in the Interest of D.F.D. and T.Z.D., Children ( 2022 )

Affirm and Opinion Filed July 19, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00428-CV
IN THE INTEREST OF D.F.D. AND T.Z.D., CHILDREN
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-18-19199
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Reichek
Opinion by Justice Osborne
Appellant Father and appellee Mother are the parents of D.F.D. and T.Z.D.
Father and Mother were married in 2016 and divorced in 2019. By order dated March
12, 2020, the trial court granted Mother’s motion for enforcement of Father’s child
support obligation included in the parties’ divorce decree. The trial court also found
Father in criminal and civil contempt and assessed a fine and confinement in county
jail. Father appeals, alleging in six issues that the trial court lacked jurisdiction and
abused its discretion. We affirm the trial court’s order.
BACKGROUND
Under the parties’ final divorce decree, the trial court ordered Father to pay
child support commencing on September 1, 2019. In relevant part, the decree
requires Father to pay $1,055.61 per month to Mother for the support of D.F.D. and
T.Z.D., due on the first day of each month. The decree also requires Father to pay
Mother $165.49 each month as additional child support for reimbursement of health
insurance premiums.
On January 8, 2020, Mother filed a motion for enforcement of the child
support order, alleging that after an initial, partial payment of $621.28, Father failed
to pay any amounts due under the decree. On the same day, the trial court signed an
order for Father to appear and respond to the motion at a hearing on February 6,
2020 at 9:00 a.m.
When Father did not appear at the February 6 hearing, the trial court signed
an order for capias and setting bond. Father appeared before the court on February
17, 2020, and was ordered to return for a hearing on Mother’s motion on March 12,
2020. Father complied, and the trial court heard Mother’s motion on March 12, 2020.
The trial court granted Mother’s motion by order of the same date. This appeal
followed. Father, Mother, and the Office of the Attorney General of Texas (“OAG”)
have filed briefs.
ISSUES
Appearing pro se, Father asserts six issues. We quote the issues as stated in
Father’s brief:
ISSUE 1: The lower trial court abused its discretion of TEX. R. CIV. P.
18a.
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ISSUE 2: Father did not waive his personal jurisdiction issue when he
was forced by threat to make an appearance against his will in the case.
ISSUE 3: The Attorney General of Texas response letter to the Hon.
James White and the Department of Justice letter is contrary to his
actions and the actions of the title IV agency.
ISSUE 4: The Appellee and the Court failed to prove its
jurisdiction/authority and failed to state a claim. The appellee[e] claims
to be an interested party because the “Mother” signed over her rights.
ISSUE 5: The arguments inside the scope of the court reporter’s
record/transcript and the production of the court reporter’s transcript
presented by Glinda Finkely [Court] Reporter’s errors and Intentional
fraud/forgery (March 12, 2020) under the direction of Judge David A.
Lopez.
ISSUE 6: The Appellee’s arguments are vague and non specific to case
law presented as they don’t apply the “Father.”
DISCUSSION
We first address Father’s contention that because he is representing himself
pro se, his “pleadings are not to be held to the same high standards of perfection as
practicing lawyers.” Appellate procedure rule 38.9 provides that briefing rules must
be “construed liberally.” TEX. R. APP. P. 38.9; Amrhein v. Bollinger, 593 S.W.3d
398, 401 (Tex. App.—Dallas 2019, no pet.).
But “[t]he right of self-representation (or being what is commonly called a pro
se litigant) carries with it the responsibility to adhere to our rules of evidence and
procedure, including our appellate rules of procedure if the party chooses to
represent himself at the appeal level.” Bolling v. Farmers Branch Indep. Sch. Dist.,
315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). As we explained in
Amrhein, “[w]e may not apply different standards for litigants appearing without
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advice of counsel.” Amrhein, 593 S.W.3d at 401. “Otherwise, pro se litigants would
be afforded an unfair advantage over those represented by counsel.” Id.
Consequently, Father “must properly present [his] case according to the rules of
appellate procedure,” id., and we construe his brief accordingly.
1. Recusal
Father first complains that the trial court failed to comply with civil procedure
rule 18a in response to the recusal motion Father filed on March 11, 2020, the day
before the scheduled hearing. As “grounds for recusal and disqualification,” Father
cited the trial court’s failure to “file its Foreign registration statements, Anti-bribery
statements and Oath of Office with the district clerks, OAG, and Secretary of State,”
and included more than twenty pages of argument which, even generously
construed, failed to identify any of the grounds for recusal under civil procedure rule
18b. See TEX. R. CIV. P. 18a(a)(2) (motion for recusal must assert one or more of
grounds listed in rule 18b); 18b(b) (listing grounds for recusal).
Mother and the OAG respond that Father’s motion was not timely under rule
18a(b)(1). See TEX. R. CIV. P. 18a(b) (time for filing motion to recuse). Father replies
that even if his motion was untimely under rule 18a(b)(1), rule 18a(f) required the
trial judge to respond within three business days. See TEX. R. CIV. P. 18a(f) (duties
of respondent judge).
The record reflects, however, that the motion to recuse was Father’s third in
this case, a “tertiary recusal motion” under civil practice and remedies code section
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30.016. TEX. CIV. PRAC. & REM. CODE § 30.016(a) (“tertiary recusal motion” means
“a third or subsequent motion for recusal . . . filed against a district court or statutory
county court judge by the same party in a case”). Section 30.016(b) provides that the
trial judge “shall continue” to preside over the case, sign orders in the case, and
“move the case to final disposition as though a tertiary recusal motion had not been
filed.” TEX. CIV. PRAC. & REM. CODE § 30.016(b); Gonzalez v. Guilbot, 315 S.W.3d
533, 539–40 (Tex. 2010). Accordingly, despite Father’s motion, the trial judge
retained authority to act. See Gonzalez, 315 S.W.3d at 541. The denial of a tertiary
recusal motion is only reviewable on appeal from final judgment. TEX. CIV. PRAC.
& REM. CODE § 30.016(d).
We review the denial of a motion to recuse for abuse of discretion. TEX. R.
CIV. P. 18a(j)(1)(A); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas
2017, no pet.). “The movant bears the burden of proving recusal is warranted, and
the burden is met only through a showing of bias or impartiality to such an extent
that the movant was deprived of a fair trial.” Drake, 529 S.W.3d at 528. Rule 18b
provides in part that a judge must recuse in any proceeding in which (1) “the judge’s
impartiality might reasonably be questioned,” (2) “the judge has a personal bias or
prejudice concerning the subject matter or a party,” (3) the judge “has personal
knowledge of disputed evidentiary facts concerning the proceeding,” or (4) the judge
knows he has an “interest that could be substantially affected by the outcome of the
proceeding.” TEX. R. CIV. P. 18b(b)(1), (2), (3), (6). A motion “must not be based
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solely on the judge’s rulings in the case.” TEX. R. CIV. P. 18a(a)(3). The remedy for
unfair rulings is to assign error regarding the adverse rulings. Drake, 529 S.W.3d at
528.
As noted above, Father’s motion does not cite any of the rule 18b grounds for
recusal. Instead, in addition to challenging the trial judge’s failure to file “Foreign
registration statements” and other documents, Father asserts several arguments
regarding the trial court’s authority to act under the United States Constitution and
complains about lack of due process in this case. Because Father did not establish
any grounds for recusal, the trial court did not err by continuing to preside over the
case.1 We decide Father’s first issue against him. See id. at 529.
2. Personal jurisdiction
In his second issue, Father contends he “did not waive his personal jurisdiction
issue when he was forced by threat to make an appearance against his will in the
case.” He argues that the trial court’s issuance of a capias warrant for his arrest
violated the United States Constitution, and he contends he “never gave up personal
1
We note that even in the case of a tertiary recusal motion, where the trial court “shall continue” to
preside over the case, sign orders in the case, and move the case to final disposition as though the motion
had not been filed, the trial court is otherwise required to “comply with applicable rules of procedure for
recusal.” TEX. CIV. PRAC. & REM. CODE § 30.016(b). Under rule 18a(f)(1), if the trial court does not sign
and file an order of recusal, it must sign and file an order referring the motion to the regional presiding
judge. TEX. R. CIV. P. 18a(f)(1). Here, however, the record reflects that the motion was filed in the late
afternoon on the day before the hearing and was not mentioned or brought to the trial court’s attention at
the hearing. Nor did Father notify the regional presiding judge, as rule 18a(f)(3) permits. TEX. R. CIV. P.
18a(f)(3). On this record, where Father did not establish any grounds for recusal and did not bring the matter
to the trial court’s attention, we conclude Father did not preserve his complaint and any error did not
“probably cause[ ] the rendition of an improper judgment.” See TEX. R. APP. P. 44.1, 33.1.
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jurisdiction willingly” and “was held captive.” The OAG responds to Father’s
arguments regarding the capias, and Mother responds to Father’s arguments
regarding personal jurisdiction.
The OAG argues that the capias was issued in accordance with the family
code. See TEX. FAM. CODE § 157.066 (trial court may issue capias for arrest on
proper proof if respondent has been personally served but fails to appear). The trial
court signed an order for capias on February 6, 2020. The order recites that Father
did not appear at a hearing on Mother’s motion for enforcement on that date. The
court found that the matter was “duly and properly set for hearing,” and that Father
failed to appear after being “personally served with timely notice and an order to
appear.” The court ordered the clerk to issue a writ of capias “commanding th[e]
sheriff or peace officer to take the body of [Father] and bring him before this Court
to answer the allegations” of Mother’s motion. Father subsequently appeared before
the court, was ordered to return for the March 12, 2020 hearing, and attended and
participated in that hearing. Father complains only generally of being “forced by
threat” to appear. He does not complain of any specific violation of the family code’s
procedures, and the record does not reflect any. See TEX. FAM. CODE §§ 157.061–
157.115 (procedures for setting hearing on motion to enforce and failure to appear).
Mother argues the trial court had personal jurisdiction over Father. She argues
that Father was a party to the final decree of divorce rendered in the 303rd Judicial
District Court of Dallas County. The decree included an order for Father to pay child
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support. That court retained continuing exclusive jurisdiction of the children the
subject of the suit and matters affecting them under family code Title 5, which
includes child support. TEX. FAM. CODE ANN. §§ 155.001(a), 155.002, 155.003.
After the decree was signed, the case was transferred to the 256th Judicial District
Court of Dallas County. That court became “the court of continuing, exclusive
jurisdiction and all proceedings in the suit are continued as if it were brought there
originally.” TEX. FAM. CODE § 155.206(a) (Effect of Transfer). Consequently,
Mother’s motion for enforcement was filed in the court of continuing exclusive
jurisdiction over Father’s obligation to support D.F.D. and T.Z.D. Id.
We conclude the trial court had personal jurisdiction over Father. We decide
Father’s second issue against him.
3. Attorney general letter
Father’s third issue is a complaint that the OAG in this case has acted contrary
to a 2019 opinion letter issued by the Attorney General of Texas. See TEX. ATT’Y
GEN. OP. No. KP-0241 (2019) (regarding “standards courts apply when balancing
the rights of the State against the fundamental rights of parents to raise their children
free from government intrusion”).2 Father neither identifies an error made by the
trial court nor explains how he preserved his complaint about the error for appeal.
2
We note that the letter does not address child support.
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See TEX. R. APP. P. 33.1 (preservation of complaint for appeal). We decide Father’s
third issue against him.
4. Attorney General as party
In his fourth issue, Father complains of the OAG’s participation in this matter
without showing its authority under civil procedure rule 12. See TEX. R. CIV. P. 12
(Attorney to Show Authority). He also contends that because he has no “legal
contract” with either the OAG or Mother’s attorney, there is no basis for the trial
court’s award of attorney’s fees against him. As Mother argues, however, these
issues are addressed in the family code and are well-settled. See, e.g., TEX. FAM.
CODE §§ 157.167 (on finding that respondent has failed to make child support
payments, trial court shall order respondent to pay attorney’s fees in addition to
arrearages); 231.101 (Title IV-D agency [the OAG] may provide services including
enforcement of child support orders); 234.001 (OAG shall establish and operate state
case registry and state disbursement unit for child support). We decide Father’s
fourth issue against him.
5. Errors in reporter’s record
In his fifth issue, Father argues the court reporter’s record of the March 12,
2020 hearing contains “errors and Intentional fraud/forgery.” His complaints,
extending to more than fifty pages of his brief, fall into two categories:
(1) typographical errors or other non-substantive complaints, such as the incorrect
transcription of “imprisoned” as “in prison” and notations that witnesses were
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“sworn” instead of transcribing the actual oath given; and (2) substantive complaints
such as the failure of the trial judge to recuse himself and the constitutionality of
requiring a parent to pay child support.
To the extent any errors exist in the first category, they may be corrected in
the trial court in accordance with rule of appellate procedure 34.6(e). See TEX. R.
APP. P. 34.6(e) (Inaccuracies in the Reporter’s Record). Father, however, did not
invoke this procedure, and in any event, the errors he identifies in this category are
not probative on the issue before the trial court, that is, whether Father complied
with the trial court’s order to pay child support.
The second category of alleged errors—substantive legal complaints—must
have been preserved for review and briefed in accordance with the rules of appellate
procedure. See TEX. R. APP. P. 33.1 (preservation of complaint); 38.1(f) (requiring
concise statement of issues in appellant’s brief); 44.1 (reversible error). As we
explained in Bolling, we may not identify possible trial court error, search the record
for facts favorable to a party’s position, or conduct legal research to support a party’s
contentions. Bolling, 315 S.W.3d at 895. To the extent Father’s arguments were
properly presented and briefed in his other issues, we have addressed them. To the
extent they were not, we cannot consider them. See id. at 896. For these reasons, we
decide Father’s fifth issue against him.
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6. Specificity of motion
In his sixth issue Father contends that “the Appellee’s arguments are vague
and non-specific to case law presented as they don’t apply [to] the Father.” This
issue does not identify any specific argument by either Mother or the OAG. Nor does
Father complain of any specific error by the trial court or explain how the complaint
was preserved. Consequently, the issue presents nothing for our review.
Accordingly, we decide Father’s sixth issue against him. See Bolling, 315 S.W.3d at895–96.
CONCLUSION
We affirm the trial court’s March 12, 2020 order.
/Leslie Osborne//
200428f.p05 LESLIE OSBORNE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF D.F.D. AND On Appeal from the 256th Judicial
T.Z.D., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-18-19199.
No. 05-20-00428-CV Opinion delivered by Justice
Osborne. Justices Pedersen, III and
Reichek participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Tierrany Sepulveda Daniels and The Office
of the Attorney General of Texas recover their costs of this appeal from appellant
David Lee Daniels III.
Judgment entered this 19th day of July, 2022.
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