in the Interest of A.A.M. and J.M.J., Children ( 2020 )

AFFIRMED and Opinion Filed January 29, 2020
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-01314-CV
IN THE INTEREST OF A.A.M. AND J.M.J., CHILDREN
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-15428
MEMORANDUM OPINION
Before Justices Bridges, Whitehill, and Nowell
Opinion by Justice Bridges
In this appeal, Mother challenges a final divorce decree in which the trial court adopted a
partial mediated settlement agreement (MSA). In two issues, Mother contends the trial court erred
by adopting the partial MSA and by determining child support based on evidence produced
through abusive discovery. We affirm.
Background
Mother and Father were both born in India. Mother moved to the United States in 2004.1
While attending law school in Michigan, Mother accepted an externship with a justice at the
Supreme Court of India. At that time, Father worked as a senior assistant to a justice of the
Supreme Court of India and was tasked with helping Mother adjust to the area because she was
1
Mother became a United States citizen in 2012.
unfamiliar with that part of the country and did not speak Hindi. The two became close friends,
and Father proposed to her early in their friendship but she did not accept.
Mother and Father later married in November of 2012. Mother described the relationship
as emotionally and physically abusive. She said Father was “very difficult, as he was prone to
tantrums including throwing things, yelling, and long exhausting tirades.” The record indicates
after their first son was born, Mother left with the child and spent time in a women’s shelter in
January 2013. Although CPS investigated Father, the allegations were “Ruled Out.”
Mother and Father reconciled in February 2014. Their second son was born in November
2015. Mother alleged Father’s controlling and harassing behavior began to escalate again. These
periods of escalation and reconciliation continued until Mother filed for divorce in July 2016
“because of discord or conflict of personalities between Petitioner and Respondent that destroys
the legitimate ends of the marriage relationship,” and “Respondent is guilty of cruel treatment.”
Father filed a response requesting joint managing conservatorship of the children. The
August 3, 2016, associate judge’s report granted temporary joint managing conservatorship to both
with Mother given the right to establish the children’s residence. It indicated “NO” history of
family violence.
On November 7, 2016, Father filed a counter-petition for divorce in which he requested
sole managing conservatorship of the children, or alternatively, joint managing conservatorship
with the right to designate primary residence.
Father filed a motion for mediation on November 8, 2016. On June 20, 2018, Mother filed
her objection to Father’s referral for mediation because of family violence. See TEX. FAM. CODE
ANN. §§ 6.602(d), 153.0071(f). After a hearing, the trial court signed a mediation order on July
31, 2018.
–2–
Mother and Father proceeded to mediation without any further objection. They filed a
partial MSA on August 27, 2018, in which Mother and Father agreed to joint managing
conservatorship of the children with certain exclusive rights given to Mother. The agreement
reserved the determination of child support for trial.
On September 27, 2018, the parties participated in a bench trial in which Mother asked the
trial court to, among other things, (1) incorporate the partial MSA into the final divorce decree, (2)
order Father to attend and complete a Batterer’s Intervention and Prevention Program, (3) find
Father was intentionally underemployed, and (4) order $1,125.75 a month in child support. The
trial court then heard Mother’s and Father’s differing views of the relationship, including Mother’s
admission she often told her family and Father different stories about her feelings. The trial court
also heard testimony regarding Father’s employment history.
At the conclusion of the bench trial, the court incorporated the partial MSA into the final
divorce decree and ordered Father to pay $619.00 a month in child support. Mother then filed this
pro se appeal.
The Appellate Record
We begin by addressing the state of the record before the Court. Mother’s opening brief
contains numerous statements regarding events she alleged happened regarding these proceedings
that are unsupported by any record citation. We may not consider such statements in our legal
analysis. See TEX. R. APP. P. 38.1(g) (appellant’s brief must state concisely and without argument
the facts pertinent to the issues or points raised” and be supported by record references). Likewise,
to the extent Mother asks the Court to take judicial notice of Tab 14 of her appendix, which
contains documents not admitted as evidence in the trial court, we deny her request. An appellate
court may not consider documents attached to an appellate brief which are not part of the record.
See Watamar Holdings S.A. v. SFM Holdings, S.A., 583 S.W.3d 318, 328 (Tex. App.—Houston
–3–
[14th Dist.] 2019, no pet.). Accordingly, those documents attached to Mother’s appendix that are
not part of the appellate record will not be considered. TEX. R. APP. P. 34.1 (appellate record
consists of clerk’s and reporter’s record).
We recognize Mother is appearing before the Court pro se; however, she must comply with
applicable laws and rules of procedure. On appeal, as at trial, the pro se appellant must properly
present her case. Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004,
pet. denied).
Adoption of the Partial Mediated Settlement Agreement
In her first issue, Mother argues the trial court abused its discretion by adopting the partial
MSA granting joint managing conservatorship because the mediation, partial MSA, and trial were
vitiated by fraud on the court. Further, she contends the trial court abused its discretion by adopting
the partial MSA because of Father’s history of family violence.
Texas has a policy encouraging “the peaceable resolution of disputes” particularly disputes
involving the parent-child relationship. In re J.A.S.C., 430 S.W.3d 544, 547 (Tex. App.—Dallas
2014, no pet.). In furtherance of that policy, a trial court may refer a suit affecting the parent-child
relationship to mediation and, if an MSA is reached, must enter a judgment on the MSA without
inquiry into whether the MSA is in the best interest of a child. Id.; see also In re Lee, 411 S.W.3d
445, 447 (Tex. 2013).2
An MSA is binding on the parties if the agreement: (1) provides, in a prominently displayed
statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject
to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney,
2
To the extent Mother includes allegations regarding the attorneys’ actions prior to and during the mediation in which she argues, in part,
that her attorney “betrayed her,” such allegations are outside the record. While the record includes Mother’s objection to referral to mediation
based on family violence, the trial court signed “an agreed order regarding mediation” on July 31, 2018, stating it had considered Mother’s objection
and “subsequent agreements of the parties” and ordered mediation. Mother did not further challenge the mediation in the trial court and has not
challenged this order on appeal. See, e.g., Cojocar v. Cojocar, No. 03-14-00422-CV, 2016 WL 3390893, at *4 n.3 (Tex. App.—Austin June 16,
2016, no pet.) (noting family violence allegation pursuant to section 6.602 only addresses a party’s ability to file an objection to court referral to
mediation based on family violence allegation but mentions nothing about how such an allegation affects MSA).
–4–
if any, who is present at the time the agreement is signed. TEX. FAM. CODE ANN. § 153.0071(d).
However, section 153.0071(e-1) provides that a court may decline to enter a judgment on an MSA
if the court finds that (1) a party to the agreement was a victim of family violence; (2) that
circumstance impaired the party’s ability to make decisions; and (3) the agreement is not in the
child’s best interest. Id. § 153.0071(e-1). For this narrow exception to apply, all three
requirements must be found by the trial court. See In re Lee, 411 S.W.3d at 453. Otherwise, if an
MSA meets the requirements of section 153.007(d), a party is entitled to judgment on the MSA
notwithstanding rule 11, Texas rules of civil procedure, or another rule of law. Id. § 153.0071(e).
We review a trial court’s rendition of judgment on an MSA under an abuse of discretion
standard. In re Lee, 411 S.W.3d at 450; In re C.C.E., 530 S.W.3d 314, 319 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).
Here, the partial MSA includes Mother’s and Father’s agreement to be joint managing
conservators of the children. Directly above the “conservatorship/support/visitation” section of
the partial MSA, is the following paragraph:
Each party to this mediation affirms by signing this Agreement
that each party is mentally and physically able and capable of
participating in this mediation and has willingly and voluntarily
made informed decisions about this agreement without being
influenced by medications, drugs, alcohol, stress, force, duress,
threats, or fatigue.
The partial MSA is initialed by each parent at the bottom of every page. Pursuant to the
requirements of section 153.0071(d), the partial MSA states the following in bolded, capital letters:
THE PARTIES HERETO AGREE THAT THIS MEDIATED
SETTLEMENT AGREEMENT IS BINDING ON SAID
PARTIES AND IS NOT SUBJECT TO REVOCATION.
BOTH PARTIES ACKNOWLEDGE THAT THIS
MEDIATED SETTLEMENT AGREEMENT IS
ENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THAT THE COURT MAY ENTER
JUDGMENT BASED UPON THIS MEDIATED
SETTLEMENT AGREEMENT, AND THAT NEITHER
–5–
PARTY MAY WITHDRAW THEIR CONSENT TO THE
TERMS OF THIS MEDIATED SETTLEMENT
AGREEMENT.
The agreement also includes both parents’ signatures and their attorneys’ signatures. Thus, the
partial MSA complies with section 153.0071(d), and Mother has not specifically challenged these
requirements.
Instead, she argues the trial court abused its discretion because section 153.004 precludes
appointment of joint managing conservators when there is a history of physical abuse within the
family. See TEX. FAM. CODE ANN. § 153.004(b) (“The court may not appoint joint managing
conservators if credible evidence is presented of a history or pattern of past or present child neglect,
or physical or sexual abuse by one parent directed against the other parent . . . .”). Because of the
alleged history of abuse, Mother seems to argue the narrow family violence exception of
153.0071(e-1) applies thereby precluding the entry of the partial MSA. Mother did not raise this
argument to the trial court. See Martinez v. Martinez, 157 S.W.3d 467, 471 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (party failed to preserve issue regarding violation of section 153.004
when potential applicability of section was not raised to the trial court). Rather, the record
indicates the parties participated in mediation, reached a partial MSA regarding joint managing
conservatorship, and reserved other issues for trial.
Further, at the beginning of the bench trial, Mother’s counsel asked the trial court to
“incorporate the partial Mediated Settlement Agreement that was signed and filed with the Court
on August 27, 2018.” When Mother testified, she agreed they had reached a partial agreement
regarding a parenting plan and that the agreement was in the best interest of the children. Counsel
specifically asked, “Are you asking the court to accept the agreements between you and [Father]
as contained in the Mediated Settlement Agreement on file with the Court?” and Mother answered,
“Yes.” Neither side objected to the court taking judicial notice of the agreement. At the conclusion
–6–
of the trial and based on the relief requested, the court accepted the partial MSA and incorporated
the terms into the final divorce decree.
Mother was required to present to the trial court the specific legal basis for the argument
she now raises on appeal. Because she did not challenge the partial MSA for any of the reasons
she now raises on appeal but instead affirmatively agreed to its incorporation into the divorce
decree, she failed to preserve any further consideration of the issue. Id.; see also TEX. R. APP.
33.1.
Similarly, to the extent Mother challenges the partial MSA because of “fraud on the court,”
the defense must be timely raised in the trial court or it is waived. TEX. R. APP. P. 33.1(a); see
Cojocar, 2016 WL 3390893, at *5 (fraud must be raised in trial court to preserve issue for review).
She did not raise this defense; therefore, her argument is not preserved for review.
We recognize Mother testified regarding the physical, sexual, and emotional abuse she
allegedly experienced at the hands of Father. The trial court further heard testimony from
counselors who treated Mother and the children. However, the parties stated the issues for the trial
court’s consideration at the beginning of trial. These issues did not include a determination of
conservatorship, whether Mother was a victim of family violence, or whether such circumstances
impaired her ability to enter into the MSA. Thus, to the extent Mother seems to ask this Court to
engage in a sufficiency review of the evidence heard at trial, we reject her invitation.
The partial MSA met the requirements of section 153.0071(d). Accordingly, the trial court
did not abuse its discretion by incorporating it into the final divorce decree. Id. § 153.0071(e)
(party entitled to judgment on MSA when section (d) requirements met). We overrule Mother’s
first issue.
–7–
Child Support
In her second issue, Mother argues the trial court abused its discretion by determining child
support based on documentary evidence produced through abusive discovery. Mother specifically
argues exhibit 10, a letter from Father’s employer, was “surprise evidence” that she was not given
the opportunity to inspect. However, this exhibit was admitted without any objection; therefore,
any potential error in admission of the evidence is not preserved, and we shall consider the
evidence in our review of the child support determination. See TEX. R. APP. P. 33.1(a).
We interpret Mother’s challenge to the “trial court’s sole reliance on exhibit 10 in
determining child support against the overwhelming weight of the evidence” as “unjust and clearly
wrong,” a challenge to the factual sufficiency of the evidence supporting the trial court’s award of
$619.00 a month for child support.3
When reviewing child support, the reviewing court employs an abuse of discretion
standard. See Duran v. Garcia, 224 S.W.3d 309, 313 (Tex. App.—El Paso 2005, no pet.). The
test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present
an appropriate case for the trial court’s action, but whether the trial court acted without reference
to any guiding rules or principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 242 (Tex. 1985)). We employ a two-pronged analysis: (1) did the trial court have sufficient
information upon which to exercise its discretion, and (2) did the trial court err in its application
of its discretion? Id. We apply the traditional sufficiency review to the first question. Id. Once
we have determined whether sufficient evidence exists, we then must decide whether the trial court
made a reasonable decision. Id. In other words, we must determine whether the trial court’s
decision was not unreasonable or arbitrary. Id.
3
Mother failed to include the standard of review or citation to any case law regarding a court’s review of child support as required by the
rules of appellate procedure. See TEX. R. APP. P. 38.1(i).
–8–
When addressing a factual sufficiency challenge, we review all the evidence in the record,
including any contrary evidence to the trial court’s decision. See Thompson v. Smith, 483 S.W.3d
87, 93 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We set aside the verdict only if the finding
is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
(citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). In a bench trial, the trial court is the sole
judge of witness credibility. Id. Since there are no findings of fact or conclusions of law, the trial
court’s order must be affirmed if it can be upheld on any legal theory that finds support in the
evidence. See In re J.D.D., 242 S.W.3d 916, 921 (Tex. App.—Dallas 2008, pet. denied). It is
implied the trial court made all the findings necessary to support its judgment. Worford v. Stamper,
801 S.W.2d 108, 109 (Tex. 1990).
Here, the trial court heard Father testify regarding his work history and legal experience
while in India and his work and educational experience since moving to the United States. He
explained his periods of temporary employment and unemployment while attending law school
and studying for the bar exam. Prior to obtaining his law license in the United States, he worked
for Lyft, Amazon, and Uber.
He introduced exhibit 10 into evidence without objection, which was a letter from his
employer indicating his full-time employee status. The letter stated he alternated between working
three-day and four-day weeks while earning $225 per day. This calculated to earning of $675 and
$900 per week. His job did not provide health insurance or other benefits such as a company car
or a cell phone. He testified his total monthly expenses were $2,577.51.
He admitted he recently moved into a more expensive apartment, visited India twice, and
increased his monthly gas expenses. The trial court also considered Mother’s testimony in which
she believed Father could make $71,000 a year. She based her belief on her salary and earning
–9–
capacity as an attorney. The trial court considered this evidence and ordered Father to pay $619.00
“[b]ased on the letter you have from your employer, using an average of the high and low.”
The trial court had sufficient information before it to consider and exercise its discretion
regarding the child support issue. The child support award is not so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176. Accordingly,
the trial court did not abuse its discretion by ordering Father to pay $619.00 a month in child
support. We overrule Mother’s second issue. Duran, 224 S.W.3d at 313.
Ineffective Assistance of Counsel
While not included in her issues on appeal, Mother argues in a separate sub-heading she
received ineffective assistance of counsel. Except in parental-termination cases, civil litigants
generally are not guaranteed effective assistance of counsel. See Reagins v. Walker, 524 S.W.3d
757, 764 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Accordingly, Mother’s argument is
without merit.
Conclusion
The judgment of the trial court is affirmed.4
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
181314F.P05
4
Mother requests the Court to make several additional modifications to the trial court judgment which were not raised in the trial court or
presented as issues on appeal. Accordingly, we do not consider these requests on appeal. TEX. RS. APP. P. 33.1, 38.1(f).
–10–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.A.M. AND On Appeal from the 256th Judicial District
J.M.J., CHILDREN Court, Dallas County, Texas
Trial Court Cause No. DF-16-15428.
No. 05-18-01314-CV Opinion delivered by Justice Bridges.
Justices Whitehill and Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Fnu Anshul recover his costs of this appeal from appellant
Josia Jose Anshul.
Judgment entered January 29, 2020.
–11–