Lonnie Ray Allen Labonte v. Jodie Crystal Labonte ( 2006 )

In The  

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-06-082 CV ____________________

LONNIE RAY ALLEN LABONTE, Appellant

V.

JODIE CRYSTAL LABONTE, Appellee

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On Appeal from the County Court at Law #3 Montgomery County, Texas Trial Cause No. 05-05-04757-CV

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MEMORANDUM OPINION

Appellant Lonnie Ray Allen LaBonte and appellee Jodie Crystal LaBonte ⁽¹⁾ were divorced on December 7, 2005. Proceeding pro se, appellant raises four issues for our review. ⁽²⁾ We affirm.

After appellee filed her original petition for divorce, appellant filed a plea in abatement and a request for appointment of an attorney ad litem to represent him. The divorce decree dissolved the parties' marriage "on the ground of [appellant's] felony conviction." ⁽³⁾ The decree appointed appellee sole managing conservator of J.A.L. and appointed appellant the possessory conservator of J.A.L. The decree granted appellant visitation of one weekend every fourth month and required appellant to provide appellee fourteen days' advance notice of which weekend he desired to exercise his visitation.

In his first issue, appellant contends the trial court abused its discretion in refusing to appoint an attorney ad litem to represent appellant's interests. Appellant cites the following provision of the Texas Family Code in support of his contention:

(a) In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:

(1) an indigent parent of the child who responds in opposition to the termination[.]

Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2006). ⁽⁴⁾ The underlying case is a divorce proceeding. It was not filed by a governmental entity, and termination of appellant's parental rights was not at issue. Therefore, the authority cited by appellant is inapposite. We overrule issue one.

In his second issue, appellant asserts the trial court "abused its discretion by issuing [an] order granting condition of visitation by appellant upon consent of appellee." Appellant apparently complains of the decree's provision requiring him to provide fourteen days' advance notice to appellee of the weekend during which he desires to exercise his visitation. Appellant also appears to complain of the following exchange that occurred during the final hearing on the parties' divorce:

[APPELLEE'S COUNSEL]: Also . . . for the visitation Ms. LaBonte has requested that the Court approve that once every four months his sister be allowed to have the child for a weekend in order to take the child to see him.

THE COURT: Well, if that's - It's your child. If you are satisfied with the sister and whatever family he has, if you believe they are responsible adults and entrust your child, that is your business.

. . . .

If you don't, it's your child. Just because they happen to be related to the father doesn't mean that they get to have the child. That is your decision. So whatever you want to do that is right by the child, you have to make that decision.

[MS. LaBONTE]: Well, I don't mind letting her go.

Appellant apparently construes the decree's notice provision regarding visitation and the above exchange to mean that he may only exercise his visitation rights upon appellee's consent.

After the final hearing, the trial court entered a final decree of divorce, which provides as follows:

Except as otherwise explicitly provided in this Possession Order Lonnie Ray Allen LaBonte shall have the right to possession of the child as follows:

Weekends - One weekend every fourth month beginning in February, 2006, beginning at 10:00 a.m. . . . and ending at 6:00 p.m. on the following Sunday under the supervision of Lonnie Ray Allen LaBonte's sister, Vallorie Clark.

Notice - . . . Lonnie Ray Allen LaBonte shall provide written notice at least fourteen days in advance of which weekend he desires to exercise his visitation in every fourth month. . . .

Jodie Crystal LaBonte shall have the right of possession of the child at all other times not specifically designated in this Standard Possession Order for Lonnie Ray Allen LaBonte.

. . . .

1. Surrender of Child by Jodie Crystal LaBonte - Jodie Crystal LaBonte is ORDERED to surrender the child to Lonnie Ray Allen LaBonte's sister, Vallorie Clark, at the beginning of each period of Lonnie Ray Allen LaBonte's possession. . . .

The trial court's decree does not grant appellant visitation only upon appellee's consent; rather, the decree clearly orders appellee to surrender the child to appellant's sister during appellant's periods of visitation. We overrule issue two.

In his third issue, appellant argues the trial court abused its discretion by restricting him to one period of visitation every fourth month. The best interest of the child shall be the trial court's primary consideration in deciding issues of possession. Tex. Fam. Code Ann. § 153.002 (Vernon 2002). The trial court is given wide latitude in determining the best interests of a minor child, and we will reverse its judgment only when the court has clearly abused its discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). There is a rebuttable presumption that the standard possession order is in the best interest of the child. Tex. Fam. Code Ann. § 153.252(2) (Vernon 2002). However, if special circumstances of either conservator or the child make the standard order unworkable or inappropriate, the court shall render an order "that grants periods of possession of the child as similar as possible to those provided by the standard possession order." Tex. Fam. Code Ann. § 153.253 (Vernon 2002); see also In re J.E.P., 49 S.W.3d 380, 385 (Tex. App.--Fort Worth 2000, no pet). "The terms of an order that . . . imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child." Tex. Fam. Code Ann. § 153.193 (Vernon 2002).

In deviating from the standard possession order, the trial court may consider the following factors:

(1) the age, developmental status, circumstances, needs, and best interest of the child;

(2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and

(3) any other relevant factor.

Tex. Fam. Code Ann. § 153.256 (Vernon 2002).

As we previously noted, the record reflects that appellant is presently incarcerated for a felony offense. The record also reflects that J.A.L. is six years old. Given the circumstances present in this case, the trial court could have determined that deviating from the standard possession order was in the best interest of the child. Under these facts, we find the trial court did not abuse its discretion in granting appellant visitation once every four months. We overrule issue three.

In his final issue, appellant maintains the "trial court abused its discretion by failing to remain impartial." The trial court conducted the final hearing and granted the parties' divorce on December 7, 2005. No motion to recuse appears in the clerk's record; however, appellant contends he filed such a motion on March 30, 2006, and attached a copy of same as an appendix to his brief. Because appellant's purported motion to recuse does not appear in the appellate record, we may not consider it. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.--Dallas 2005, no pet.) (Appellate court cannot consider documents that are not formally included in the record on appeal.). Because appellant did not timely file a motion to recuse with the trial court, he has not properly preserved the issue for our review. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 18a(a) ("At least ten days before the date set for trial or other hearing . . ., any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case."); Barron v. State Attorney Gen., 108 S.W.3d 379, 382-83 (Tex. App.--Tyler 2003, no pet.) ("The procedural requisites for recusal in Rule 18a(a) are mandatory, and a party who fails to conform waives his right to complain of a judge's failure to recuse himself.").

Appellant asserts the purported grounds for recusal did not become apparent until after trial. However, even if we assume for the sake of argument that appellant properly preserved the issue for our review, appellant's issue nevertheless fails because he has not identified grounds for recusal. See Tex. R. App. P. 38.1(h). Rather, appellant seems to complain on appeal that the trial judge's failure to rule on some of appellant's pretrial motions and the judge's adverse rulings demonstrate bias. No circumstances requiring recusal are apparent from the record. See Tex. R. Civ. P. 18b(2). We overrule issue four and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on July 28, 2006

Opinion Delivered August 24, 2006

Before McKeithen, C.J., Gaultney and Horton, JJ.

1.

Appellee has not filed a brief in this appeal.

2.

As part of his arguments under each issue, appellant contends the trial court's alleged errors deprived him of his state and federal constitutional rights to due process. However, appellant has cited no authorities in support of these contentions. See Tex. R. App. P. 38.1. Therefore, we do not consider them.

3.

The record reflects that appellant is presently incarcerated as the result of a felony conviction. Appellant was convicted of capital murder and sentenced to imprisonment for life, and this Court affirmed his conviction in a previous opinion. See LaBonte v. State, 99 S.W.3d 801 (Tex. App.--Beaumont 2003, pet. ref'd).

4.

Because pertinent provisions of Tex. Fam. Code Ann. § 107.013 have not substantively changed since 2003, we cite the current version.