violence committed against him by
Mother’s eldest son, D.W. Father alleges D.W. “physically assaulted” him and Mother was
“unable to get control of her son.” At trial, Father testified that on May 9, 2018, D.W., who was
then seventeen years old, shoved Father with his shoulder and left hand while M.L.W. was in
Father’s arms. Father testified he felt threatened at the time, stood his ground, set down his
daughter, and asked Mother to intervene. Mother testified Father had arrived at her residence to
pick up F.T.G.W. While recording, D.W. followed her outside because he was not comfortable
with Father being around Mother. Mother testified she only heard Father tell her that D.W. had
pushed Father but did not see anything. Mother did state the argument between D.W. and Father
began when Father threatened to strike D.W.
In addition to the parties, Willie J. White, Jr., D.W.’s biological father, also provided
testimony about the incident. White testified he saw a video that caused him concern regarding
10
Father. Due to his concern, he sent the video to C.P.S. to initiate an investigation on Father. 7
Mother’s neighbor, Marcus Dancy, also testified that he witnessed part of the incident. Dancy
testified that he was in his home when D.J.W. rang the doorbell and asked him to call the police.
Dancy could hear yelling and saw Mother, Father, and D.W. in a heated argument. He feared
Mother and D.W.’s lives were in danger and intervened. When he asked what was going on, Father
stated D.W. had put his hands on him, but Dancy stated he saw “no physical scars” on him. After
the incident was reported to C.P.S., the department returned an initial finding of reason to believe
negligent supervision by Father. After Father appealed the decision, however, the finding was
reversed to “ruled out.”
From our review of the record, Father fails to develop any substantive argument or provide
specific authority demonstrating how the trial court abused its discretion in failing to consider all
evidence presented. Father simply cites to section 153.013 of the Texas Family Code, which states:
“[i]f a party to a pending suit affecting the parent-child relationship makes a report alleging child
abuse by another party to the suit that the reporting party knows lacks a factual foundation, the
court shall deem the report to be a knowingly false report” and “[e]vidence of a false report of
child abuse is admissible in a suit between the involved parties regarding the terms of
conservatorship of a child.” TEX. FAM. CODE ANN. § 153.013. We note that Father never pleaded
false allegations or reporting in any of his pleadings as a basis for appointing him as the primary
conservator of the children.
On review, we must presume the trial court resolved conflicting evidence in favor of the
prevailing party and discredited all conflicting evidence. City of Keller, 168 S.W.3d at 820–21.
7
Father complains that White’s testimony was based on “hearsay” because he was not physically present. However,
Father’s complaint on appeal is not preserved as no objection was lodged at trial at the time of White’s testimony and,
thus, it cannot be raised for the first time on appeal. TEX. R. APP. P. 33.1(a)(1).
11
Without more presented by Father, we cannot say the trial court did not consider all the evidence,
but instead, made credibility determinations and inferences in favor of the judgment. Id. at 819.
b. Other Evidence
We further note that Father ignores or fails to account for additional evidence the trial court
could have considered in making its determination. First, Father admitted to having been banned
from the daycare at Fort Hood where the parties’ two children were enrolled because of his
“disturbing behavior.” Additionally, Mother testified she felt constantly harassed by Father.
Mother also testified Father had requested Mother terminate her pregnancy when she was pregnant
with M.L.W. because “it was not good timing” for their careers. Father denied he had made the
request but testified they mutually decided to go through with her pregnancy. Mother also testified
Father had repeated the same request when she was pregnant with F.T.G.W. because “who would
want to bring a child into a marriage that’s in shambles.” Father also denied making this request.
Mother also testified Father denied paternity of F.T.G.W. until a paternity test was completed.
Most notably, Mother testified she had been the primary caregiver of M.L.W. and F.T.G.W.
for the entirety of their lives. When M.L.W. was born, she lived with Mother who was stationed
in Oklahoma before moving to Killeen, Texas. Father was then stationed and living in Kansas.
Mother and Father visited each other on holiday weekends but otherwise lived apart. Father did
not physically move in with Mother and M.L.W. until May 2017. Father lived with Mother and
M.L.W. for only about six weeks before he then filed his second petition for divorce in July 2017.
Father followed a “3/2/2” schedule with M.L.W. but had inconsistent visitation with
F.T.G.W. Father testified his visitation with F.T.G.W. would be at the convenience of Mother.
There were some instances where Father would have F.T.G.W. for two hours, four hours, or
sometimes supervised. Father testified he and Mother had discussions about getting F.T.G.W.’s
12
ears pierced at the mall and Mother cancelled on four occasions. In September 2018, Father
proceeded to have F.T.G.W.’s ears pierced when Mother did not show up to the mall. Father
testified he had not had visitation with F.T.G.W. since this incident.
In addition to Mother being the primary caregiver of the children, Father testified that
Mother was a “good mother,” and her home was an acceptable home for the children. Father did
not present any evidence that Mother abused or neglected any of her children. Neither did he
present evidence that Mother abused alcohol or drugs. Father did allude to Mother having a
“temper” but provided no evidence supporting his assertion. In support of his request to be named
the primary conservator, Father testified he was the “better choice” because he had a more flexible
work schedule than Mother and that his cousin lived nearby who would help with childcare.
Considering all evidence in its totality, we cannot say the trial court abused its discretion
in deciding it was in the children’s best interest to grant Mother the exclusive right to designate
the primary residence of the children, as the trial court was in the best position to observe the
parties and witnesses. Interest of L.A.-K., 596 S.W.3d at 400; see also In re T.M.P., 417 S.W.3d
557, 566 (Tex. App.—El Paso 2013, no pet.) (“The trial court was in the best position to observe
the demeanor and personalities of the witnesses and could feel the forces, powers, and influences
that cannot be discerned by merely reading the record.”). Because the trial court’s decision is
supported by evidence of a substantive and probative character, we cannot say the court abused its
discretion. See Interest of L.A.-K., 596 S.W.3d at 400.
Father’s first sub-issue of the first issue is overruled.
2. Geographic Restriction
In his second sub-issue of the first issue, Father argues the trial court erred in awarding
Mother the exclusive right to designate the children’s primary residence without restriction on
13
geographic location. Father complains the trial court based its ruling solely on Mother receiving
military orders to relocate. Father asserts Mother did not provide reasons related to the best interest
of the children in support of her request to relocate out of state.
In designating a primary conservator, the trial court must also “establish . . . a geographic
area within which the conservator shall maintain the child’s primary residence” or “specify that
the conservator may determine the child’s primary residence without regard to geographic
location.” TEX. FAM. CODE ANN. § 153.134(b)(1). Although the trial court has wide latitude in
determining what is in the best interest of a child, the Family Code is silent as to specific factors
in determining whether a geographic restriction on residency is in the best interest of a child.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Yasin v. Yasin, No. 03-10-00774-CV,
2011 WL 5009895, at *3 (Tex. App.—Austin Oct. 21, 2011, no pet.) (mem. op.). The public policy
of Texas is to “assure that children will have frequent and continuing contact with parents who
have shown the ability to act in” the child’s best interest; to “provide a safe, stable, and nonviolent
environment” for the children; and to “encourage parents to share in the rights and duties of raising
their child” after dissolution of their marriage. See TEX. FAM. CODE ANN. § 153.001(a)(1)-(3). The
Texas Supreme Court has provided guidance in applying the state’s best interest standard in
determining whether a domicile restriction is in the best interest of the child including: “(1) reasons
for and against the move, (2) education, health, and leisure opportunities afforded by the move,
(3) accommodation of the child’s special needs or talents, (4) effect of extended family
relationships, (5) effect on visitation and communication with the noncustodial parent, (6)
noncustodial parent’s ability to relocate, and (7) the child’s age.” In re K.L.W., 301 S.W.3d 423,
425–26 (Tex. App.—Dallas 2009, no pet.) (citing Lenz v. Lenz, 79 S.W.3d 10, 15–17 (Tex. 2002)).
Courts may also consider the general Holley factors relevant to the best interest of the child
14
determination. In re K.L.W., 301 S.W.3d at 426 (citing Holley, 544 S.W.2d at 371–72)).
Nearing the end of the second hearing set on the parties’ final hearing, Mother made a
motion for temporary orders requesting permission to move with the children to Maryland, due to
a change in her duty station. Father responded without objection or argument but merely requested
visitation and access to F.T.G.W. The trial court orally rendered an interim order awarding Father
a standard possession order with M.L.W., and a visitation schedule for F.T.G.W., with both
provisions addressing the remainder of the summer. The trial court’s order also lifted the
geographic restriction on the children’s residence thereby permitting Mother to leave Bell County.
Father’s main assertion on appeal contests the trial court’s award of temporary orders at
the end of one of the hearings. Father asserts Mother failed to file a motion and he had no
knowledge of her request to relocate before it was made in court. Father argues the trial court
imposed no geographic restriction “solely due to [Mother] alleging that she recently received
‘military’ orders to relocate,” and not based on the best interest of the children. Father lodged no
objection at the hearing and only requested access to his younger daughter, which he was awarded.
Father’s brief fails to assert a clear argument as to how the trial court abused its discretion in not
imposing a geographic restriction and does not guide us to any authority to support his complaint.
TEX. R. APP. P. 38.1(i).
Even so, we find there was sufficient evidence to support the trial court’s decision
permitting relocation without imposing a geographic restriction on the primary residence of the
children. In addition to hearing evidence that Mother had acted as primary caretaker of the children
since their birth, the trial court also heard evidence that her relocation was required to further her
career with the military. Both Mother and Father were members of the military, and both had
moved multiple times in the past for their employment. Mother testified it was necessary for her
15
to accept relocation orders to continue her employment. Kandice Delora Reyes, Mother’s company
commander, also testified that a service member could not refuse a move to a new duty station
when so ordered. A parent’s need to secure employment or pursue educational or career
opportunities is relevant for the trial court to consider in exercising its discretion regarding
geographical restrictions. Lenz, 79 S.W.3d at 16.
No evidence was presented showing the children would be harmed by the requested
relocation. Father testified his cousin and sister lived near Bell County, but there was no evidence
presented establishing that the children had developed a close relationship with Father’s relatives.
Father presented no evidence showing how a geographic restriction to Bell County would serve
the children’s best interest. Lastly, at trial, Father only requested the children’s residence be
restricted to the United States.
The trial court could reasonably conclude that permitting Mother to designate the
children’s residence without regard to geographic restriction was in the children’s best interest.
Lenz, 79 S.W.3d at 16; Interest of K.L.W., 301 S.W.3d at 428. We conclude there was sufficient
evidence to support the trial court’s finding.
We overrule Father’s second sub-issue of his first issue. Having overruled both sub-issues,
we overrule Father’s first issue in its entirety.
C. Alienation of Parental Rights
Father’s second issue asserts the trial court erred and abused its discretion or otherwise
“violated [his] parental rights to help aid parental alienation.” Father does not set forth any
argument supported by authority to establish how the trial court erred. Instead, Father recites
instances where he believes his parental rights were violated.
An appellant’s complaint “must address specific errors and not merely attack the trial
16
court’s order in general terms.” Woodside v. Woodside, 154 S.W.3d 688, 690 (Tex. App.—El Paso
2004, no pet.). An appellant’s brief must also contain clear and concise argument with citations to
authorities. TEX. R. APP. P 38.1(i). Even after construing Father’s brief liberally, we conclude
Father failed to present a cognizable issue for our review.
We overrule Father’s second issue.
D. The Child Support Arrearage and Interest Rate
Father’s third issue asserts the trial court erred in awarding judgment against him for a
child support arrearage in the amount of $31,460. Father also asserts the trial court erred in setting
the interest rate on the judgment after issuance of the final ruling.
1. Amount of the Child Support Arrearage
Father’s first sub-issue of the third issue contends the trial court lacked sufficient evidence,
and abused its discretion, in determining the amount of child support arrears, which it ordered
against him, in the amount of $31,460, for the period of March 2018 through December 2019.
Specifically, Father asserts (1) a prior agreed support determination was terminated by the court,
(2) the court should have credited his payments for M.L.W.’s daycare expenses and other support
provided in the form of packages, (3) the trial court should have credited his military basic housing
allowance as child support, and (4) the trial court did not allow him to respond to Mother’s closing
arguments nor allow him to submit certain evidence.
The parties entered agreed temporary orders through a Rule 11 agreement in September
2017, where it was agreed that Father would pay child support to Mother in the amount of $1,430
per month beginning October 1, 2017. The monthly payment would be made to his attorney who
would then forward it to Mother’s attorney. The Rule 11 agreement, which was filed, was signed
by the parties, their attorneys, and the trial court. At trial, Mother testified Father initially paid
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$1,430 each month through February 2018, but no payments thereafter. Father does not contend
he made any additional payments of $1,430 beyond those identified by Mother. Instead, Father
raises two grounds of complaint. First, he asserts he provided support in other ways. Second, he
asserts the Rule 11 agreement was terminated on February 7, 2018, by a subsequent order that
ordered no payment of child support by either party, and such order remained in effect through
June 19, 2019. Father points to the trial court’s docket sheet in the clerk’s record which does show
an entry dated February 7, 2018, stating “no present CS from either to either.” Father asserts the
trial court abused its discretion when its findings were contradictory to prior temporary orders and
to the parties’ testimony during trial. Father also asserts the trial court erred in not giving effect to
court orders purportedly on file.
Pursuant to Rule 11 of the Texas Rules of Civil Procedure, an agreement between parties
touching a pending suit will be enforced when in writing, signed, and filed as part of the record.
See TEX. R. CIV. P. 11. Of note, a party reserves the right to revoke its consent to a Rule 11
agreement at any time before the rendition of judgment by effectively communicating withdrawal
of consent to the trial court. In re Caballero, 441 S.W.3d 562, 573 (Tex. App.—El Paso 2014, no
pet.). Here, Father does not assert he revoked his consent to the Rule 11 agreement, nor is there
evidence of record establishing that Father took steps to withdraw his consent at any point during
the pendency of the proceeding.
Rather, Father asserts a subsequent order terminated the agreed order of September 2017.
Despite Father’s argument, our record lacks any subsequent order purportedly arising from a
hearing held on February 7, 2018, and no transcript otherwise shows rendition of a ruling. We do
acknowledge the existence of the docket-sheet pointed out by Father, but the record further shows
that such evidence was not offered into evidence during the subsequent trial of the issue. Even so,
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a docket-sheet entry does not form a part of the record that may be considered on appeal, but
instead, is a memorandum made for the trial court and clerk’s convenience. Barnes v. Deadrick,
464 S.W.3d 48, 53 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing In re Bill Heard
Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist] 2006) (orig. proceeding)).
Due to its lack of reliability, a docket-sheet entry is generally considered insufficient to constitute
a judgment or decree of the court. Id. For this reason, a docket-sheet entry cannot contradict,
overrule, or take the place of a written order or judgment. Kalyanaram v. Burck, 225 S.W.3d 291,
303 (Tex. App.—El Paso 2006, no pet.).
We further note from our record that, during the second setting of the final hearing, Father’s
counsel advised the transferee court that “we had a hearing[,] and we never got a ruling from Judge
Gauntt.” Therefore, without a showing of the trial court rendering a subsequent order that would
supersede the agreed order, we cannot find that the trial court lacked sufficient evidence or
otherwise abused its discretion in awarding child support arrears based on the agreed order. Father
agreed he would pay a monthly amount of $1,430 to Mother, as agreed child support, beginning
October 1, 2017, and each month thereafter. The record established that no payments were made
from March 2018 through December 2019, a period of twenty-two months. Multiplying those
months by the agreed monthly amount of $1,430 equals the trial court’s arrearage award of
$31,460. It follows that the trial court had sufficient evidence upon which to base its ruling and
did so reasonably. See TEX. FAM. CODE ANN. § 154.124(b) (“If the court finds that the agreement
is in the child’s best interest, the court shall render an order in accordance with the agreement.”).
Father’s remaining arguments assert the trial court failed to give him credit for actual
support in its calculation of the amount of child support arrearage. In its findings of fact and
conclusions of law, the trial court awarded child support arrearage in the amount of $31,460 for
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the period of March 2018 through December 2019, and that such award was in the children’s best
interest. Father asserts the trial court failed to apply certain credits against the award for support
he provided from the beginning of the proceedings. The trial court can award certain offsets and
credits but has no discretion to forgive or decrease a past child-support obligation. In re A.L.S.,
338 S.W.3d 59, 65–66 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). The trial court’s child
support calculations must be based on the payment evidence presented, not on the trial court’s own
assessment of what is fair and reasonable. Id. at 66.
Father asserts that Mother received his military basic allowance for housing (BAH) from
March 2018 through December 2019, totaling $9,423. He also argues he paid “100 percent of
childcare expenses” from March 2018 through July 2019, totaling $9,810. Lastly, Father argues
he provided “support items” totaling $15,828.37, for the time between March 2018 and December
2019, and shipping costs of items totaling $1,058.88, incurred between September 2018 through
December 2019. The evidence Father points to and relies on for his credits were not offered into
evidence during trial. Father’s brief cites to multiple exhibits attached to motions filed after entry
of the final decree. None of the exhibits, however, were ever admitted into evidence or considered
by the court. Because such evidence was not presented to the trial court, the records may not be
considered on appeal. Interest of S.W., 614 S.W.3d 311, 315 (Tex. App.—Fort Worth 2020, no
pet.).
Father argues that he had provided financial support for the children following his filing of
a petition for divorce. But Father acknowledges he did not make any monthly payments of $1,430
to Mother after February 2018. Regarding F.T.G.W., Father testified he would provide whatever
essentials she needed and other “support items.” Father did introduce a transaction history and
receipts showing shipping costs and purchases from different stores. The exhibits consisted of
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nearly forty pages which were simply offered and admitted into evidence. No testimony was
elicited from Mother or presented by Father to show the exhibits demonstrated his payment of
monthly child support in the agreed amount of $1,430. Father failed to provide sufficient payment
evidence for a credit or offset for any of the missed payments after February 2018. See In re A.L.S.,
338 S.W.3d at 66 (finding no abuse of discretion where some evidence supported the amount of
confirmed arrearages when there was conflicting child-support payment evidence). Based on this
record, we cannot say the trial court abused its discretion by not awarding credits and offsets to
the arrearage calculation.
Lastly, Father asserts the trial court denied him a final rebuttal argument during closing
arguments, as well as an opportunity to submit child support evidence in response to Mother’s
closing argument. At the conclusion of trial, the trial court gave both Father and Mother an
opportunity to present a closing argument. The trial court gave each side three minutes for closing
argument; if more time was desired, the court would permit either to submit further information.
Father presents no authority or clear argument to show how the trial court erred in not giving him
the opportunity to present a rebuttal response.
Father has failed to show the trial court abused its discretion in its judgment. Accordingly,
we overrule sub-issue one of the third issue.
2. Interest Rate
We next consider the interest rate applied to the child support arrearage entered in the Final
Decree of Divorce. Father complains the interest rate assessed against the judgment amounts to an
abuse of discretion.
The Texas Family Code establishes that interest accrues on a money judgment for
retroactive or lump-sum child support at the annual rate of 6% simple interest from the date the
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order is rendered until the judgment is paid. TEX. FAM. CODE ANN. § 157.265(c). Here, the trial
court instead applied a rate of 12% per year. Mother readily concedes the interest rate imposed
should be 6%, not 12%, and the Final Decree of Divorce should be amended accordingly. We
agree the interest rate should have been set at 6% per annum. Id.; see also In Interest of J.R.G.,
499 S.W.3d 922, 929 (Tex. App.—El Paso 2016, no pet.) (finding the trial court was incorrect in
the percentage applied to the confirmed arrearage and remanded the case to the trial court); In
Interest of S.H., No. 05-17-00336-CV, 2018 WL 3751297, at *5 (Tex. App.—Dallas Aug. 8, 2018,
no pet.) (mem. op.) (remanding the case to the trial court to recalculate the proper interest rate
applied to child support arrearage).
We overrule in part and sustain in part Father’s third issue. The first sub-issue of Father’s
third issue is overruled. We sustain his second sub-issue as to the interest rate applied to the
judgment for child support arrearage.
E. Other Requested Relief
Father’s fourth and final issue asserts the trial court abused its discretion in denying his
other requested relief. Father asserts he believes such requests would “aid in maintaining a
consistent, healthy and prosperous relationship with the children.” Responding, Mother contends
Father’s fourth issue should be overruled as multifarious and inadequately briefed.
Appellate courts may disregard points of error that are multifarious. Quiroz v. Gray, 441
S.W.3d 588, 591 (Tex. App.—El Paso 2014, no pet.). Multifarious issues bring forth combined
complaints based on more than one legal theory within a single issue. Id. We may consider
multifarious issues when we can determine, with reasonable certainty, the alleged error about
which the complaint is made. Id.Here, Father lists seven different requests not granted by the trial court. Although Father
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does assert specific complaints as to the requested relief, he otherwise fails to assert a specific
complaint as to what error the trial court made in denying such relief. Woodside, 154 S.W.3d at
690. Father fails to guide us to any authority to show the trial court abused its discretion. TEX. R.
APP. P 38.1(i). Without such guidance or assignment of error, we find there is no error for us to
review.
Father’s fourth issue is overruled.
III. CONCLUSION
In conclusion, we overrule Father’s first, second, and fourth issues. As to Father’s third
issue, we overrule in part and sustain in part. Having reached such conclusions, we affirm in part
and reverse and remand in part the trial court’s order. We affirm the trial court’s order on all issues
not related to the interest rate set on the judgment against Father for child support arrearage owed
to Mother. As to that remaining part, we reverse the trial court’s order that 12% interest accrued
on the judgment for child support arrearage. As to this part of the order, we remand the cause to
the trial court for consideration of the amount of interest to be included in the judgment consistent
with the terms of this decision.
GINA M. PALAFOX, Justice
December 29, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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