in the Interest of A.K.M., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00469-CV
IN THE INTEREST OF A.K.M.,
A CHILD
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant S.B. (Mother) appeals a final order in this suit affecting the
parent-child relationship. We will affirm.
II. BACKGROUND
Mother and Father dated but separated sometime around February 2006.
They are the parents of A.K.M., a male child born in May 2006.
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See Tex. R. App. P. 47.4.
Mother filed this lawsuit in October 2007, seeking to establish
conservatorship of A.K.M. and to receive child support from Father. The trial
court entered temporary orders in February 2008, appointing Mother and Father
temporary joint managing conservators of A.K.M., naming Mother the
conservator with the exclusive right to designate the primary residence of A.K.M.,
and ordering Father to pay child support. Little happened in the case until
October 2012, when the trial court modified the temporary orders and gave
Father the right to determine A.K.M.’s residence, ordered that Mother have no
periods of possession with A.K.M., and required Mother to pay Father monthly
child support. A final bench trial occurred approximately two months later, in
December 2012, and the trial court signed a final order in January 2013 that,
among other things, designated both Mother and Father joint managing
conservators of A.K.M., awarded Father the right to establish the primary
residence of A.K.M., and gave Mother a standard possession order that became
effective on January 1, 2013. Mother did not request findings of fact and
conclusions of law.
III. FATHER’S MOTION TO DISMISS
Father argues that we should dismiss this appeal for want of jurisdiction
because Mother did not file a notice of appeal after the trial court signed the final
order in January 2013, and a notice of appeal that Mother filed before the trial
court signed the final order was ineffective to vest this court with jurisdiction.
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Mother filed a notice of appeal on November 16, 2012, in an attempt to
challenge the trial court’s amended temporary orders. In December 2012, we
sent Mother a letter explaining that the appeal was subject to dismissal because
the order amending the temporary orders was neither a final judgment nor an
appealable interlocutory order. The letter, however, was not delivered to Mother
and was returned to the court. We then sent Mother a letter dated January 22,
2013, explaining that we had ―been informed by the trial court clerk that the trial
judge has not signed an order in this case, although [Mother] has informed us
that a final order was signed in the trial court.‖ We gave the parties an
opportunity ―to furnish this court [with] a signed copy of the order that appellant
seeks to appeal.‖ On March 6, 2013, the court notified the parties that it had
received the trial court’s January 18, 2013 final order but that it had not received
a docketing statement or the filing fee. The appeal proceeded.
Rule 27.1(a) provides that ―[i]n a civil case, a prematurely filed notice of
appeal is effective and deemed filed on the day of, but after, the event that
begins the period for perfecting the appeal.‖ Tex. R. App. P. 27.1(a). Here,
Mother filed a notice of appeal before the trial court signed the final order, but we
gave the parties an opportunity to provide the court with a final order, which we
ultimately received at some point before we sent the March 2013 letter to the
parties requesting a docketing statement and the filing fee. Thus, we considered
the defect in the record resolved. We recognize that Mother’s premature notice
of appeal sought to challenge the trial court’s amended temporary orders, not the
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final order, but the subject matter of the amended temporary orders is virtually
identical to the matters that the trial court ruled on at the final trial and that
Mother now challenges in this appeal—conservatorship, possession, and child
support. The supreme court has cautioned on several occasions that appellate
courts should not dismiss an appeal for a procedural defect when any arguable
interpretation of the rules of appellate procedure would preserve the appeal. See
Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011); Verburgt
v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Heeding that warning, we conclude
that, under these unique facts, an arguable interpretation of rule 27.1(a) exists
that Mother’s notice of appeal from the amended temporary orders altering
conservatorship, possession, and support was sufficient to vest this court with
jurisdiction over an appeal from the final order finally determining
conservatorship, possession, and support, once the trial court signed the final
order. Accordingly, we treat Mother’s notice of appeal as having been filed on
January 18, 2013, the date the judgment became final for purposes of appeal.
We deny Father’s motion to dismiss this appeal.2
IV. CONSERVATORSHIP, POSSESSION, AND SUPPORT OF A.K.M.
In her first issue, Mother complains of several decisions that the trial court
made regarding the conservatorship, possession, and support of A.K.M. We
2
Father also argues that Mother’s brief fails to comply with rules 9 and 38.
See Tex. R. App. P. 9, 38. We also deny Father’s motion to dismiss on that
basis.
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review those decisions for an abuse of discretion. In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);
Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.—Fort Worth 2012, no
pet.). A trial court abuses its discretion if it acts without reference to any guiding
rules or principles, that is, if the act is arbitrary or unreasonable.3 Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004).
Mother argues that the trial court abused its discretion by appointing
Father, instead of her, as the parent with the exclusive right to designate the
primary residence of A.K.M. because Father has a conviction for possession of
marijuana and was violent to Mother on several occasions.
―The best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship and possession of and
access to the child.‖ Tex. Fam. Code Ann. § 153.002 (West 2008). ―The court
may not appoint joint managing conservators if credible evidence is presented of
a history or pattern of past or present . . . physical . . . abuse by one parent
directed against the other parent.‖ Id. § 153.004(b) (West Supp. 2013).
Here, Father acknowledged that he ―had a problem with violence in the
past,‖ but he also testified that Mother assaulted him on multiple occasions
3
Legal and factual sufficiency are not independent grounds of error in
these contexts, but they are relevant factors in deciding whether the trial court
abused its discretion. Halleman, 379 S.W.3d at 447.
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during their relationship. Father also admitted that he had a conviction for
possession of marijuana, but Mother confirmed that she had two DWI
convictions, that she spent sixty-seven days in jail after being arrested in early
October 2012, and that she was convicted of assault-family violence on
December 3, 2012, only seventeen days before the final trial. The evidence also
showed that Mother is unemployed, that she is pregnant, and that CPS initiated
investigations against her at some point. As for A.K.M., Father testified that he
had seen ―[d]rastic changes‖ in him since taking possession of him in October
2012 and that A.K.M. has calmed down and is making good grades in school.
We hold that the trial court did not abuse its discretion by appointing Father as
the parent with the exclusive right to designate A.K.M.’s primary residence. We
overrule this part of Mother’s first issue.
In another part of her first issue, Mother argues that the trial court abused
its discretion by entering a standard possession order and by ordering that she
have no overnight possession of A.K.M. on December 22, 24, 28, and 30, 2012.
The family code establishes a rebuttable presumption that the standard
possession order provides reasonable minimum possession of a child for a
parent named as a joint managing conservator and is in the best interest of the
child. Id. § 153.252 (West 2008). Here, in addition to the testimony above about
Mother’s criminal record and lack of employment, her aunt testified that Mother
had moved between ten and fifteen times since A.K.M. was born, that the aunt
once picked up A.K.M. from Mother’s house after receiving a phone call from a
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stranger who was apparently watching A.K.M. and said that she had to leave,
and that the aunt had ―seen numerous men in [Mother’s] house.‖ Both Father
and Mother’s aunt said that they fear for the health, welfare, and safety of A.K.M.
when he is with Mother. As required by the family code, the final order provides
that the possession schedule applies in the event that Mother and Father are
unable to agree on the terms of possession; thus, Mother and Father may agree
to different terms of possession if they so choose. See id. § 153.311 (West
Supp. 2013). We hold that the trial court did not abuse its discretion by entering
a standard possession order and—to the extent that it is not moot—by limiting
A.K.M.’s overnight stays with Mother on the four occasions. We overrule this
part of Mother’s first issue.
In another part of her first issue, Mother argues that the trial court abused
its discretion by ordering her to pay Father child support. Mother testified at the
final trial that she ―would definitely be willing to support‖ A.K.M. if Father was
awarded greater possession of A.K.M. We hold that the trial court did not abuse
its discretion by ordering Mother to pay child support, and we overrule the
remainder of Mother’s first issue.
V. DRUG TEST
In her second issue, Mother argues that the trial court abused its discretion
by ordering her to take a drug test because she testified that she does not use
drugs and because Father is the one with the history of drug use (marijuana).
Mother told the trial court at the final trial that she was willing to undergo drug
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testing. That Father has a conviction for possession of marijuana does not
obviate Mother’s testimony that she agreed to a drug test. In light of this and the
remainder of the record, the trial court could have reasonably concluded that it
was in A.K.M.’s best interest to order Mother to take a drug test. We hold that
the trial court did not abuse its discretion by ordering Mother to take a drug test,
and we overrule her second issue.
VI. CONTINUANCE
In her third issue, Mother argues that the trial court abused its discretion by
denying the oral motion for continuance that she made at the outset of the final
trial. If a motion for continuance does not comply with rule of civil procedure 251,
it will be presumed that the trial court did not abuse its discretion by denying the
motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Rule 251 requires
the motion to be ―supported by affidavit.‖ See Tex. R. Civ. P. 251. Mother’s oral
motion for continuance therefore did not comply with rule 251. We overrule her
third issue.
VII. CONCLUSION
Having overruled all of Mother’s issues, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: December 12, 2013
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