in the Interest of A.K.M., J.D.M., and D.M.M. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-12-00464-CV
________________
IN THE INTEREST OF A.K.M., J.D.M., AND D.M.M.
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. F-201,904-H
__________________________________________________________________
MEMORANDUM OPINION
Appellant, the father of the minor children A.K.M., J.D.M., and D.M.M.,
appeals the trial court’s modification order in a suit affecting the parent-child
relationship and the denial of his motion to recuse the trial judge. Appellant raises
ten issues for our consideration. We affirm the trial court’s order denying the
motion to recuse, and we affirm the trial court’s modification order in part and
reverse and remand the order in part for further proceedings consistent with this
opinion.
1
FACTUAL BACKGROUND
Appellant M. and the children’s mother, appellee W., 1 divorced on October
27, 2008. In 2010, M. filed a petition to modify the parent-child relationship. In his
petition, M. sought appointment as sole managing conservator of the children or,
alternatively, appointment as joint managing conservator with the right to
determine the children’s primary residence, as well as child support from W. M.
contended that W. had attempted to alienate him from the children, parented the
children inappropriately, failed to provide proper medical care for the children,
failed to co-parent the children with him, and that W. suffered from Munchausen
syndrome by proxy, “otherwise known as a histrionic personality disorder.”
According to M., W. had falsely insisted to mental health professionals and school
officials that J.D.M. and D.M.M. suffered from Asperger’s syndrome. The judge of
the 279th District Court, where the divorce action was litigated, eventually recused
himself from the case, and the case was reassigned to the 252nd District Court,
although the appellate record does not reflect the precise means by which the
reassignment was accomplished.
W. filed a counter-petition, in which she sought appointment as sole
managing conservator of the children and contended that “[t]he parties have been
1
To protect the children’s privacy, we will refer to the appellant as “M.” and
to the appellee as “W.”
2
unable to communicate in a manner conducive to joint managing conservatorship.”
W. asserted that M. had exposed the children to hostility and alienation against her
by filing “constant and continuing litigation[,]” contacting law enforcement
officers despite the lack of an emergency, having trespass and cease and desist
warnings issued that forbade W. from his residence, “mounting a letter[-]writing
campaign to medical and psychological providers for the children accusing her of
harming the children[,]” sending private emails between the parties to other
individuals, and causing a complaint to be made against W. with the Texas
Department of Family and Protective Services (“CPS”). W. further alleged that M.
had demonstrated an inability to maintain a positive relationship with her “that is
conducive to joint managing conservatorship,” exposed the children to the
overnight stays of his sexual partners, and “exposed the children to unknown and
unchecked individuals during the operation of another’s business” in his residence.
W. requested that M. exercise possession and access pursuant to the standard
possession order “if and only if recommended by the court[-]appointed mental
health professionals[.]”
The custody case was tried to the bench in January 2012. According to M.,
the trial judge sent M. and W. to Dr. Michelle Douget, who advised the trial court
that M. and W. should cooperate and agree regarding the treatment of the children
3
and recommended that M. and W. have psychological testing for personality traits,
as well as participate in ongoing therapy. M. testified that Douget found he did not
suffer from any mental abnormalities.
Clinical psychologist Dr. Dan Roberts testified the trial judge asked him to
evaluate M. and W., and that he interviewed both M. and W. for several hours and
asked them to complete two personality inventories. Roberts also testified that he
reviewed a report from Dr. Timothy Bohan, who the trial court had previously
appointed as an expert to evaluate the children. 2 Roberts also testified that he
talked to all three of the children, spoke to several people about M. and W., and
reviewed the children’s medical, pharmacy, counseling, school, and other records.
Roberts also spoke to two of the children’s teachers.
Roberts recommended that the trial court consider increasing M.’s
possession time with the children, and he explained that the two older children
wanted more time with their father. Roberts also recommended that the court
consider appointing a parenting facilitator rather than a parenting coordinator
because a facilitator is permitted to testify concerning the parents’ progress, which
2
Although the trial court stated that it did not intend to consider any of the
opinions Bohan offered with respect to M. or W., the trial court cited Bohan’s
report as evidence in support of its findings of fact. In the report, Bohan stated that
he found some of M.’s responses during the evaluation troubling and indicative of
unusual thought processes.
4
would allow the case to proceed and expose the children to less conflict. In
addition, Roberts testified that prior to the divorce, M. had suffered a bout of major
depression, during which he was delusional. According to Roberts, M. is capable
of making medical and educational decisions for the children “up to a point[,]” but
Roberts explained, “I’m not certain that that’s a capacity or a willingness that is
stable based on his history.” Roberts stated that M. “should have a voice” in
making such decisions.
In Roberts’s psychological assessment of M., which was based upon his
examination of M. on November 16, 2011, and was introduced into evidence, he
concluded that M. had no “significant current problems” with depression, anxiety,
psychosis, stress management, or anger management, and that M. was currently
participating in counseling to help him manage stress. Roberts later noted in his
assessment that M. was “experiencing symptoms of anxiety and depression
associated with the aftermath of his divorce and his concern about the children’s
welfare[,]” and that M. had “obsessive tendencies, competitiveness, unusual ideas,
and a degree of inflexibility under stressful conditions.” Roberts’s assessment
concluded that “[o]n the whole [M.] appears to be a capable and concerned
parent.”
5
At the conclusion of the custody trial, the trial court issued temporary orders
awarding W. the exclusive right to consent to medical, dental, psychiatric, and
psychological treatment for the children, as well as the exclusive right to make
decisions concerning their educational needs, and ordered that M. “will not have
any contact with any teacher or medical provider or evaluator.” In a second order,
the trial court ordered that M. and W. would remain joint managing conservators of
the children, a behavior plan should be developed for D.M.M. through the public
school district, any appropriate therapy for D.M.M. shall begin immediately, the
parties shall not publicly discuss the children’s medical issues except with medical
providers or teachers, and the parties shall not discuss medical issues with the
children. The trial court further ordered that M. would have possession of the
children pursuant to the expanded standard possession order “as set out in the
Texas Family Code[,]” A.K.M. and J.D.M. shall have one extra overnight with M.
if they so choose, the parties shall utilize an internet calendaring system with the
amicus attorney for the children’s extracurricular activities, and both M. and W.
shall participate separately in therapy. The trial court set the cause for final hearing
on June 4, 2012.
In April 2012, M. filed an emergency motion for protection and
appointment of an attorney ad litem, in which he alleged that A.K.M. had made an
6
outcry of sexual abuse against W., and the trial court conducted an emergency
hearing on the motion on April 10 and 11, 2012. At the emergency hearing, M.
testified that he had been exercising visitation with the children since the trial
court’s temporary orders, and he described A.K.M as “in a state of full[-] scale
meltdown” and indicated that A.K.M.’s grades were poor and she was very angry
with her mother and grandmother. According to M., A.K.M. indicated that she
wanted to live with her father, and “she’s afraid to go back to her mother’s.” M.
testified that J.D.M. was also angry that since the temporary orders were entered,
M. had not been participating in his schooling, and he also testified that D.M.M.
was regressing with potty training.
M. explained that A.K.M.’s condition had deteriorated significantly during
the last month, and she had been “near hysterical[.]” According to M., A.K.M.
made an outcry of sexual abuse against W. to M.’s girlfriend B., and A.K.M. then
continued her outcry to M. M. testified that he had not suspected any abuse and
was shocked by it. M. explained that he took A.K.M. to the police department, and
A.K.M. wrote a statement. M. subsequently received a call from Detective Mark
Hoge, who asked M. to bring B. and A.K.M. to the police station. M. testified that
A.K.M. was interviewed for about two and a half hours, and the investigating
officer also interviewed M. and B. According to M., both Detective Hoge and
7
Sarah Miller from the Lufkin CPS office told M. that CPS would arrive at noon to
do a Priority One removal and have the children professionally interviewed. M.
testified that he wanted the trial court to make him “sole managing conservator
with all powers” during the pendency of the investigation, and that W. have no
visitation during that time.
The trial court asked the amicus attorney to contact Detective Hoge and
Miller. The trial judge personally questioned both Hoge and Miller on the record
after they were sworn, and both Hoge and Miller denied telling M. that CPS
intended to remove the children. The trial judge then announced his intention to
interview A.K.M. with a court reporter present, and the record reflects that the trial
judge extensively interviewed A.K.M., who was thirteen years old at the time, in
chambers. The reporter’s record of the interview encompasses seventy-nine pages.
The time stamps in the record of the hearing, although less than a model of clarity,
reflect that the interview apparently began at 1:18 p.m. and continued until 2:44
p.m.
When M. returned to the stand, W.’s counsel asked the court to admonish M.
of “his Fifth Amendment rights for perjury.” W.’s counsel asked M. if he testified
that CPS and the police told him that the children were going to be removed, and
M. testified, “[o]bviously I misspoke or misunderstood” and was “in error.” M.
8
testified that he was on medication for weight loss and acid reflux, but was not
under the influence of drugs or alcohol. M. testified that he thought he recalled
Detective Hoge telling him the case would be treated as a Priority One, but that his
memory was apparently incorrect, and he attributed his faulty recollection to the
fear he had experienced since A.K.M.’s outcry.
W.’s counsel asked M. whether he had discussed the case with K., a blogger
who M. (an attorney) represents, and M. responded that he had done so, but not in
detail, and M. indicated that he feared K.’s issues with the trial judge would be
taken out on M. M. testified that he had told A.K.M. to tell the truth when she
spoke to the trial judge. W.’s counsel asked M. whether he had anything to do
with “reports in various newspapers and news media . . . about what a bad judge . .
. Layne Walker is[,]” and M. denied having any involvement with those reports or
telling his children that the judge was bad, crazy, or mean. M. testified that he
showed the children one of the trial court’s temporary orders because they were
upset because he was not attending parent-teacher conferences. M. denied asking a
local reporter to publish a story concerning W.’s alleged romantic relationship with
a political figure, but M. admitted that he had discussed the alleged relationship
with the reporter. M. testified that he took A.K.M. on an overnight trip to “have
some fun, to put it out of her mind” after A.K.M. made the outcry. M. denied
9
scheduling the trip as a reward. M. also explained that he “was concerned if [the
outcry] was fabrication that [A.K.M.] needed substantial help.” M. testified that he
had repeatedly asked A.K.M. whether she was sure her allegations were true, and
told her not to say things just because she wanted to live with him. At the
conclusion of the day’s testimony, the trial judge also announced that the record of
his interview with A.K.M. was sealed and “nobody will ask for a copy of it
because you are not going to get it.”
M. was not present when the proceedings resumed the next morning. M.’s
counsel objected to going forward without M. but did not otherwise object to the
amicus attorney testifying. The amicus attorney, Raquel West, testified that she
had served as an amicus attorney in the case for approximately ten months, and she
had interacted with the children, M., and W. on many occasions.
According to West, M. called her because he believed he could not attend
one of J.D.M.’s school activities, and West advised M. “that was not the order or
the spirit of the order of the Court[,]” and she testified that she had also spoken
with the trial judge about the issue, and West advised M. that the only restriction
he had was “contacting teachers and medical providers.” West testified that M.
indicated he understood, and M. attended the activity. West explained that she
heard M.’s testimony that he believed he could not be involved with the children’s
10
schooling, including reading, proofing, or approving their homework, and West
testified that she found M.’s testimony incredible and “quite disturbing.”
According to West, J.D.M. and A.K.M. had both been exercising their right to
have an additional day with their father, and A.K.M. “is doing really poorly in
school in several subjects, not just one.”
West testified that she heard M. say that he was not helping or following
through with checking whether A.K.M. had homework, and West stated, “I truly
believe he was potentially trying to sabotage her school and her grades in an effort
to show that because [W.] got the educational decision-making that he could . . .
show . . . how poorly [A.K.M.] has done.” West also explained that M.’s testimony
about the children being upset about the trial court’s ruling confused her “because
they actually got what they wanted and that was an extra day with their dad.” West
opined that the children should not have seen a change in their daily lives, and that
it was inappropriate for M. to leave a court order out for them to read.
West testified, “I find . . . that these children are damaged because of him. I
think they are continuing to be damaged even more so since the order. He is taking
out his frustrations in a very conniving way on these children.” In addition, West
opined that M. has permanently changed the direction of A.K.M.’s life, and she
recommended that A.K.M. have intensive psychotherapy. West testified that
11
A.K.M. has been “brainwashed to some extent” and that M. taught her “to be
manipulative to get what you want.” West also opined that most of A.K.M.’s
outcry was false and was promoted by M. West opined that with respect to
A.K.M., “any access to her father needs to be extremely limited and probably
supervised.” West further opined that all of the children could deteriorate under the
circumstances. West testified that A.K.M. is willing to sacrifice herself to protect
her father.
M. arrived during cross-examination of West. When M. retook the stand for
additional cross-examination, he explained that he passed out on the stand the
previous day and did not have full memory of everything that occurred. M.
explained that taking weight loss medication, only eating a breakfast bar all day,
and dehydration contributed to an anxiety attack. M. denied telling A.K.M. “to do
this[;]” i.e., make an outcry. M. testified, “I always thought from the beginning,
2008, that there would be a relentless attempt to terminate my rights.” When asked
whether he contacted K. after leaving the courtroom, M. responded that K. visited
him at the hospital, and that he spoke with K. that morning and told him he was
scared. M. testified that he did not believe he committed perjury and did not
intentionally lie. When asked whether he should have control of the children when
12
he is under such distress that he was not in control of his faculties, M. testified, “As
I sit here right now, no, I’m too upset.”
At the conclusion of the hearing, the trial court stated as follows:
I just want an entire copy of this transcript turned over to the
Jefferson County District Attorney’s office and I want Mr. Maness to
have his staff or whoever he chooses to review this for perjury and/or
aggravated perjury. I do claim to be an expert in that area, but I am
not going to make that decision. If Mr. Maness’s Grand Jury is not
willing to take a look at it[,] I will be willing to convene a special
Grand Jury for the sole purpose of taking a look at this.
. . . I am going to order [M.] to cease and desist from relying on
hearsay in his life.
. . . [M.] will have no contact with these children of any nature
whatsoever until further order of the Court.
On April 11, 2012, the trial court signed a temporary order that removed the
children from both M. and W., forbade M. and W. from having contact with the
children, and temporarily appointed the children’s maternal grandmother as their
sole managing conservator. On April 19, 2012, the trial court signed an order
denying M.’s motion for protective order and appointment of an attorney ad litem.
In that order, the trial court found that M.’s “acts and manipulations . . . have
placed all of the children at immediate and significant risk of danger to their
physical and emotional welfare and caused the children to be in immediate danger
in [his presence].” The court further found that M. had not acted in the children’s
best interest, and that the children’s present circumstances would significantly
13
impair their physical health and emotional welfare. The trial court removed all
three children from M.’s custody and presence “for the children’s own protection.”
Additionally, the order provided that the provisions in the temporary order of April
10 with regard to W. would remain “until confirmation has been received by this
Court that [CPS] ha[s] ruled out the allegations of abuse against [W.].”
Furthermore, the trial court ordered that upon receipt of such confirmation, W.
“shall have unlimited and unrestricted possession and access of the children subject
of this suit.”
On April 18, 2012, the trial court held a hearing on W.’s motion to enter
orders. The hearing was scheduled because M. had filed a petition for writ of
mandamus with this Court after the hearing on the emergency motion, and the
purpose of the hearing apparently was to provide this Court with an order to review
in the mandamus proceeding. M. was not present at the hearing. At the hearing,
M.’s counsel acknowledged that the amicus had sent a letter stating that CPS and
the police did not intend to proceed with any allegations of abuse against W. The
trial judge stated,
I want to make sure that the record is clear as well. . . .
Correspondence that has been made or phone calls that have been
made has been from the investigating authorities to the Court. I have
not been involved in constant conversation. . . . [A]t no time has the
Court involved itself in the investigation.
14
At one point during the proceedings, when W.’s counsel and the trial judge were
questioning M.’s counsel about the basis for his objections to the proposed order,
the following exchange occurred between M.’s counsel, W.’s counsel, and the trial
judge:
[W.’s counsel]: Did you hear . . . [M.]’s response to the question
when I asked him if he was capable of taking care of the children and
on the second day he said he wasn’t capable of taking care of himself
right now and no, he wasn’t capable of taking care of the children?
[M.’s counsel]: I heard him say at this point at this time, which is
[with] reference to his present condition.
[W.’s counsel]: So, now, you are making the objection to the Court
that there was no evidence upon which the Judge can base the ruling
that the children shouldn’t be around [M.] for their own protection?
[M.’s counsel]: Because he was not capable of taking care of the
children at that point is not grounds for taking away the children
permanently from him, which this paragraph does.
THE COURT: Can I just ask for my protection, is there anything
now in the record that suggests otherwise?
[M.’s counsel]: That the children should not be taken away?
THE COURT: The only evidence that I have before me is [M.]
saying that he is not in a position to take care of them. [M.] has
voluntarily absen[t]ed himself from the proceeding today. . . . Is there
anything in the record from the day he testified to that that has
changed?
M.’s counsel objected “to being put under examination.”
15
W.’s counsel’s examination of M.’s counsel continued on for dozens of
pages of the reporter’s record, and the trial judge also made comments to M.’s
counsel and questioned M.’s counsel during the examination. The trial judge also
commented that he believed M. made a false report of abuse and “spent an
extended period of time brainwashing [A.K.M.] and spending days rewarding her
for her conduct. . . . [U]nder section 153.013 I find that [M.] definitely made a
false report of abuse. He encouraged it. He assisted it.”
In June 2012, M. filed a motion to recuse the trial judge. M. asserted in the
motion that the trial judge’s impartiality “may reasonably be questioned.” See Tex.
R. Civ. P. 18b(b)(1). Specifically, M. contended that after the custody trial in
January 2012, K. had published articles which were critical of the trial judge and
had filed a complaint against the trial judge with the State Commission on Judicial
Conduct. M. complained in the motion to recuse that the trial court ordered that
neither M. nor W. have access to the children, “even though there was no
complaint filed against [M.] and no affirmative relief asking that [M.] be denied
access to the children.” In addition, M. complained that the trial judge had ex parte
communications, and he pointed to, among other things, the trial court’s comment
at the April 18, 2012, hearing that “It’s been reported to me that since [A.K.M.]
has been returned that she’s making great strides. Her grades are back in order.
16
Everything is in good shape.” M. also complained of the trial judge’s sealing of
the record of his interview with A.K.M., as well as the judge permitting W.’s
counsel to call the amicus attorney as a witness to testify about “highly contested
issues.” In addition, M. alleged that although no complaint had been filed against
M. and no affirmative relief had been requested concerning denying M. access to
the children, the trial judge sua sponte ordered that neither W. nor M. have access
to the children.
On June 26, 2012, Judge Olen Underwood conducted a hearing on M.’s
motion to recuse. M.’s counsel testified that the trial judge summoned an attorney
for the City of Beaumont to bring the investigative report concerning A.K.M.’s
outcry to chambers, but never made the file part of the record. In addition, M.’s
counsel testified that during the first day of the hearing, the trial judge commented
to Miller and Hoge about the chance they had to “visit in [c]hambers,” and only the
trial judge questioned Miller and Hoge; the attorneys were not permitted to do so.
M.’s counsel also testified that communications occurred between the trial judge,
Hoge, and Miller on the second day of trial “either by way of telephone or text.”
According to M.’s counsel, the trial judge also received a telephone call from W.’s
mother, and the Court invited the parties to listen to his side of the conversation,
but the parties could not hear what W.’s mother was saying.
17
M.’s counsel also testified concerning the trial judge’s statements that he
intended to refer the matter to the District Attorney’s office to determine whether
M. had committed perjury or aggravated perjury and that he would convene his
own special grand jury if the District Attorney’s office declined to investigate M.
According to counsel, no party had testified that M. had encouraged A.K.M. to
make false allegations of sexual abuse against W., nor was there any documentary
evidence so indicating.
M.’s counsel testified that at the April 18 hearing on entry of orders, he was
on the stand for approximately three hours, and both the trial judge and opposing
counsel “aggressively questioned” him concerning a petition for writ of mandamus
he had filed. M.’s counsel testified that a “pervasive bias . . . occurred in that
hearing and questioning of me and to the point of insulting me, insulting my client,
stating that getting the truth out of me was as difficult as extracting a molar without
Novocaine. On numerous occasions saying that [M.] is not capable of telling the
truth.”
M.’s counsel also testified that the trial judge “repeatedly approached
[A.K.M.] trying to get her to recant her testimony” during the in-chambers
interview, and he explained that even after opposing counsel pointed out that
pursuant to statute, an in-chambers interview of the child shall be made a part of
18
the record, the trial judge still declined to provide the transcript of the interview
and instead sealed it. Counsel testified that A.K.M. never recanted her statements
during the April interview.
K. testified that he owns a political consulting group that publishes an
internet periodical. When M.’s counsel asked him whether he had published
anything on the internet that was critical of the trial judge, W.’s counsel objected
on the grounds of relevancy, and Judge Underwood sustained the objection. M.’s
counsel asked K. whether he had filed a complaint against the trial judge with the
Judicial Commission, and Judge Underwood again sustained W.’s counsel’s
relevancy objection despite M.’s counsel’s argument that “animosity between [K.]
and . . . Judge Layne Walker has created a problem in our case because the Judge
perceives [M.] as being a close friend of [K.].”
Miller testified that she had a conversation with the trial judge to which she
and the trial judge were the only participants. According to Miller, the trial judge
asked her if she was investigating the case, and then she answered the same
question again when he posed it to her under oath in the courtroom. M.’s counsel
rested at the conclusion of Miller’s testimony. Judge Underwood denied the
motion to recuse.
19
On September 14, 2012, W. filed a “request for additional relief in light of
evidence since the date of trial and brief in support[.]” In her request, W. discussed
M.’s testimony at the emergency hearing concerning A.K.M.’s outcry and his
testimony that CPS had told him a removal of the children was imminent, as well
as the CPS caseworker’s testimony that CPS had not told M. that a removal was
imminent. W. also pleaded that CPS had ruled out the alleged abuse by W., and
she contended that “evidence was introduced that would lead a reasonable person
to believe [M.] had encouraged and facilitated [A.K.M.] into making allegations . . .
of sexual abuse” against W.
W. pointed the trial court to this Court’s opinion in the mandamus
proceeding, in which we held that “the trial court heard evidence from which the
court could reasonably conclude that the order [changing custody] was necessary
to prevent significant impairment of the children’s physical health and emotional
development.” 3 In re M., No. 09-12-00179-CV, 2012 WL 1808236, at *3 (Tex.
App.—Beaumont May 17, 2012, orig. proceeding) (mem. op.). W. asserted that
the trial court “should recognize a need for continued emotional healing for these
children and need for a progressive, gradual return of an aggressively healed and
3
The order before this Court in the mandamus proceeding was the trial
court’s initial order that provided neither parent could have contact with the
children, not the order from which M. now appeals.
20
healthy father into their lives and minds.” W. requested “the Court to consider the
children, who . . . experienced this hostile drama . . . for at least the past five years
of their young lives. Five years of rancid feelings carried in the heart and mind of
[M.] exuding from his demeanor and his actions throughout the time spent with his
children. This recognized hatred has worked to harm the children. . . .” According
to W., the evidence adduced in the case had rebutted the presumption that the
standard possession order is in the children’s best interest, and she sought an order
developing a transitory period leading to M. again having possession and access to
the children after therapists determine that possession and access would be
appropriate.
On September 18, 2012, the trial judge conducted a “Final Orders” hearing.
M. was not present at the hearing. M.’s counsel argued that with respect to
contested matters, an amicus attorney is not permitted to testify pursuant to section
107.007 of the Family Code. 4 See Tex. Fam. Code Ann. § 107.007(a)(4) (West
2008). The trial court denied M.’s motion to remove the amicus. The trial court
then permitted W.’s counsel and the amicus to introduce evidence concerning the
amount of W.’s attorney’s fees and the amicus’s fees. 5 On the same date, the trial
4
M. had filed a motion to remove the amicus attorney.
21
court re-interviewed A.K.M. During the interview, the trial judge told A.K.M. that
the amicus “told me you wanted to tell me something.” A.K.M. then said that none
of her previous outcry was true. A.K.M. told the judge that M. and B. had told her
to make the allegations. When the trial judge asked A.K.M. if she wanted to visit
her father, she said, “No. I couldn’t. . . . He scares me. I don’t like him. He is
mean, and he lied to me.” A.K.M. also told the trial judge that she did not want to
see B., and she described B. as “evil.”
At the conclusion of the hearing, the trial judge signed an order in the
modification proceeding. In its eighteen-page order, the trial judge found that the
material allegations in M.’s suit to modify are untrue and brought frivolously and
for the purpose of harassment against W., denied M.’s requested modification, and
appointed W. sole managing conservator and M. possessory conservator of the
children. The trial court found that M. made a false report of child abuse against
W., and that it is in the best interest of the children to limit M.’s rights as
possessory conservator. Specifically, the trial court found that the standard
possession order is not in the best interest of the children and determined that good
cause exists “to order that [M.] be temporarily denied access during a period of
5
Prior to the hearing, W.’s counsel had filed a motion that sought, among
other things, the right to introduce supplemental evidence on attorney’s fees
concerning “multiple legal proceedings ancillary to the underlying modifications
heard at trial in January 2012[.]”
22
therapeutic intervention leading toward restricted possession and access based on
extreme circumstances found regarding the past behavior of [M.], the
circumstances of the children, and the physical, medical, educational, and
emotional needs of the children.”
The trial judge appointed a therapist “to develop a transitory program
leading to unsupervised possession and access of the children by [M.]” by
November 1, 2012. The trial court ordered M. to receive therapy from a licensed
mental health care professional, and required M.’s therapist to communicate with
the court-appointed therapist and to “be guided by the direction of the court-
appointed therapist in the areas of counseling and therapy for [M.]” In addition,
the trial court’s order required the children to continue treatment with their current
mental health care professionals, and ordered the court-appointed therapist to
communicate with the children’s therapists concerning the transitory program.
Under the terms of the order, the court-appointed therapist, M.’s therapist,
and the children’s therapists were to submit reports to the court and to the parties
stating why the modified standard possession order contained within the order
should or should not be instituted. These reports were to be submitted no later than
sixty days before the date the modified standard order should begin. The order
provided that the modified standard possession order would become effective
23
“immediately upon the completion of the transitory program and approval of the
Court as provided above” and required that all periods of possession by M. shall be
supervised at the court-appointed therapist’s discretion for the first six months the
modified standard possession order is exercised. The order also required M. to pay
a civil penalty of $500 for making a false report of child abuse. See Tex. Fam.
Code Ann. § 153.013(c) (West 2008). Finally, the trial court’s order awarded W.
attorney’s fees in the amount of $241,417.59 and ordered M. to transfer exclusive
control of the children’s 529 savings accounts, which M. had established, to W.
M. filed a motion for new trial. Subsequently, the parties learned that the
case had been reassigned to Judge Douglas Warne. Judge Warne conducted a
hearing on the motion for new trial on November 19, 2012. At the hearing, M.
produced letters from three therapists, each of whom had declined to serve as the
court-appointed therapist under the September 2012 order. Judge Warne denied the
motion for new trial.
On November 29, 2012, Judge Warne signed a “reformed” order, which
changed the court-appointed therapist to Dr. Lawrence Abrams but kept in place
the provisions from the September order regarding the transitory therapeutic period
and forbidding M. from having any contact with the children. In January 2013,
Judge Warne filed findings of facts and conclusions of law, in which he made the
24
following findings of fact, among others: (1) M. had attempted to permanently
alienate the children from W., publicly disparaged W., placed his sons’ health,
education, and development at risk, and “repeatedly demonstrated bizarre and
troubled behavior in the presence of the Court[;]” (2) it is in the children’s best
interest that M. “be temporarily denied access to the children so that he may seek
his own therapeutic treatment/intervention leading to restricted possession and
access of the children[;]” (3) unrestricted access to the children by M. would
endanger their physical or emotional welfare; (4) “[e]xtreme circumstances exist
sufficient to deny [M.] possession and access of the children until a licensed
mental health professional appointed by the Court determines that it is in the best
interests of the children to have restricted possession and access[;]” and (5) the 529
funds “are the property of the children” so W., as sole managing conservator,
should have “sole unrestricted management and control of said funds.” In its
conclusions of law, the trial court determined that appointing M. as a joint
managing conservator would significantly impair the children’s physical health or
emotional development, and limiting M.’s rights, duties, and access to the children
is in the children’s best interest.
W. filed a motion for judgment nunc pro tunc and a brief in support. W.
contended that while the judgment awarded attorney’s fees to her, “the order for
25
[M.] to actually pay the award appears to have been inadvertently omitted.”
According to W., the requested change was clerical rather than judicial, since the
trial court stated at the September 2012 hearing that attorney’s fees would be taxed
against M. The trial court granted W.’s motion for judgment nunc pro tunc and
ordered W. to submit a nunc pro tunc judgment that changed only the heading on
page one and the judgment language on page seventeen. The trial judge
subsequently signed a judgment nunc pro tunc, which contained language
explicitly ordering M. to pay W. attorney’s fees in the amount of $241,417.59.
On February 6, 2013, Dr. Abrams filed the required report with the trial
judge by letter. In the report, Abrams recommended a plan leading to resumption
of contact between M. and the children, and concluding that if M. adhered to the
requirements of the plan and was able to re-establish relationships with the
children, “the court might want to consider going to conventional visitation when
enough time has passed to reassure the court of the father’s stability.” It is unclear
from the record why no action has apparently been taken to begin Abrams’s plan
of reunification. W. contends in her brief that M. “has made NO attempt at proving
his ability to act in the best interest of the children, and therefore have access to the
children, by simply scheduling an appointment with the children’s counselors to
26
begin the plan of reunification.” She cites to nothing in the appellate record that
verifies this assertion.
ISSUE ONE
In his first issue, M. argues that Judge Underwood abused his discretion by
denying the motion to recuse Judge Walker due to Judge Walker’s alleged “extra-
judicial bias and pervasive antagonism” toward M. We review an order denying a
motion to recuse for abuse of discretion. In re M.C.M., 57 S.W.3d 27, 33 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied).
A judge must recuse himself in any proceeding in which his impartiality
might reasonably be questioned or he has a personal bias or prejudice regarding the
subject matter or a party. Tex. R. Civ. P. 18b(b)(1), (2). A judge is presumed to be
qualified until the contrary is shown. Sparkman v. Peoples Nat’l Bank of Tyler, 553
S.W.2d 680, 681 (Tex. App.—Waco 1977, writ ref’d n.r.e.). Recusal based upon
an allegation of bias “is appropriate only if the movant provides sufficient evidence
to establish that a reasonable person, knowing all the circumstances involved,
would harbor doubts as to the impartiality of the judge.” Abdygapparova v. State,
243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). “[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion[,]”
and opinions the judge forms during a trial do not necessitate recusal “unless they
27
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). “Thus, judicial
remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” Id. Expressions of impatience, dissatisfaction, annoyance,
and anger do not establish bias or partiality when those expressions arise from
events that occurred during trial. Id. at 555-56; Dow Chem. Co. v. Francis, 46
S.W.3d 237, 240 (Tex. 2001).
In his appellate brief, M. complains of Judge Underwood’s exclusion of K.’s
testimony during the recusal hearing and Judge Walker’s “high degree of
antagonism” against M. “To preserve error concerning the exclusion of evidence,
the complaining party must actually offer the evidence and secure an adverse
ruling from the court.” Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso
2002, no pet.). With respect to the exclusion of certain testimony from K., the
record reflects that although M.’s counsel argued to the court concerning the
substance of the desired testimony and the reasons counsel believed the testimony
was relevant, M.’s counsel did not make an offer of proof through K. See id.
Because counsel did not make an offer of proof, M. has failed to preserve the issue
for review. See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a)(1)(B); Weng
28
Enters., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 221 (Tex. App.—
Houston [1st Dist.] 1992, no writ).
Undoubtedly, the trial judge frequently and extensively displayed anger,
frustration, annoyance, and dissatisfaction with M. and his attorney, as well as
skepticism and disbelief about M.’s testimony, during the course of the
proceedings. The record of the April 2012 emergency hearing indicates that the
trial judge initially became angry with M. and skeptical of his testimony when
Hoge and Miller contradicted M.’s testimony, and it was at that point when the
trial judge announced his intention to interview A.K.M. in chambers. By the time
the trial judge called Hoge and Miller to testify, he had heard M. testify and
observed M.’s demeanor on the stand for almost three hours. It is clear from the
manner in which the trial judge conducted the interview with A.K.M. that the trial
court disbelieved M.’s testimony concerning A.K.M.’s outcry. However, the record
does not demonstrate that the trial judge’s disbelief of M.’s testimony and his
subsequent displays of anger were derived from an extrajudicial source. Rather, the
record demonstrates that the trial judge’s anger, annoyance, frustration, and
dissatisfaction likely derived from his belief that M. had given false testimony.
While the trial judge undoubtedly displayed anger and a desire to see M. criminally
investigated, his conduct does not demonstrate such a pervasive extrajudicial bias
29
or antagonism that required recusal. See Tex. R. Civ. P. 18b(b)(1), (2); Liteky, 510
U.S. at 555; Abdygapparova, 243 S.W.3d at 198; Francis, 46 S.W.3d at 240.
Accordingly, Judge Underwood did not abuse his discretion by denying M.’s
motion to recuse. We overrule issue one.
ISSUE FIVE
In his fifth issue, M. argues the trial court erred by permitting W.’s counsel
to call the amicus attorney to testify regarding contested issues of fact. See Tex.
Fam. Code Ann. § 107.007 (West 2008). As discussed above, M.’s counsel did not
object during the emergency hearing to the amicus attorney testifying. Therefore,
M. failed to preserve the issue for appeal. See Conn v. Rhodes, No. 2-08-420-CV,
2009 WL 2579577, at *5 (Tex. App.—Fort Worth Aug. 20, 2009, no pet.) (mem.
op.) (Failure to object at trial to the admission of an amicus attorney’s report or
testimony waives the complaint on appeal.); see also Tex. R. App. P. 33.1(a); In re
J.K.F., 345 S.W.3d 706, 717 (Tex. App.—Dallas 2011, no pet.). Accordingly, we
overrule issue five.
ISSUE SIX
In issue six, M. contends the trial court abused its discretion by ordering M.
to transfer control of the children’s 529 college plans to W. and to pay attorney’s
fees in the amount of $241,417.59. With respect to the 529 accounts, M. argues
30
that no pleadings or evidence support the order. With respect to the attorney’s fees,
M. apparently asserts that no pleadings support an award of any fees other than
those incurred at the January trial, and he maintains that the trial judge lacked
authority to award fees for the mandamus proceeding or the recusal proceeding.
In her counter-petition, W. pleaded for “reasonable attorney’s fees . . .
through trial and appeal[;]” therefore, M.’s contention that no pleadings support an
award of attorney’s fees is inaccurate. Section 106.002 of the Family Code
provides, “In a suit under this title, the court may render judgment for reasonable
attorney’s fees and expenses . . . .” Tex. Fam. Code Ann. § 106.002(a) (West
2008). Therefore, the trial court did not abuse its discretion by awarding attorney’s
fees for the January 2012 custody hearing or the April 2012 emergency hearing.
See id. However, we conclude that the trial court lacked the authority to award
attorney’s fees for the mandamus proceeding or the recusal proceeding. A
mandamus proceeding is an original appellate proceeding seeking extraordinary
relief. Tex. R. App. P. 52.1. Although the mandamus was related to the
modification suit, it was an original, separate proceeding within the jurisdiction of
this Court. See In the Interest of V.T., No. 2-03-248-CV, 2004 WL 1353024, at *2
(Tex. App.—Fort Worth June 17, 2004, pet. denied) (mem. op.) (When father filed
a petition for writ of mandamus complaining of the trial court’s order denying his
31
motion to disqualify mother’s attorney in a modification case, trial court lacked
jurisdiction to award attorney’s fees for the mandamus proceeding.).
With respect to the recusal proceeding, Rule 18a(h) of the Texas Rules of
Civil Procedure provides that the judge who hears the motion to recuse may order
the party or attorney who filed the motion, or both, to pay reasonable attorney’s
fees and expenses incurred by the other party if the judge finds that the motion was
(1) groundless and filed in bad faith, or for the purpose of harassment or (2) clearly
brought for unnecessary delay and without sufficient cause. Tex. R. Civ. P. 18a(h).
Judge Underwood did not award attorney’s fees to M., and the trial judge lacked
authority to assess attorney’s fees for the recusal proceeding. See id.
With respect to the children’s 529 savings plans, M. argues that the trial
court abused its discretion by requiring M. to sign control of the plans over to W.
because the trial judge “stated no basis for his order, and there were no pleadings
and no evidence to support it.” As discussed above, in her counter-petition, W.
requested appointment as sole managing conservator in her counter-petition, and
the trial court appointed W. sole managing conservator of the children and granted
W. the exclusive right to make decisions concerning the children’s education. The
evidence established that (1) M. opened the plans and was the participant, (2) the
divorce decree provided that M. would control the 529 college savings plans, and
32
(3) for three years, M. put all of his bonuses into the 529 plans, which totaled
approximately $437,000 at the time of trial. The evidence also established that in
2009, as part of an order permitting M. to transfer the accounts to a different
brokerage firm, the trial judge enjoined M. from using any of the 529 funds for any
purpose other than a “qualified higher education expense” as defined by the
investment plan, and also enjoined M. from changing the beneficiary of any of the
accounts without W.’s express written consent.
W. contends she “specifically placed the 529 accounts into issue in her
Request for Additional Relief[,]”which she filed on September 14, 2012, and she
also points to her general prayer for any and all other relief the trial court
determined to be in the children’s best interest and for their protection. In W.’s
request for additional relief, she asked that the court order M. to provide statements
for the 529 accounts to her by certified mail on the first day of each month “to
insure his fiduciary duties to the children are being met[,]” but she did not request
that control of the 529 plans be transferred to her. W.’s second amended counter
petition, her live pleading at the time of the hearings, also did not request such
relief. We conclude that ownership of the 529 savings accounts was not an issue
raised by the pleadings. Therefore, the trial court abused its discretion by ordering
M. to transfer ownership of the 529 savings accounts to W. See In re Russell, 321
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S.W.3d 846, 855 (Tex. App.—Fort Worth 2010, orig. proceeding) (“A trial court
abuses its discretion by awarding relief to a person who has not requested such
relief in a live pleading.”); Tex. R. Civ. P. 301 (The judgment shall conform to the
pleadings.).
We sustain issue six. Accordingly, we remand the cause to the trial court to
determine the appropriate amount of attorney’s fees consistent with this opinion by
segregating the attorney’s fees that are recoverable from those that are not, as well
as for entry of an order transferring ownership of the 529 savings accounts back to
M. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006)
(“[I]f any attorney’s fees relate solely to a claim for which such fees are
unrecoverable, a claimant must segregate recoverable from unrecoverable fees.”);
Russell, 321 S.W.3d at 855.
ISSUE SEVEN
In issue seven, M. complains of the trial court’s entry of a judgment nunc
pro tunc to correct what M. contends was a judicial error. As discussed above,
upon W.’s motion, the trial judge signed a judgment nunc pro tunc, which
contained language explicitly ordering M. to pay W. attorney’s fees in the amount
of $241,417.59. At the September 2012 hearing on final orders, the trial court
34
found that W.’s reasonable and necessary attorney’s fees in the amount of
$241,417.59 “will be taxed against [M].”
A trial court may correct a clerical error in a judgment at any time by
entering a judgment nunc pro tunc. Tex. R. Civ. P. 316, 329b(f); Escobar v.
Escobar, 711 S.W.2d 230, 231 (Tex. 1986). The determination of whether an error
in a judgment is judicial or clerical is a question of law that we review de novo.
Roan v. Roan, No. 03-09-00155-CV, 2010 WL 4260974, at *5 (Tex. App.—Austin
Oct. 28, 2010, no pet.) (mem. op.); Escobar, 711 S.W.2d at 232. “A clerical error
is a discrepancy between the entry of a judgment in the record and the judgment
that was actually rendered by the court, and does not arise from judicial reasoning
or determination.” Rawlins v. Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston
[14th Dist.] 2010, no pet.). “A judicial error, on the other hand, occurs in the
rendering, as opposed to the entering, of a judgment. Id. “A judgment is rendered
when the decision is officially announced either orally in open court or by a
memorandum filed with the clerk.” Id. The trial court “can only correct the entry of
a final written judgment that incorrectly states the judgment actually rendered.”
Escobar, 711 S.W.2d at 231-32.
We conclude that the trial judge’s pronouncement awarded a judgment in
favor of W. from M. for attorney’s fees, and the failure to include in the written
35
judgment a provision that expressly ordered M. to pay W. attorney’s fees in the
amount of $241,417.59 was a clerical error that the trial court could properly
correct by entry of a judgment nunc pro tunc. See Escobar, 711 S.W.2d at 231-32;
Rawlins, 324 S.W.3d at 855. Accordingly, we overrule issue seven.
ISSUE NINE
In issue nine, M. challenges the trial court’s conclusions of law regarding
joint managing conservatorship, rights and duties, and possession and access. We
review a trial judge’s decision on a petition to modify under an abuse of discretion
standard. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.).
We determine whether the trial judge acted arbitrarily or without reference to any
guiding rules or principles. Id. Because the abuse-of-discretion standard of review
overlaps with traditional sufficiency standards of review in family law cases,
challenges to the sufficiency of the evidence are not independent grounds for
reversal, but instead constitute factors relevant to determining whether the trial
judge abused his discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas
2009, no pet.).
M. argues that although the order appointed him a possessory conservator,
the trial court’s order also stripped him of nearly all parental rights and effectively
denied him all possession of and access to his children, an outcome not supported
36
by sufficient evidence. M. points out that “while the denial of access is
purportedly ‘temporary,’ the trial court’s order does not provide any enforceable
provisions for future access. Instead, future access is left to the determination of
the therapist under a poorly defined ‘transitory program’ leading to a modified
possession order on a date that is also to be determined.”
A parent of the child has the right to have physical possession of the child.
Tex. Fam. Code Ann. § 151.001(a)(1) (West 2008). Public policy dictates that
children will have frequent and continuing contact with parents who have shown
the ability to act in the children’s best interest. Id. § 153.001(a)(1); In re C.R.O., 96
S.W.3d 442, 447 (Tex. App.—Amarillo 2002, pet. denied). The trial court must
consider the best interest of the children, and there is a rebuttable presumption that
appointment of both parents as joint managing conservators is in the children’s
best interest. Tex. Fam. Code Ann. §§ 153.002, 153.131(b). There is also a
rebuttable presumption that the standard possession order is in the children’s best
interest. Id. § 153.252(2). A finding by the court that a report of abuse made during
the pendency of a suit affecting the parent-child relationship was false or lacking
factual foundation may constitute grounds for the court to modify an order
providing for possession of or access to a child who was the subject of the report
37
by restricting further access to the child by the person who made the report. Id. §
261.107(b) (emphasis added).
“The terms of an order that denies possession of a child to a parent or
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.” Id. § 153.193. A trial court’s discretion to make temporary orders is limited
by a fit parent’s right to exercise his parental rights. See In re Scheller, 325 S.W.3d
640, 642 (Tex. 2010) (citing Troxel v. Granville, 530 U.S. 57, 68, 72-73 (2000)).
Using a neutral third party, such as a mental health professional, to assist with
determining the most appropriate possession rights may be necessary in a complex
family law situation. In re J.S.P., 278 S.W.3d 414, 422 (Tex. App.—San Antonio
2008, no pet.). “[D]elegating specific issues related to possession and access [to a
third party] appears to be permissible so long as the parent maintains access to
their child, and only faces the possibility of the denial of specific periods of
possession.” Id. (emphasis added). A trial court’s ability to obtain assistance from a
third party is limited by the requirement that the court must maintain the power to
enforce its judgment; that is, the order must be sufficiently specific to be
enforceable by contempt. Id. at 422-23.
38
In In re J.S.P., the child’s maternal grandmother was named sole managing
conservator, but the appellant father, who suffered cognitive impairment due to a
head injury prior to J.S.P.’s birth, was permitted supervised visitation. Id. at 417.
The father subsequently filed a petition to modify, in which he requested
appointment as joint managing conservator with the exclusive right to designate
J.S.P.’s primary residence, and he requested a standard possession order. Id. The
trial court entered temporary orders that continued supervised visitation, but on a
schedule. Id. After a jury trial, in which appellant was named a joint managing
conservator along with the grandmother, the trial court conducted a bench trial on
issues of possession and access. Id. At the conclusion of the bench trial, the trial
court continued the supervised visitation schedule and ordered the creation by a
psychologist of a transitory program intended to lead to unsupervised visitation by
the father. Id.
W. cites In re J.S.P. for the proposition that orders utilizing a mental health
professional to develop a transitory program must state a date by which the
transitory program should be developed, a date by which the standard possession
order should begin, or a deadline by which the therapist must report reasons why
the transitory program could not be developed or why standard possession should
not commence. W. argues that the order the trial court entered in this case meets
39
the requirements set forth in In re J.S.P. W. ignores the fact that In re J.S.P. did
not involve depriving the father of all rights of visitation and access. See id. at 417-
23.
We conclude that there is sufficient evidence in the record to support the
trial court’s determination that the standard possession order would not be in the
children’s best interest. However, there is insufficient evidence to support the trial
court’s order forbidding M. from contacting the children and denying M. all rights
of possession and access, even on an ostensibly temporary basis. See generally
Tex. Fam. Code Ann. § 153.193; Moore v. Moore, 383 S.W.3d 190, 198 (Tex.
App.—Dallas 2012, pet. denied) (In family law cases, sufficiency of the evidence
issues are relevant factors in determining whether the trial court abused its
discretion.); In re A.B.P., 291 S.W.3d at 95. The trial court therefore abused its
discretion by forbidding M. from contacting the children and denying M. all rights
of possession or access. Accordingly, we sustain issue nine in part, reverse the
portions of the trial court’s order that provide that M. have no visitation or access
to the children and that M. cannot contact the children, and remand the case to the
trial court for entry of an appropriate order consistent with this opinion. The trial
court may consider the recommendations set forth in Dr. Abrams’s February 2013
report; however, we will leave the specific terms of visitation and access to the trial
40
court’s discretion. We need not address M.’s remaining issues, as they would not
result in greater relief. See Tex. R. App. P. 47.1.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on December 30, 2013
Opinion Delivered February 27, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
41