in the Interest of D.C Minor Children ( 2014 )

AFFIRMED; Opinion Filed May 9, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01574-CV
IN THE INTEREST OF D.C. AND L.C., MINOR CHILDREN
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-10-00462-X
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Lewis
Opinion by Justice Myers
Linda Janie Bordner, the aunt of the minor children D.C. and L.C., appeals from the trial
court’s final modification order in a suit affecting the parent-child relationship. In five issues,
appellant argues the trial court abused its discretion by entering the order, failing to conduct a
hearing on appellant’s motion for new trial, failing to file findings of fact and conclusions of law,
imposing a domicile restriction, and failing to have a record made of all the proceedings in this
case. We affirm the trial court’s judgment.
BACKGROUND AND PROCEDURAL HISTORY
The Texas Department of Family Protective Services (TDFPS) filed an original petition
for temporary managing conservatorship of D.C. (born November 29, 2007) and L.C. (born
December 13, 2006), the minor children in this lawsuit, on May 6, 2010. On July 27, 2010, the
trial court granted TDFPS temporary managing conservatorship of D.C. and L.C. Appellees
Bryan Chupp and Jasmine Chupp, the parents of D.C. and L.C., were appointed temporary
possessory conservators. Appellant Linda Janie Bordner, the children’s aunt, was appointed the
temporary possessory conservator with actual possession of D.C. and L.C. The temporary order
mandated that visitation for appellees should be supervised by appellant or her competent adult
designee.
On March 31, 2011, a mediated settlement agreement was entered into by the parties and
their attorneys. The agreement (filed-marked June 20, 2011) stated that appellant would replace
TDFPS as managing conservator of the two children upon her completion of the “Fostering
Connections Program.” Further, appellees would be appointed joint possessory conservators of
D.C. and L.C., with visitation as arranged and agreed upon by appellant. Failing an agreement,
Jasmine Chupp’s visitation would occur on the 1st and 3rd Sunday of each month from 2:00 p.m.
to 5:00 p.m. and the 2nd and 4th Wednesday of each month from 6:00 p.m. to 8:00 p.m., at the
home of appellant or another agreed upon location.
The trial court’s December 19, 2011 final order found that appointing a parent as the
managing conservator of the two children would not be in their best interest because it would
“significantly impair the physical health or emotional development of the children.” The order
appointed the director of the Dallas County Child Protective Services unit of TDFPS as the
permanent managing conservator of the two children. The order stated this was being done for
the purpose of placing the children with appellant, who retained actual possession, and so she
could participate in the “Fostering Connections Program.” The order provided that managing
conservatorship of the children would be transferred from TDFPS to appellant once she
completed the program and the required classes, and if the placement was “positive for the
children during the designated period.”
Appellees were designated joint possessory conservators. Jasmine Chupp would have
supervised visitation with the children as arranged with and agreed to by appellant. Absent an
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agreement between appellant and Jasmine Chupp, she would have supervised visitation with the
children on the 1st and 3rd Sunday of each month and the 2nd and 4th Wednesday of each
month. Bryan Chupp’s visitation was arranged according to a “stair-step” schedule. During the
first three months following the signing of the order, he had the right to visitation on the 2nd and
4th Sundays of each month, and all such visitation was supervised at the discretion of TDFPS or
appellant. If Bryan Chupp consistently exercised his visitation during the following three
months, and he did not miss more than two consecutive visits, he would have the right to
unsupervised visits on the 2nd and 4th Sundays of each month. If he consistently exercised his
visitation during the three months after that, and did not miss more than two consecutive visits,
he would have the right to unsupervised visitation with the children under a modified possession
order with rights to possession of the children on the 2nd and 4th weekends of each month, from
6 p.m. on Friday to 6 p.m. on Sunday.
On February 16, 2012, TDFPS filed a motion to modify in a suit affecting the parent-
child relationship, wherein it requested appellant be made permanent managing conservator of
the children. TDFPS caseworker Christina Sarmiento testified at the July 24, 2012 hearing on
the motion to modify that appellant had completed the Fostering Connections Program. She
recommended permanent managing conservatorship of D.C. and L.C. be transferred from
TDPFS to appellant, and that TDFPS be dismissed as party to the lawsuit. She also testified that
it was in the best interest of the children for Jasmine Chupp to continue, pursuant to the final
order, her supervised visitation schedule, and for Bryan Chupp to continue his unsupervised
visitation under the modified standard possession order––with rights to possession of the
children on the 2nd and 4th weekends of each month.
At that same hearing, appellant testified that Bryan Chupp had not progressed to the
second step in the court’s stair-step visitation because he was not consistently exercising his
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visitation––missing some visits, often arriving late, and showing up for some visits with his wife,
Jasmine Chupp. Appellant explained that Jasmine Chupp, who was incarcerated when the final
order was signed, now lived with her husband at his parents’ residence. She had “given up her
visitation days” and preferred to visit the children with him. Asked whether she had concerns
about Bryan Chupp having the children unsupervised, appellant said: “Well, if it was just the
dad, maybe not as much concern. But since he lives with the mom who is the offending parent
and they both live with his parents, who he stood in court many times and said, I don’t want her
around my children. Then I have great concerns.” On cross-examination, appellant
acknowledged that there was nothing in the final order precluding the mother and father from
visiting the children together, and that Bryan Chupp had missed two visits.
On October 5, 2012, the trial court held a hearing where entry of a proposed order based
on the July 24 hearing was discussed. Among other objections, appellant’s counsel brought up
issues of possession and support that were raised in July. The trial court stated: “I’m going to
get an Order entered on this case. And then I’m going to address whether there is some other
clarification needed or something. We are going to get an Order first.” At another point during
the hearing, appellant’s counsel argued “the circumstances have changed,” to which the trial
court replied: “That’s a different issue. I’m not going to hear that today. I want to deal with the
Order that needs to be entered with respect to the hearing from July 2012.” The trial court also
voiced some concerns about appellant’s testimony regarding the number of visits Bryan Chupp
actually missed, recalling that, “She couldn’t really specify that he had been out of compliance
with the Order,” and that, “She was waffling, she was kind of wanting to add some more things
to it and say he hasn’t complied with the order.”
The trial court signed the “Final Order of Modification in Suit Affecting Parent-Child
Relationship” on October 15, 2012. The order found that appointing a parent as the managing
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conservator of the two children was not in the best interest of the children “because the
appointment would significantly impair the physical health or emotional development of the
children,” and that “the circumstances of the subject children and of the prior managing
conservator, TDFPS, have materially and substantially changed since entry of the 1 order to be
modified, and that it would be in the best interest of the children to appoint Linda Janie Bordner
as the children’s Managing Conservator.” The order also provided “that the best interest of the
subject children will be served by continuing Jasmine Chupp and Bryan Chupp as Joint
Possessory Conservators of the children.” The order continued the visitation schedules set forth
in the final order, with supervised visitation for Jasmine Chupp as arranged with and agreed to
by appellant or, absent an agreement, on the first and third Sundays of each month and the
second and fourth Wednesdays of each month. The order stated that, failing an agreement
between Bryan Chupp and appellant, he had the right to unsupervised possession of the children
on the second and fourth weekends of each month from 6:00 p.m. on Friday until 6:00 p.m. on
Sunday. The order further provided that appellant was not obligated to allow Bryan Chupp
possession of the children for any designated period if he failed to appear or contact appellant
within thirty minutes of that designated time period.
On November 2, 2012, appellant filed a request for findings of fact and conclusions of
law, which the trial court did not act on. On November 5, appellant filed the instant notice of
appeal. Two days later, on November 7, she filed a motion for temporary orders pending appeal.
On November 15, 2012, the trial court conducted a hearing on appellant’s motion for temporary
orders pending appeal. On December 5, the trial court signed “The Temporary Orders Pending
Appeal.” Among other things, the temporary orders modified Jasmine Chupp’s child support
and employer withholdings and, finding appellees “are married and are now living together,”
1
The order in the electronic clerk’s record contains a handwritten date inserted here. The date, however, is illegible.
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clarified that appellee Bryan Chupp was to have no possession of and/or access to D.C. and L.C.
in the presence of Jasmine Chupp. 2
DISCUSSION
1. The Modification Order
In her first issue, appellant contends the trial court abused its discretion by signing the
October 15, 2012 modification order since it “is inappropriate and unworkable under the
circumstances and not in the best interest of D.C. and L.C., the children the subject of this suit.”
Because the trial court has broad discretion to decide the best interest of a child in family-
law matters such as custody, visitation, and possession, we review the trial court’s order
modifying conservatorship under an abuse of discretion standard. See Gillespie v. Gillespie, 644
S.W.2d. 449, 451 (Tex. 1982). The trial court was in the best position to observe the demeanor
and personalities of the parties and witnesses and to evaluate credibility, influences, and other
forces that are not discernible from the record. See In re T, 715 S.W.2d 416, 418 (Tex. App.––
Dallas 1986, no writ); In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.––Austin 2005, pet. denied).
A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it
acts without reference to any guiding principles. See In re A.B.P., 291 S.W.3d 91, 95 (Tex.
App.––Dallas 2009, no pet.). Further, the evidence is viewed in the light most favorable to the
trial court’s decision, and every legal presumption is indulged in favor of its judgment. Holley v.
Holley, 864 S.W.2d 703, 706 (Tex. App.––Houston [1st Dist.] 1993, writ denied). In family law
cases, insufficiency of the evidence is not an independent ground for asserting error, but is a
2
The trial court’s temporary orders are not properly before this Court. See TEX. FAM. CODE ANN. § 109.001(c) (“A temporary order
rendered under this section is not subject to interlocutory appeal.”); In re E.G.L., 378 S.W.3d 542, 549 (Tex. App.––Dallas 2012, pet. denied)
(temporary child custody orders are not appealable); Marcus v. Smith, 313 S.W.3d 408, 416 (Tex. App.––Houston [1st Dist.] 2009, orig.
proceeding) (stating that the court lacked jurisdiction over a direct appeal of award of appellate attorney’s fees under section 109.001); In re
Merriam, 228 S.W.3d 413, 415 (Tex. App.––Beaumont 2007, no pet.) (“The provision in section 109.001(c) prohibiting an interlocutory appeal
has been construed to mean that an appellate court lacks jurisdiction, in the pending appeal, over a complaint about the denial of a temporary
order rendered during the appeal.”); see also In re K.M., No. 02-04-044-CV, 2004 WL 2569384, at *8 (Tex. App.––Fort Worth Nov. 12, 2004,
pet. denied) (mem. op.). Accordingly, to the extent appellant is challenging the temporary orders issued in this case, we do not consider those
arguments. See In re E.G.L., 378 S.W.3d at 549.
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relevant factor in determining if the trial court abused its discretion. See id.; In re C.A.M., 243
S.W.3d 211, 220–21 (Tex. App.––Houston [14th Dist.] 2007, pet denied). To determine whether
the trial court abused its discretion we consider whether the trial court (1) had sufficient evidence
upon which to exercise its discretion and (2) erred in its exercise of that discretion. In re A.B.P.,
291 S.W.3d at 95.
The best interest of the child is always the primary consideration in determining issues of
conservatorship and possession of and access to a child. See TEX. FAM. CODE ANN. § 153.002.
Under section 156.101 of the Texas Family Code, a trial court may modify conservatorship of a
child if the modification is in the child’s best interest and the circumstances of the child, a
conservator, or other party affected by the existing conservatorship order have materially and
substantially changed since the rendition of the existing order, or the signing of a mediated or
collaborative settlement agreement on which the order is based. TEX. FAM. CODE ANN. §
156.101(1)(A), (B). To demonstrate that a material and substantial change of circumstances has
occurred, the evidence must show what conditions existed at the time of the entry of the prior
order as compared to the circumstances existing at the time of the hearing on the motion to
modify. See In re C.C.J., 244 S.W.3d 911, 919 (Tex. App.––Dallas 2008, no pet.). In other
words, “the record must contain both historical and current evidence of the relevant
circumstances,” otherwise “the court has nothing to compare and cannot determine whether a
change has occurred.” Zeifman v. Michels, 212 S.W.3d 582, 594 n.2 (Tex. App.––Austin 2006,
pet. denied).
In this case, appellant’s argument is that the trial court’s modification order is
“inappropriate and unworkable” and not in the best interest of the two children because Jasmine
Chupp was awarded only supervised visitation, and Bryan Chupp unsupervised visitation, yet
both parents were living together at the time the trial court signed the modification order. The
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trial court, however, was aware that the parents were living together because appellant so
testified at the July 24, 2012 hearing. We remain mindful that the trial court was in the best
position to observe the demeanor of the witnesses, evaluate their credibility, and determine what
weight to give to their testimony. See In re T, 715 S.W.2d at 418. “The mere fact that a trial
court may decide a matter within its discretionary authority in a different manner than an
appellate court in a similar circumstance does not demonstrate that an abuse of discretion has
occurred.” In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.––Houston [1st Dist.] 2002, pet. denied).
Based on the record in this case, we conclude the evidence is sufficient to support the trial
court’s exercise of its discretion to modify conservatorship. Accordingly, we cannot say the trial
court abused its discretion. We overrule appellant’s first issue.
2. Appellant’s Motion for New Trial
In her second issue, appellant argues the trial court abused its discretion by failing to
conduct a hearing on her motion for new trial that was based, in part, on newly discovered
evidence. Appellant’s motion for new trial described the newly discovered evidence as follows:
“Material evidence has been discovered showing that BRYAN CHUPP and JASMINE CHUPP
are living together at the home of the paternal grandparents.”
Whether to grant or deny a motion for new trial is generally a matter addressed to the
broad discretion of the trial court, and the trial court’s action will not be disturbed on appeal
absent an abuse of that discretion. Strong v. Strong, 350 S.W.3d 759, 772 (Tex. App.––Dallas
2011, pet. denied); Ricks v. Ricks, 169 S.W.3d 523, 526 (Tex. App.––Dallas 2005, no pet.).
Under this standard, we may not overrule the trial court’s decision unless the trial court acted in
an arbitrary or unreasonable manner, without reference to guiding rules or principles. Hinkle v.
Hinkle, 223 S.W.3d 773, 783 (Tex. App.––Dallas 2007, no pet.). There is generally no abuse of
discretion when there is some evidence to support the trial court’s decision. Id.
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When a motion alleges facts that, if true, would entitle the movant to a new trial, and
when a hearing is properly requested, the trial court is obligated to hear such evidence. Hensley
v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979); Neyland v. Raymond, 324 S.W.3d 646, 652–53
(Tex. App.––Fort Worth 2010, no pet.). To obtain a new trial based on newly discovered
evidence, the movant must show (1) that the evidence has come to his knowledge since the trial;
(2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is not
cumulative; and (4) that it is so material that it would probably produce a different result if a new
trial were granted. In re J.P., 365 S.W.3d 833, 836 (Tex. App.––Dallas 2012, no pet.); Strong,
350 S.W.3d at 771. “The due diligence requirement has not been met if the same diligence used
to obtain the evidence after trial would have had the same result if exercised before trial.”
Neyland, 324 S.W.3d at 652.
Appellant contends her motion for new trial was based on newly discovered evidence. In
her supporting affidavit, she stated:
After the hearing on July 24, 2012, I learned that Bryan Chupp and Jasmine
Chupp were and are still living together with my sister and brother-in-law at 1101
Gannon Lane, DeSoto, Texas 75115. Subsequently, I recently learned that Bryan
Chupp and Jasmine Chupp are planning to live together at 4727 Crownpoint
Circle, Dallas, Texas 75232 as of December 1, 2012.
However, as we stated earlier, appellant testified at the July 24, 2012 hearing that appellees were
living together at the residence of Bryan Chupp’s parents, the children’s paternal grandparents.
Appellant’s motion offered no explanation as to why the evidence cited in the affidavit was, in
fact, newly discovered, nor how, given appellant’s testimony, it came to light after the hearing.
Appellant likewise failed to show it was not owing to want of due diligence that this evidence
did not come her attention sooner. We conclude appellant failed to show that she was entitled to
a new trial. Accordingly, the trial court was not required to hold a hearing on the motion and it
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did not abuse its discretion by denying the motion without a hearing. We overrule appellant’s
second issue.
3. Findings of Fact and Conclusions of Law
In her third issue, appellant contends the trial court erred by not filing findings of fact and
conclusions of law as required by section 153.258 of the family code. See TEX. FAM. CODE ANN.
§ 153.258. Under section 153.258:
Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in all
cases in which possession of a child by a parent is contested and the possession of
the child varies from the standard possession order, on written request made or
filed with the court not later than 10 days after the date of the hearing or on oral
request made in open court during the hearing, the court shall state in the order the
specific reasons for the variance from the standard order.
Id.
In this case, appellant’s November 2, 2012 request for findings of fact and conclusions of
law was a request for findings and conclusions under rule 296 of the Texas Rules of Civil
Procedure. See TEX. R. CIV. P. 296 (request for findings of fact and conclusions of law “shall be
filed within twenty days after judgment is signed”). More specifically, it did not request the trial
court to set forth the reasons for varying from the standard possession order and cited rule 296,
not section 153.258. See TEX. FAM. CODE ANN. § 153.258. Accordingly, appellant’s request for
findings under rule 296 did not preserve a complaint regarding findings under section 153.258,
and the trial court was not required to enter findings under that section. See Moore v. Moore,
383 S.W.3d 190, 200 (Tex. App.––Dallas 2012, pet. denied) (appellant’s request for findings
under rule 296 did not preserve right to findings under section 6.711 of the family code); Beach
v. Beach, 05–05–01316–CV, 2007 WL 1765250, *8 (Tex. App.––Dallas June 20, 2007, no pet.)
(mem. op.) (appellant’s request for findings under rule 296 did not preserve his right to findings
under section 153.258 of the family code), disapproved on other grounds, Iliff v. Iliff, 339
S.W.3d 74 (Tex. 2011). We also note that even if we assume appellant made a proper request for
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findings of fact under rule 296, her complaint on appeal is not preserved because she did not file
notice of past-due findings. See TEX. R. CIV. P. 297; Ex parte Jackson, 132 S.W.3d 713, 717
(Tex. App.––Dallas 2004, no pet.); Am. Realty Trust, Inc. v. JDN Real Estate-McKinney, L.P., 74
S.W.3d 527, 529 (Tex. App.––Dallas 2002, pet. denied). 3 We overrule appellant’s third issue.
4. Residency Restriction
In her fourth issue, appellant argues the trial court abused its discretion by including the
following residency restriction in the October 15, 2012 modification order: “The Court orders
that, as long as the non-primary parent resides in Dallas County, the residence of the children are
restricted to Dallas County and counties contiguous to Dallas County, until further order of the
Court or by written agreement of the parties filed with the Court.” Appellant maintains that this
restriction was improper because no evidence or, alternatively, insufficient evidence, was
submitted to support it. Appellant cites no authority and makes no other arguments to support
her assertion.
The trial court appointed appellant the managing conservator of D.C. and L.C. Bryan and
Jasmine Chupp were appointed joint possessory conservators. Unless limited by court order, a
sole managing conservator has the exclusive right to designate the primary residence of a child.
TEX. FAM. CODE ANN. § 153.132(1); see In re M.M.M., 307 S.W.3d 846, 850 (Tex. App.––Fort
Worth 2010, no pet.). Nonetheless, a trial court has the discretion to impose a geographic
restriction on a party appointed sole managing conservator. See In re S.M.D., 329 S.W.3d 8, 22
(Tex. App.––San Antonio 2010, pet. denied); In re M.M.M., 307 S.W.3d at 850–53; In re A.S.,
298 S.W.3d 834, 836 (Tex. App.––Amarillo 2009, no pet.). “We perceive the purpose of
imposing a geographic residency restriction is to ensure those who have rights to possession of
3
Furthermore, appellant’s November 26, 2012 “Request for Findings in Child Support Order” and “Request for Findings in Possession
Order” both indicate they were based on the November 15, 2012 hearing on appellant’s motion for temporary orders pending appeal. The
temporary orders, as we stated earlier, are not properly before us. See TEX. FAM. CODE ANN. § 109.001(c); In re E.G.L., 378 S.W.3d at 549.
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the child are able to effectively exercise such rights.” In re S.M.D., 329 S.W.3d at 22; see White
v. Shannon, No. 14–09–00826–CV, 2010 WL 4216539, at *5 (Tex. App.––Houston [14th Dist.]
2010, no pet.) (mem. op.) (citing S.M.D., 329 S.W.3d at 22). “Also, it is the public policy of this
state to assure that a child will have frequent and continuing contact with parents who have
shown the ability to act in the child’s best interest; to provide a safe, stable, and nonviolent
environment for the child; and to encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their marriage.” In re M.M.M., 307
S.W.3d at 850. “The best interest of the child is always the primary consideration in resolving
issues of conservatorship, possession, and access concerning a child.” Id.
Based on the above authorities, the trial court had the discretion to restrict D.C. and
L.C.’s residence to “Dallas County and counties contiguous to Dallas County.” See, e.g., In re
S.M.D., 329 S.W.3d at 22. By restricting the children’s residence to Dallas County and counties
contiguous to Dallas County, the trial court was ensuring the parents would be able to exercise
their rights as joint possessory conservators. Appellant provides no authority and points to
nothing in the record to support its assertion that the trial court abused its discretion by imposing
the geographic residency restriction. See TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to
contain a clear and concise argument for the contentions made, with appropriate citations to
authorities and the record); Staton Holdings, Inc. v. Tatum L.L.C., 345 S.W.3d 729, 733 (Tex.
App.––Dallas 2011, pet. denied); see also Stucki v. Stucki, 222 S.W.3d 116, 123–24 (Tex. App.
––Tyler 2006, no pet.) (best interest of the child is primary concern in determining possession
and access to child and the trial court’s order establishing a geographic restriction will only be
reversed if the court abuses its discretion). We overrule appellant’s fourth issue.
5. The Record on Appeal
In her fifth issue, appellant contends the trial court abused its discretion by failing to have
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a reporter’s record made of “all of the hearings in this case.” Appellant alleges that no reporter’s
record was made of the July 27, 2010 hearing regarding the temporary orders that established
TDFPS’s conservatorship, the June 20, 2011 hearing that preceded the trial court’s December
2011 final order, a hearing that was allegedly held on October 15, 2012 (the day the court signed
the modification order), and the November 15, 2012 hearing on appellant’s motion for temporary
orders pending appeal.
Appellant bases her argument on section 105.003 of the Texas Family Code, which
requires that a record be made in all suits affecting the parent-child relationship “as in civil cases
generally unless waived by the parties with the consent of the court.” See TEX. FAM. CODE ANN.
§ 105.003(c); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (interpreting former section
11.14(d) of the family code, the predecessor to section 105.003). The statute places an
affirmative duty on the trial court to make a record of the proceedings, and failure to do so
constitutes error on the face of the record requiring reversal. Stubbs, 685 S.W.2d at 646; In re
D.J.M., 114 S.W.3d 637, 639 (Tex. App.––Fort Worth 2003, pet. denied); In re Vega, 10 S.W.3d
720, 722 (Tex. App.––Amarillo 1999, no pet.) (citing Rogers v. Rogers, 561 S.W.2d 172, 173
(Tex. 1978)). Making a record “means that all oral testimony must be recorded.” Stubbs, 685
S.W.2d at 645; but see Ramirez v. Sanchez, 871 S.W.2d 534, 535 (Tex. App.––San Antonio
1994, no writ) (noting that the pleadings, motions, and orders in that case, which did not record
oral testimony, were not records for purposes of 11.14(d), the predecessor to section 105.003(c)).
A party may waive the making of a record by express written agreement or by failing to object to
the lack of a record during the hearing. In re D.J.M., 114 S.W.3d at 639.
The notice of appeal filed by appellant states that the judgment or order being appealed
from is the trial court’s October 15, 2012 modification order, which was signed following the
hearing held on July 24, 2012. The reporter’s record of the July 24 hearing is part of the record
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of this appeal, as is the subsequent October 5, 2012 hearing where the trial court considered
appellant’s objections to the proposed order. As for the hearing held on October 15, 2012, and
not recorded, the record shows that, at the conclusion of the October 5 hearing, appellant’s trial
counsel asked, “If there are further objections or issues,” when they would be heard. The trial
court replied, “Those are going to be heard on the 15th.” But the trial court’s docket notes do not
contain any reference to a hearing held on October 15, 2012, and there is no indication in the
record that a hearing was actually held on that date. See Escobar v. Escobar, 711 S.W.2d 230,
232 (Tex. 1986) (“[d]ocket entries are some evidence of a rendered judgment and its contents”).
Additionally, appellant does not show what oral testimony pertinent to this appeal was not
recorded. See Stubbs, 685 S.W.2d at 645. Therefore, we overrule appellant’s fifth issue.
The trial court’s judgment is affirmed.
121574F.P05
/ Lana Myers/
LANA MYERS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF D.C. AND L.C., On Appeal from the 305th Judicial District
MINOR CHILDREN Court, Dallas County, Texas
Trial Court Cause No. JD-10-00462-X.
No. 05-12-01574-CV Opinion delivered by Justice Myers.
Justices Lang-Miers and Lewis participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees BRYAN CHUPP and JASMINE CHUPP recover
their costs of this appeal from appellant LINDA JANIE BORDNER.
Judgment entered this 9th day of May, 2014.
/Lana Myers/
LANA MYERS
JUSTICE
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