Ralph O. Douglas v. Peaches Cross, et al--Appeal from 87th District Court of Anderson County

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State: Texas

Court: Texas Northern District Court

Docket No: 12-03-00053-CV

Case Date: 11/24/2004

Plaintiff: Ralph O. Douglas

Defendant: Peaches Cross, et al--Appeal from 87th District Court of Anderson County

Preview:In the Interest of Z.A.T., K.M.T. & K.O.T., Children--
Appeal from 170th District Court of McLennan County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-04-00347-CV
In the Interest of
Z.A.T., K.M.T. & K.O.T., Children
From the 170th District Court
McLennan County, Texas
Trial Court No. 99-2937-4
LEAD Opinion
Appellant Richard Owen Taylor complains of the trial court s order modifying the provisions of a divorce decree
regarding Appellee Valerie Annette Taylor s and his parental rights and duties. Richard presents twenty-four issues in
which he generally contends: (1) the court abused its discretion by denying his request for a jury trial; (2) the court
abused its discretion by denying his motion to order Valerie to bring the children to the trial and by denying him a
continuance due to the absence of a witness; (3) the court abused its discretion by limiting his impeachment of Valerie
and by excluding certain evidence; (4) there is no evidence or factually insufficient evidence to support the court s
findings of fact and the court s conclusions of law are erroneous; (5) the court abused its discretion by modifying the
parties parental rights and duties in the manner it did; and (6) the court abused its discretion by denying his motion for
new trial. The judgment will be affirmed.
Background
Richard s and Valerie s divorce decree was rendered in December 2002. At the time, Richard was imprisoned, and he
remains so under a forty-year sentence. The decree named Valerie as sole managing conservator of their three children
and named Richard as possessory conservator. The decree gave each of them the standard rights and duties attendant
to his or her respective conservator status. However, the decree recognized that Richard could not currently exercise
some of his rights because of his incarceration. Thus, the decree also provided that many of Richard s possessory rights
would commence thirty days after his release.
Richard has filed numerous pleadings and instituted numerous proceedings (both before and after the final divorce
decree) with respect to his parental and custodial rights. See In re Taylor, 28 S.W.3d 240 (Tex. App. Waco 2000, orig.
proceeding); In re Taylor, 39 S.W.3d 406 (Tex. App. Waco 2001, orig. proceeding); In re Taylor, 45 S.W.3d 357 (Tex.
App. Waco 2001, orig. proceeding); Taylor v. Taylor, 63 S.W.3d 93 (Tex. App. Waco 2001, no pet.); In re Taylor, 110
S.W.3d 67 (Tex. App. Waco 2003, orig. proceeding) (per curiam).
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This appeal concerns Richard s petition to modify the conservatorship provisions of the decree. Among other things,
Richard seeks: (1) more notice of activities in which the children are involved; (2) more information about physicians
and other caregivers; (3) more involvement in making decisions regarding the children s well-being; (4) more prompt
notice of emergencies and of the children s activities; (5) to have his parents named possessory conservators; (6) to
restrict the children s residence to McLennan County; and (7) a permanent injunction prohibiting Valerie and others
from contacting the Department of Criminal Justice, Institutional Division, or the Board of Pardons and Paroles
regarding any alleged misconduct on his part.
Valerie filed a competing petition to modify the decree. She asked that Richard s rights be limited to prevent further
abuse of the court system by his vexatious litigation. She requested a permanent injunction prohibiting Richard or
anyone acting in his behalf from removing the children from McLennan County and from communicating with Valerie
or the children other than through her attorney or some other designated person.
After a hearing, the court granted Valerie s petition and denied Richard s. Richard s parents informed the court in a
letter that they would not pursue possessory conservatorship.
Modification of Decree
Richard contends in his nineteenth through twenty-second issues that the court abused its discretion by granting
Valerie s petition and denying his own. He contends in his twelfth through eighteenth issues that there is no evidence
or factually insufficient evidence to support twenty-two of the court s findings of fact and conclusions of law. He
contends in his twenty-third issue that there is no evidence or factually insufficient evidence to support the modification
order.
A trial court has broad discretion in child custody matters. Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam);
In re J.R.P., 55 S.W.3d 147, 151 (Tex. App. Corpus Christi 2001, pet. denied). Thus, we review child custody orders
under an abuse-of-discretion standard. See In re T.J.S., 71 S.W.3d 452, 458 (Tex. App. Waco 2002, pet. denied);
J.R.P., 55 S.W.3d at 151.
We do not conduct an independent review of findings of fact in a child custody case under traditional legal and factual
sufficiency standards. See In re J.C.K., 143 S.W.3d 131, 135 (Tex. App. Waco 2004, no pet.); London v. London, 94
S.W.3d 139, 143-44 (Tex. App. Houston [14th Dist.] 2002, no pet.); cf. Norris v. Norris, 56 S.W.3d 333, 338 (Tex.
App. El Paso 2001, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining
whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44; accord
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
In re A.C.S., 157 S.W.3d 9, 20 (Tex. App. Waco 2004, no pet.).
Section 156.101(1) of the Family Code[1] provides:
The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms
and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be
in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially
changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.
Tex. Fam. Code Ann. 156.101(1) (Vernon Supp. 2005).
There was no settlement in this case, so the two relevant issues are: (1) whether the requested modifications would be
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in the best interest of the children; and (2) whether there has been a material change of circumstances since the
rendition of the divorce decree.
Richard concedes in his brief that the circumstances of a child or one or both of the conservators have materially and
substantially changed since the divorce and that the only disputed issue is whether the modification is in the best
interest of the children.
Valerie s petition alleges that limiting Richard s rights and duties would be in the best interest of the children, and the
court so found.[2] From Valerie s and Richard s testimony, the court could conclude that the provisions of the divorce
decree imposed an unreasonable hardship on Valerie and the children, particularly in the manner in which Richard
insisted that Valerie comply with those provisions. Richard conceded on cross-examination that he has continually
used the rights and duties of the parent in order to launch lawsuit after lawsuit against Valerie.
Factors which may be considered in deciding what is in the best interest of a child include:
(1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the
emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals
involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for
the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the
parent.
A.C.S., 157 S.W.3d at 24 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re C.R.O., 96 S.W.3d 442,
451 (Tex. App. Amarillo 2002, pet. denied); Bates v. Tesar, 81 S.W.3d 411, 434 (Tex. App. El Paso 2002, no pet.)).
A child s best interest cannot be determined in a vacuum. Although consideration of the visitation rights of the
noncustodial parent is important, we must primarily concentrate on the general quality of life for both the child and the
custodial parent in assessing whether a change is positive and in the child s best interest.
Id.at 24-25 (quoting Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex. App. Austin 2002, no pet.)).
When the evidence is viewed in light of these considerations, I conclude that there is some evidence and factually
sufficient evidence to support the court s determination that the modifications would be in the best interest of the
children. Thus, it cannot be said that the court abused its discretion by modifying the decree as it did. Accordingly,
Richard s nineteenth through twenty-third issues are overruled.
There is no need to address Richard s twelfth through eighteenth issues, which challenge twenty-two of the court s
findings of fact and conclusions of law, because the legal and factual sufficiency of the evidence was considered in
determining whether the court abused its discretion in modifying the divorce decree. See A.C.S., 157 S.W.3d at 20.
Jury Trial
Richard contends in his first issue that the court erred by denying his request for a jury trial. He complains that he was
improperly denied a jury on the issues of: 1) whether deleting and removing the rights and privileges of Appellant
would be a positive improvement for the children; 2) whether specifying the rights and privileges of Appellant would
be a positive improvement for the children; 3) whether modifying the possession of and access rights would be a
positive improvement for the children; and 4) whether the residence of the children should be restricted.
The denial of a jury request is reviewed under an abuse-of-discretion standard. Mercedes-Benz Credit Corp. v. Rhyne,
925 S.W.2d 664, 666 (Tex. 1996); Taylor, 63 S.W.3d at 101. In so doing, the entire record is reviewed to determine
whether the denial is arbitrary, unreasonable, and without reference to guiding principles. Id.
The version of section 105.002 of the Family Code applicable to this case[3] provides in pertinent part:
(c) In a jury trial:
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(1) a party is entitled to a verdict by the jury on the issues of:
(A) the appointment of a managing conservator;
(B) the appointment of joint managing conservators;
(C) the appointment of a possessory conservator; and
(D) the determination of the primary residence of the child;
(2) a party is not entitled to a jury verdict on the issues of:
(A) child support;
(B) a specific term or condition of possession of or access to the child; or
(C) any right or duty of a possessory or managing conservator, other than the issue of primary residence determined
under Subdivision (1)(D).
(3) the court may submit to the jury an issue described by Subdivision (2).
(d) The court may not contravene a jury verdict on an issue submitted under Subsection (c)(1). A jury verdict on an
issue submitted under Subsection (c)(3) is advisory only.
Act of May 8, 1997, 75th Leg., R.S., ch. 180, 1, 1997 Tex. Gen. Laws 1033, 1033-34 (amended 2003) (current version
at Tex. Fam. Code Ann. 105.002(c) (Vernon Supp. 2005)) (hereinafter, section 105.002 ).
As Richard concedes in his brief, only an advisory jury verdict would be permitted for most of the issues on which he
contends he was entitled to a jury, because these issues involve either (1) the terms and conditions of possession of or
access to the children or (2) the parties respective rights and duties. Id. It is not reversible error to deny a jury request
on issues for which the jury s verdict would be only advisory. See Martin v. Martin, 776 S.W.3d 572, 575 (Tex. 1989);
In re Marriage of Richards, 991 S.W.2d 32, 36 (Tex. App. Amarillo 1999, pet. dism d).
Only his request that the children s primary residence be restricted to McLennan County is included within the matters
for which a party may obtain a binding[4] jury verdict under section 105.002. See In re D.R.S., 138 S.W.3d 467, 470-
71 (Tex. App. Houston [14th Dist.] 2004, pet. denied). Because the court denied Richard s request for a jury trial and
because Richard s request for a restriction on the children s primary residence is an issue for which a binding jury
verdict may be obtained under section 105.002, I conclude that the court abused its discretion by denying Richard s
jury request. See In re Shaftner, 900 S.W.2d 439, 441-42 (Tex. App. Texarkana 1995, no writ).
Nevertheless, this error does not require reversal if the record shows that no material issues of fact exist and an
instructed verdict would have been justified. Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991) (per curiam);
Taylor, 63 S.W.3d at 101.
The only evidence offered in the hearing pertinent to the issue of the children s primary residence was presented during
the cross-examination of Richard by Valerie s counsel. Richard testified that any move by Valerie (and the children)
would limit his reasonable contact with the children because, if she moved, he would have no way to contact any
officials regarding information with the children. [5] As Valerie s counsel observed (but Richard disputed) however,
any limitations on Richard s contacts with officials would not equate to limitations on his contacts with the children.
Accordingly, I conclude that Richard presented no evidence to justify a restriction on the children s primary residence.
Because he presented no evidence on this issue, the improper denial of his request for a jury trial does not require
reversal. See Halsell, 810 S.W.2d at 372; Taylor, 63 S.W.3d at 101. Thus, Richard s first issue is overruled.
The Children s Failure to Appear as Witnesses
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Richard contends in his second issue that the court abused its discretion by denying his pretrial motion to require
[Valerie] to bring the children to [the modification hearing]. [6] He contends in his third issue that the court s exclusion
of the children s testimony violated his right to due process.
Richard did not request the issuance of subpoenas to compel his children s presence at the hearing. I believe this is
fatal to his contention.
Rule of Civil Procedure 176.8 provides:
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be
deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the
subpoena is served, and may be punished by fine or confinement, or both.
(b) Proof of Payment of Fees Required for Fine or Attachment. A fine may not be imposed, nor a person served with a
subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the
subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
Tex. R. Civ. P. 176.8.
If a witness who has been subpoenaed fails to appear for trial, the trial court may issue a writ of attachment to compel
his attendance. See id. 176.8(b). However, if a proposed witness was not subpoenaed by the party seeking to present
his testimony, it would be improper for a court to issue a writ of attachment. See Thompson v. Thompson, 380 S.W.2d
632, 639 (Tex. Civ. App. Fort Worth 1964, no writ); see also Fritsch v. J.M. English Truck Line, Inc., 151 Tex. 168,
246 S.W.2d 856, 859 (1952) ( If parties choose to forego their rights under [the Rules of Civil Procedure] and resort to
other and less effective and less certain means of procuring the testimony of material witnesses they must be held to do
so at their own risk and with foreknowledge that they may be put to trial without the benefit of the testimony. ).
A subpoena is the proper means to secure the attendance of a witness for trial. If the witness fails to comply, then the
trial court may issue a writ of attachment to compel the witness s attendance.[7] Parties who fail to follow these
procedures do so at their own risk and with foreknowledge that they may be put to trial without the benefit of the
testimony. See Fritsch, 246 S.W.2d at 859.
The difficulty here is that there is no statute or rule which provides for the issuance of a subpoena for a child to testify
in a civil trial. The Code of Criminal Procedure expressly provides for the subpoena of a child witness by a subpoena
directing a person having custody, care, or control of the child to produce the child in court. See Tex. Code Crim. Proc.
Ann. art. 24.011(a) (Vernon Supp. 2005). The Juvenile Justice Code has a similar provision for summonses. See Tex.
Fam. Code Ann. 53.06(c) (Vernon 2002). There is no comparable provision for civil trials generally or for suits
affecting the parent-child relationship specifically.
Under the Rules of Evidence, children who possess sufficient intellect to relate transactions with respect to which they
are interrogated are certainly persons who may testify in civil proceedings. See Tex. R. Evid. 601(a). Rule of Civil
Procedure 176.2(a) authorizes a civil litigant to obtain a subpoena commanding a person to attend and give testimony
at a deposition, hearing, or trial. Tex. R. Civ. P. 176.2(a).
I recognize that there are potential drawbacks to requiring the issuance of subpoenas for child witnesses. The issuance
of a subpoena for a child in a child custody proceeding may likely not be conducive to the betterment of the
relationship between the parents or between the subpoenaed child and the parent who seeks his or her testimony. There
is a risk of abuse in the use of such subpoenas, particularly in suits affecting the parent-child relationship.
Nevertheless, the law does not provide another means by which a parent may compel his or her child s testimony. Nor
is there reason to believe that an inappropriate subpoena cannot be quashed, a protective order obtained, or appropriate
sanctions rendered where necessary or advisable. See Tex. R. Civ. P. 176.6(d), (e), (f).
Had Richard previously subpoenaed his children, the trial court would have been empowered to issue writs of
attachment compelling their attendance if they failed to appear. However, because Richard did not subpoena his
children, I cannot say that the court abused its discretion by denying Richard s motion to require Valerie to bring the
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children to the hearing. Cf. Thompson, 380 S.W.2d at 639.
The availability of subpoenas for the children provided Richard due process. See Brooks v. Klevenhagen, 807 S.W.2d
777, 779 (Tex. App. Houston [14th Dist.] 1991, no writ).
Accordingly, Richard s second and third issues are overruled.
Denial of Continuance
Richard contends in his fourth and fifth issues respectively that the court abused its discretion by denying his oral
motion for continuance premised on the absence of a witness and that the denial of the motion violated his right to due
process.
The denial of a continuance motion is reviewed under an abuse-of-discretion standard. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 161 (Tex. 2004). If a continuance motion does not comply with Rule of Civil Procedure
251, it will be presumed that the court did not abuse its discretion by denying the motion. See Villegas v. Carter, 711
S.W.2d 624, 626 (Tex. 1986); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.
Tyler 2000, pet. denied).
Richard s oral continuance motion did not comply with Rule 251, which requires that a continuance motion be
supported by affidavit. Tex. R. Civ. P. 251. Accordingly, no abuse of discretion is shown. See Villegas, 711 S.W.2d at
626; Phifer, 45 S.W.3d at 173.
Richard s failure to take advantage of the available procedures for obtaining a continuance does not equate to a denial
of due process. See Brooks, 807 S.W.2d at 779.
Accordingly, his fourth and fifth issues are overruled.
Impeachment of Valerie
Richard contends in his sixth and seventh issues respectively that the court abused its discretion by refusing to permit
him to impeach Valerie (1) with prior inconsistent statements and (2) about her opinion of him as a father. He
contends in his eighth issue that these limitations on his examination of Valerie violated his right to due process.
A court s evidentiary rulings are reviewed under an abuse-of-discretion standard. See Exxon Pipeline Co. v. Zwahr, 88
S.W.3d 623, 629 (Tex. 2002); In re Estate of Robinson, 140 S.W.3d 782, 790 (Tex. App. Corpus Christi 2004, pet.
denied).
Rule of Evidence 613(a), which governs the impeachment of a witness with a prior inconsistent statement, provides:
In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and
before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness
must be told the contents of such statement and the time and place and the person to whom it was made, and must be
afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at
that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having
made such statement, extrinsic evidence of same shall not be admitted.
Tex. R. Evid. 613(a).
Rule 613(a) provides the predicate which must be established before a witness may be impeached with a prior
inconsistent statement. See In re A.B., 133 S.W.3d 869, 874 (Tex. App. Dallas 2004, no pet.); Downen v. Texas Gulf
Shrimp Co., 846 S.W.2d 506, 512 (Tex. App. Corpus Christi 1993, writ denied).
Here, Richard asked Valerie whether she had testified in a prior hearing that the divorce decree required her to provide
him with the daycare officials, school officials, and medical officials information. Valerie confirmed that she had so
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testified. Richard then asked Valerie whether she had provided this information to him, and she testified that she
had.[8] Richard did not ask Valerie whether she had testified in the prior hearing that she had not provided the
information to him.
Instead, Richard advised the court that he would like to go over [Valerie s] testimony regarding that matter. The court
responded that a transcript of the prior hearing was not available and that Richard did not need to be going over things
we ve already gone over. Richard replied that Valerie was now changing her testimony.
Richard never told Valerie of the contents of her alleged prior inconsistent testimony and never afforded her an
opportunity to explain or deny such testimony. See Tex. R. Evid. 613(a); A.B., 133 S.W.3d at 874; Downen, 846
S.W.2d at 512. Because Richard did not lay a proper predicate to impeach Valerie with her alleged prior inconsistent
testimony, the court did not abuse its discretion by denying Richard s request to go over [Valerie s] testimony
regarding that matter. Id. Accordingly, we overrule Richard s sixth issue.
Valerie s counsel asked her to give her opinion of Richard as a father before his incarceration. She responded that
Richard had nine affairs before his incarceration, that they were impoverished, that they had no stable home, and that
at times they did not have water available to make formula for their infant twins. Richard did not object to this
testimony.
Richard then sought to ask Valerie about her involvement in the alleged affairs. Valerie s counsel objected that the
issue was irrelevant because it involved circumstances existing before the entry of the decree sought to be modified.
The court sustained the objection.
[E]vidence regarding changed circumstances is generally relevant only insofar as it reflects a change of circumstances
occurring after the date of rendition of the decree sought to be modified. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex.
App. Waco 2000, pet. denied). Thus, it cannot be said that the court abused its discretion by disallowing this line of
questioning.
Nevertheless, Richard notes that the court made an express finding[9] consistent with Valerie s testimony that he had
numerous affairs during their marriage. However, because evidence of circumstances before the date of the divorce
decree is not generally relevant, this finding is immaterial and should be disregarded. See S.E. Pipeline Co. v.
Tichacek, 997 S.W.2d 166, 172 (Tex. 1999); Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 216 (Tex. App.
Houston [14th Dist.] 2001, pet. denied). Accordingly, Richard s seventh issue is overruled.
Richard also contends that these evidentiary rulings operated to violate his right to due process. We disagree. Rule
613(a) specifies the procedures to follow to impeach a witness with prior inconsistent testimony, and Richard did not
follow them. See Brooks, 807 S.W.2d at 779. A litigant s constitutional right to due process does not accord him a
right to the admission of irrelevant evidence. See Darnes v. State, 118 S.W.3d 916, 919-20 (Tex. App. Amarillo 2003,
pet. ref d). Accordingly, Richard s eighth issue is overruled.
Exclusion of Evidence
Richard contends in his ninth and tenth issues respectively that the court abused its discretion by excluding evidence
regarding prior litigation and evidence regarding a CPS report against [Valerie]. He contends in his eleventh issue that
the exclusion of this evidence violated his right to due process.
Valerie alleged that Richard had engaged in harassing litigation since the divorce. Under examination by Valerie s
counsel, Richard denied that he has pursued this litigation to harass Valerie. Counsel reminded Richard that the
litigation had been going on for five years. Richard then attempted to testify about the history of the litigation,
beginning with the first proceeding. The court sustained counsel s objection as follows:
I will sustain the objection. Also, I don t need ya ll I mean, the file speaks for itself. It s a 23-page docket and 56
volumes of files. I don t need you arguing over what part of it was relevant and not relevant. Just move on.
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We perceive no abuse of discretion in this ruling. Accordingly, we overrule Richard s ninth issue.
Richard also sought to introduce evidence of an investigation of Valerie conducted by Child Protective Services in
2001. However, because this is evidence of circumstances before the entry of the divorce decree, it cannot be said that
the court abused its discretion by excluding it. See C.Q.T.M., 25 S.W.3d at 735. Accordingly, Richard s tenth issue is
overruled.
Because the court did not abuse its discretion in excluding the evidence addressed in Richard s ninth and tenth issues,
no due process violation is shown. See Darnes, 118 S.W.3d at 919-20. Accordingly, Richard s eleventh issue is
overruled.
Motion for New Trial
Richard contends in his twenty-fourth issue that the court abused its discretion by allowing his motion for new trial to
be overruled by operation of law.
Rule of Civil Procedure 321 requires a motion for new trial to briefly refer to that part of the . . . admission or rejection
of evidence . . . which [is] designated to be complained of, in such a way that the objection can be clearly identified
and understood by the court. Tex. R. Civ. P. 321. Rule 322 explains that [g]rounds of objections couched in general
terms as that the court erred . . . in excluding or admitting evidence . . . shall not be considered by the court. Id. 322.
Seven of the grounds raised in Richard s motion for new trial concern issues already addressed hereinabove. Because
no error requiring reversal has been found with regard to the issues already addressed, the court did not abuse its
discretion in permitting Richard s motion for new trial to be overruled by operation of law with respect to these issues.
The other six grounds concern the exclusion of evidence. Some of these have been addressed hereinabove. However,
Richard s motion for new trial does not specify the particular evidence which he contends was erroneously excluded.
Rather, the motion alleges, for example, Petitioner s right to due process was violated in that Petitioner was not
permitted to introduce newly discovered evidence capable of meeting Petitioner s burden of proof for restricting the
residence of Respondent.
Such general references to the alleged erroneous exclusion of evidence, which do not inform the trial court as to what
the excluded evidence was, do not satisfy the requirements of Rules 321 and 322. See Gerdes v. Kennamer, 155
S.W.3d 523, 532 (Tex. App. Corpus Christi 2004, pet. denied). Accordingly, it cannot be said that the court abused its
discretion by allowing Richard s motion for new trial to be overruled by operation of law. Thus, his twenty-fourth
issue is overruled.
The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurring in the judgment with a separate opinion)
(Justice Vance dissenting)
Affirmed
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Opinion delivered and filed April 5, 2006
[CV06]
[1] The Legislature amended section 156.101 in 2003, effective September 1, after Richard filed this modification
proceeding. However, the amended version of the statute (which is the current version) applies to all actions pending
on the effective date. See Act of May 27, 2003, 78th Leg., R.S., ch. 1036, 23(g), 2003 Tex. Gen. Laws 2987, 2994.
[2] See Findings of Fact Nos. 6 and 7.
[3] Unlike the 2003 amendment to the modification statute (which applies to actions pending on or filed on or after
September 1, 2003), the 2003 amendment to the jury statute applies only to actions filed on or after September 1, 2003.
See Act of May 27, 2003, 78th Leg., R.S., ch. 1036, 23(c), 2003 Tex. Gen. Laws 2987, 2994. Thus, the former version
of section 105.002 applies here.
[4] The term binding is used in contrast with the term advisory. Although a trial court may not disregard binding jury
findings under section 105.002(c), the court may (if warranted by the evidence) grant a directed verdict before the jury
s verdict is rendered or a new trial afterward. See Fambro v. Fambro, 635 S.W.2d 945, 947 (Tex. App. Fort Worth
1982, no writ); T.A.B. v. W.L.B., 598 S.W.2d 936, 938 (Tex. App. El Paso), writ ref d n.r.e., 606 S.W.2d 695 (Tex.
1980) (per curiam).
[5] This contention apparently relates back to Richard s claim that Valerie does not provide him timely or adequate
notice of the children s activities, etc.
[6] This is how Richard characterizes the motion in his brief. The motion is entitled, Petitioner s Motion for Children s
Attendance at Trial.
[7] The dissent characterizes Richard s motion as a request that the trial court issue subpoenas compelling Valerie to
bring the children to the hearing. I believe the motion is more appropriately characterized as one requesting the court
to issue a writ of attachment compelling the children s attendance.
[8] Richard says in his brief that Valerie testified that she did provide [him] with the names, addresses and telephone
numbers of the children s school, dental, medical and daycare officials. However, this mischaracterizes her testimony.
Valerie testified only that she provided him information about daycare officials, school officials, and medical officials.
[9] Finding of Fact No. 37.
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