ADOPTION BY ESTOPPEL - ADOPTION WITHOUT FORMALITIES & COURT ORDER
Adoption by estoppel is a remedy applied when efforts to adopt are ineffective because of failure to strictly comply with statutory adoption procedures or because, out of neglect or design, an agreement to adopt is not performed. See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 973-74 (1951); Luna v. Estate of Rodriguez, 906 S.W.2d 576, 579-80 (Tex. App.—Austin 1995, no writ).
Parties who live in a parent-child relationship based on an unperformed agreement to adopt the child do not create the legal status of a parent and child, but a parent’s promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent’s estate. See Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963). The burden is on the proponent to establish the existence of the equitable adoption by a preponderance of the evidence. Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978). An agreement to adopt between the parties, i.e., between the adoptive parent and the child, or between the adoptive parent and the natural parent, must exist before the trial court may apply the equitable doctrine of adoption by estoppel. Cavanaugh, 235 S.W.2d at 974; In re Estate of Castaneda, 687 S.W.2d 465, 466 (Tex. App.—San Antonio 1985, no writ). Proof of the agreement does not require direct evidence; circumstantial evidence will suffice where it is clear, convincing, and unequivocal. Cavanaugh, 235 S.W.2d at 975, 978.
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00011-CV - 10/12/11
After reviewing the evidence presented in favor of the probate court’s finding, we conclude it was legally sufficient to support the finding that there was no agreement by Whiting to adopt Summer. Of the eight witnesses who testified, not one stated that Whiting agreed to adopt Summer. There is no evidence that a formal adoption proceeding was ever contemplated by Whiting, nor is there evidence that Whiting made an express promise to adopt Summer. Although all of the witnesses testified to the loving “father-daughter” relationship between Whiting and Summer, emotional bonds do not impute the legal bond of adoption absent evidence of an agreement to adopt. See Johnson v. Chandler, No. 14-03-00123-CV, 2004 WL 1946077,
at *4 (Tex. App.—Houston [14th Dist.] Sept. 2, 2004, no pet.) (mem. op.); Acevedo v. Acevedo, No. 03-03-00309-CV, 2004 WL 635321, at *3 (Tex. App.—Austin Apr. 1, 2004, no pet.) (mem. op.); see also Estate of Castaneda, 687 S.W.2d at 466 (fact that alleged adoptive father supported appellants and referred to them as his children was insufficient to establish an adoption by estoppel absent evidence of an agreement or promise to adopt). Accordingly, we hold the evidence was legally sufficient to support the finding.
Thursday, October 13, 2011
Wednesday, October 12, 2011
Modification of temporary order without notice undone by court of appeals in mandamus proceeding
EXCERPT OF OPINION BY JUSTICE BARNARD - SAN ANTONIO COURT OF APPEALS
In a suit affecting the parent-child relationship, the trial court may make a temporary order for the safety and welfare of the child, including an order modifying a prior temporary order. TEX. FAM. CODE ANN. § 105.001(a) (West 2008). A temporary order for the conservatorship of the child may not be rendered without notice and a hearing. TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730.
The challenged order in the underlying proceeding is an order modifying a prior temporary order. See TEX. FAM. CODE ANN. § 105.001(a). Therefore, Michelle was entitled to notice and an adversary hearing before the entry of a new temporary order modifying the custody of K.R.A. See TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. The parties agree that the only motion set for the hearing on August 30, 2011 was the reconsideration of the motion to strike Michelle’s plea in intervention. Nicole did not file and serve on Michelle any pleading asking the court to give her temporary custody. Also, there is nothing in the record suggesting the new temporary order was prompted by an emergency.
However, Nicole and Judge Arteaga each contend in their responses to this court that because Michelle’s motion for reconsideration of the motion to strike Michelle’s plea in intervention was set for a hearing, Michelle was on notice that the temporary orders could be modified, and, therefore, she should have been prepared for such a hearing. However, notice of the motion for reconsideration of the motion to strike Michelle’s plea in intervention did not confer on Michelle notice of the modification of temporary orders. First, the motion to reconsider was not ruled on at the hearing; therefore, there was no immediate reason to enter new temporary orders removing K.R.A. from Michelle’s home. Also, even if the trial court had granted the motion for reconsideration and struck Michelle’s plea in intervention, she would not be testifying or seeking any relief in the form of a modified temporary order because she would no longer be a party to the case. Therefore, she would have no reason to object to the lack of notice. Based on the foregoing, we do not find merit to Nicole and Judge Arteaga’s argument that by virtue of the motion to reconsider the motion to strike Michelle’s intervention pending before the trial court that Michelle was on notice that a modification of the temporary orders was before the trial court.
Judge Arteaga further contends Michelle failed to preserve her complaint because her conclusory and general statement that she needed more time and would like to call witnesses was insufficient to put the trial court in the position of having adequate facts to address relator’s complaint. However, the record clearly reveals Michelle objected to the lack of notice and hearing regarding the temporary orders. When Judge Arteaga first informed the parties she would be considering sua sponte whether to modify the temporary orders, Michelle’s counsel responded, “Judge, there’s no motion for temporary orders on file. We have no notice and that would be a very real violation to my client’s right to due process - - to conduct a temporary orders hearing today. . . . There’s nothing in there about temporary orders. We’re not ready for that. . . .We are not prepared to proceed on that today.” Counsel later reiterated, “We are not ready. We have received no notice. We have no witnesses.” Clearly, the record reveals Michelle objected to the lack of notice and a proper hearing regarding the modification of temporary orders.
Finally, Judge Arteaga contends Michelle was afforded the opportunity to present evidence, and chose not to. However, without having notice that the existing temporary orders would be modified, Michelle was clearly not prepared to present such evidence regarding the safety and welfare of the child and to rebut Nicole’s testimony in response to Judge Arteaga’s questions. See TEX. FAM. CODE ANN. § 105.001(a), (b).
As a result of the foregoing, we conclude the trial court abused its discretion in failing to provide Michelle with notice prior to modifying the existing temporary orders. See TEX. FAM.
CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. Accordingly, we do not find it necessary to address Michelle’s remaining issues presented to this court.
CONCLUSION
Based on the foregoing analysis, we hold the trial court clearly abused its discretion in modifying the existing temporary orders without notice and a hearing. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the August 30, 2011 order modifying the existing temporary orders. The writ will issue only if the trial court fails to comply within fourteen days.
Marialyn Barnard, Justice
SAN ANTONIO COURT OF APPEALS - 04-11-00641-CV - DECIDED 10/12/2011
In a suit affecting the parent-child relationship, the trial court may make a temporary order for the safety and welfare of the child, including an order modifying a prior temporary order. TEX. FAM. CODE ANN. § 105.001(a) (West 2008). A temporary order for the conservatorship of the child may not be rendered without notice and a hearing. TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730.
The challenged order in the underlying proceeding is an order modifying a prior temporary order. See TEX. FAM. CODE ANN. § 105.001(a). Therefore, Michelle was entitled to notice and an adversary hearing before the entry of a new temporary order modifying the custody of K.R.A. See TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. The parties agree that the only motion set for the hearing on August 30, 2011 was the reconsideration of the motion to strike Michelle’s plea in intervention. Nicole did not file and serve on Michelle any pleading asking the court to give her temporary custody. Also, there is nothing in the record suggesting the new temporary order was prompted by an emergency.
However, Nicole and Judge Arteaga each contend in their responses to this court that because Michelle’s motion for reconsideration of the motion to strike Michelle’s plea in intervention was set for a hearing, Michelle was on notice that the temporary orders could be modified, and, therefore, she should have been prepared for such a hearing. However, notice of the motion for reconsideration of the motion to strike Michelle’s plea in intervention did not confer on Michelle notice of the modification of temporary orders. First, the motion to reconsider was not ruled on at the hearing; therefore, there was no immediate reason to enter new temporary orders removing K.R.A. from Michelle’s home. Also, even if the trial court had granted the motion for reconsideration and struck Michelle’s plea in intervention, she would not be testifying or seeking any relief in the form of a modified temporary order because she would no longer be a party to the case. Therefore, she would have no reason to object to the lack of notice. Based on the foregoing, we do not find merit to Nicole and Judge Arteaga’s argument that by virtue of the motion to reconsider the motion to strike Michelle’s intervention pending before the trial court that Michelle was on notice that a modification of the temporary orders was before the trial court.
Judge Arteaga further contends Michelle failed to preserve her complaint because her conclusory and general statement that she needed more time and would like to call witnesses was insufficient to put the trial court in the position of having adequate facts to address relator’s complaint. However, the record clearly reveals Michelle objected to the lack of notice and hearing regarding the temporary orders. When Judge Arteaga first informed the parties she would be considering sua sponte whether to modify the temporary orders, Michelle’s counsel responded, “Judge, there’s no motion for temporary orders on file. We have no notice and that would be a very real violation to my client’s right to due process - - to conduct a temporary orders hearing today. . . . There’s nothing in there about temporary orders. We’re not ready for that. . . .We are not prepared to proceed on that today.” Counsel later reiterated, “We are not ready. We have received no notice. We have no witnesses.” Clearly, the record reveals Michelle objected to the lack of notice and a proper hearing regarding the modification of temporary orders.
Finally, Judge Arteaga contends Michelle was afforded the opportunity to present evidence, and chose not to. However, without having notice that the existing temporary orders would be modified, Michelle was clearly not prepared to present such evidence regarding the safety and welfare of the child and to rebut Nicole’s testimony in response to Judge Arteaga’s questions. See TEX. FAM. CODE ANN. § 105.001(a), (b).
As a result of the foregoing, we conclude the trial court abused its discretion in failing to provide Michelle with notice prior to modifying the existing temporary orders. See TEX. FAM.
CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. Accordingly, we do not find it necessary to address Michelle’s remaining issues presented to this court.
CONCLUSION
Based on the foregoing analysis, we hold the trial court clearly abused its discretion in modifying the existing temporary orders without notice and a hearing. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the August 30, 2011 order modifying the existing temporary orders. The writ will issue only if the trial court fails to comply within fourteen days.
Marialyn Barnard, Justice
SAN ANTONIO COURT OF APPEALS - 04-11-00641-CV - DECIDED 10/12/2011
CRITERIA FOR MANDAMUS RELIEF
[Order by appellate court directing trial court judge to change or set aside order that is otherwise not appealable or cannot be appealed immediately]
[Order by appellate court directing trial court judge to change or set aside order that is otherwise not appealable or cannot be appealed immediately]
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,” and “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker, 827 S.W.2d at 840.
Because temporary orders in suits affecting the parent-child relationship are not appealable, mandamus is an appropriate remedy when a trial court abuses its discretion. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding); In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding).
Saturday, August 20, 2011
Judicial enforcement of contractual visitation agreement by specific performance
MEMORANDUM OPINION BY JUSTICE ELSA ALCALA
[Father] appeals the trial court's order granting specific performance of an extrajudicial visitation agreement in which he agreed to allow his parents, [...] to have access to his son, D.J.M. In eight issues, [Father] contends that the trial court erred by granting specific performance of the 2007 visitation agreement, by denying his request for sanctions, by granting sanctions against him, and by finding against him on his claim for fraud. We conclude that [Father's] appeal of the trial court's denial of sanctions against [Grandparents] was not preserved, that his appeal of sanctions entered by the trial court against him is moot, that he inadequately briefed his argument that the 2007 agreement is unconstitutional, that presumed findings of fact support the trial court's implied rejection of [Father's] contract defenses, and that presumed findings of fact support a judgment against [Father] on his fraud claim. We affirm.
Background
D.J.M lived with his father, [Father's name] ("the father"), and his father's parents, [Granparents' names] (collectively, "the grandparents"). D.J.M.'s mother was not part of his life at any time relevant to this suit. The grandparents helped raise D.J.M.: they took him to school, fixed meals, took care of him when the father was at work or at school, and attended Grandparents Day events.
In May 2007, the father moved out of the grandparents' house, taking D.J.M. with him. The father left some of his and D.J.M.'s possessions in the grandparents' house. Janet testified that the father cut off all contact between the grandparents and D.J.M. except for one phone call. The father testified that he permitted the grandparents to speak to D.J.M. on the phone and allowed limited contact by mail. The father testified that he reduced contact between D.J.M. and his grandparents because he "believed that it would help transition [D.J.M.] into a new home . . . [and] very much because [he] was still angry with them."
In an effort to reunite with D.J.M., the grandparents asked John Mara, the attorney who represented the father during the original custody proceedings concerning D.J.M, to serve as a mediator between the parties. Although at the time, the father believed that Mara was acting as a mediator, he now disputes whether Mara acted impartially. The father testified that the possibility of the grandparents filing a lawsuit was raised several times and that he could not afford litigation. The parties eventually executed a document titled "Agreement for Visitation and Access to the Child" on September 13, 2007 ("the 2007 agreement"). Among numerous other provisions, the document stated:
WHEREAS, the grandparents and the father . . . acknowledge that the grandparents have had a substantial and significant past contact with the child and are persons other than foster parents who, long [sic] with the father, have had actual care, control and possession of the child for at least six (6) months; and
WHEREAS, the grandparents and the father desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship and obtain a formal court order, for economic reasons and further due to difficulty, expense and burden of locating the biological mother for the child whom none of the parties hereto have heard from for over five years; and
WHEREAS, the grandparents and the father agree that this Agreement for Visitation and Access to the Child . . . is in the best interest of the child.
The 2007 agreement was never made part of a formal court visitation order. After the 2007 agreement was signed, the father reclaimed his and D.J.M.'s possessions that had remained in the grandparents' house.
The father and the grandparents performed in accordance with this document until January 2009, when the father informed the grandparents that he would no longer abide by the 2007 agreement. He gave the grandparents a document that stated in total:
This is to notify Bruce and Janet McConnell that I, Shay McConnell, am of the belief that it is no longer nor was it ever at any time beneficial to continue with visitation between [D.J.M.] and his grandparents (Bruce and Janet) as decreed in the written contract reached on September 13th, 2007. It is from my priorly [sic] mentioned belief that I base my decision to end mine and my son's involvement in the visitation outlined in the contract. With my decision to end the visitation I do offer Bruce and Janet McConnell the opportunity to re-establish relations with my son and family in a more average grandparent capacity. Where-in they will be able to interact with [D.J.M.] and the rest of my family as is convenient for all involved parties. As a requirement of the re-establishment of a more average grandparent relationship I do require that Bruce and Janet relinquish, in writing, the visitation given to them in the contract reached on September 13th, 2007.
After giving the grandparents this document, the father allowed the grandparents two supervised visits with D.J.M. The grandparents brought the present lawsuit, seeking a modification of the original custody order or, in the alternative, specific performance of the 2007 agreement. The father answered, asserting a number of contract defenses against the 2007 agreement as well as counterclaims for fraud and conspiracy.
After the father informed the grandparents that he would no longer abide by the 2007 agreement, the parties attempted mediation. The mediation resulted in an agreement dated March 5, 2009, that permitted the grandparents to see D.J.M. for four hours on the first Sunday of every month ("the mediated agreement"). The copy of the agreement in the record shows that the parties modified the title from the original "Binding Mediated Settlement Agreement" to "Mediated Settlement Agreement as to A Contract Only." The parties also struck the boldface, all-capitals paragraph that declared that the mediated agreement was irrevocable and that either party was entitled to judgment on the agreement under the Family Code.
During the pendency of the litigation, the father moved to dismiss and for sanctions against the grandparents. The trial court dismissed the modification action and gave the grandparents a deadline of April 14, 2009 "to amend their contract claim, if any." The trial court's order stated, "[A]ll other matters are held over." The grandparents submitted a "Second Amended Petition to Modify Parent-Child Relationship" on April 14. This pleading included a claim for breach of contract with a request for specific performance of the 2007 agreement.
The grandparents sought to depose the father, who responded to the grandparents' notice by filing a motion for protective order within three business days. The grandparents went forward with the deposition and filed a certificate of nonappearance with the trial court in which the court reporter stated that the father did not appear and that the costs to the grandparents' attorney would be $150. The appellate record includes a docket entry from the associate judge in the case that indicates a sanction of $150 was imposed against the father for his failure to appear.
The trial court held a hearing on February 22, 2010, on the grandparents' claim for specific performance. After hearing testimony from Janet and the father, the trial court granted specific performance of the 2007 agreement. The trial court concluded that an order of specific performance would not be "state action" so as to raise the constitutional presumption that a fit parent should decide what is best for his child. The trial court also observed that there were matters about the contract that the parties should amend but concluded that it did not have authority to alter a private agreement between the father and the grandparents. Finally, the court orally ordered that the previous sanction order "be satisfied as costs."
The 2007 Agreement
In his third, fourth, fifth, sixth, and seventh issues, the father raises various challenges to the trial court's order of specific performance of the 2007 agreement. He asserts that enforcement of the 2007 agreement violates his authority as a parent, that the 2009 mediated settlement agreement functioned as a novation of the 2007 agreement, and that the trial court erred in impliedly rejecting his contract defenses to the 2007 agreement.
A. Standard of Review
Specific performance is an equitable remedy, which rests within the sound discretion of the trial court. Smith v. Dass, Inc., 283 S.W.3d 537, 542 (Tex. App.-Dallas 2009, no pet.). The test for abuse of discretion is whether the trial court "acted without reference to guiding rules and principles." Id. (quoting Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)). We will reverse the trial court only if its ruling is arbitrary or unreasonable. Id.
Because many of these contract issues require a fact-based analysis, we observe that the trial court did not enter findings of fact and conclusions of law and that the father did not request that it do so. Where the trial court does not render findings of fact or conclusions of law, we assume that it made all findings necessary in support of its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996). If the trial court's implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In determining whether some evidence supports the judgment and implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely any contrary evidence. Id.
B. Novation
In his third issue, the father contends that the 2009 mediated settlement agreement and the 2007 agreement are "inconsistent on their face," and that "the 2009 agreement, by novation, should have replaced [the 2007 agreement] as the current agreement." The grandparents assert that we should imply a finding by the trial court that the 2009 mediated settlement agreement was only temporary, pending trial.
The essential elements of a novation are (1) a previous, valid obligation; (2) a mutual agreement of the parties to the acceptance of a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 at n.7 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). The father does not concede that the 2007 agreement was a valid obligation; however, assuming that it was, he asserts that the evidence establishes the remaining elements. The grandparents challenge the second and third elements of novation, mutual agreement to the new contract and extinguishment of the old contract.
Mediated settlement agreements are addressed by the Texas Family Code. A mediated settlement agreement is binding only where it "provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation[.]" TEX. FAM. CODE ANN. § 153.0071(d)(1) (West 2009). Here, the grandparents emphasize that the boldfaced term "Binding" was crossed out of the heading of the 2009 mediated settlement agreement as was the boldfaced paragraph stating that each party understood that the 2009 mediated settlement agreement was not subject to revocation. Further, the grandparents observe that the trial court said to their attorney, "your position is that MSA from March 5th, 2009 is at best and intended to be a Temporary Order in this lawsuit and that all of the boldface language is crossed out in the agreement. So, I take it . . . your position or your client's position is that they are revoking this agreement[.]" The grandparents contend, therefore, that the trial court necessarily found that the 2009 mediated settlement agreement was intended to be temporary and not a permanent replacement for the 2007 agreement.
The father does not address the written alterations to the 2009 mediated settlement agreement. Because we imply all findings necessary to support the judgment, we conclude that the trial court must have found that the alterations to the 2009 mediated settlement agreement indicated that the grandparents did not agree that the 2007 agreement should be extinguished or that the 2009 mediated settlement agreement should form a new contract. Pharo, 922 S.W.2d at 948. We hold that the father has not established all elements of novation. Beal Bank, 124 S.W.3d at 653, n.7.
We overrule the father's third issue.
C. Contract Defenses
In his fourth and fifth issues, the father asserts a number of contract defenses against the 2007 agreement. Specifically, in his fourth issue, he asserts "unclean hands, including duress, fraudulent inducement, mistake, and novation." In his fifth issue, he asserts that the 2007 agreement was "on its face unconscionable and against public policy." In his combined discussion of these two issues, he also asserts that the 2007 agreement lacked consideration and was a result of coercion.
1. Unclean Hands
The father mentions the equitable defense of "unclean hands" in his brief to this court, but the case he cites does not discuss the doctrine, and we cannot discern any argument applying the doctrine of unclean hands to the facts of this case. We hold that the father's bare assertion of "unclean hands" does not present anything for our review and thus is waived as a sub-issue to his contract challenges. See TEX. R. APP. P. 38.1(i).
2. Duress and Coercion
The father asserts two forms of duress: economic duress, in that he could not afford to defend against the grandparents' threatened lawsuit, and duress of property, in that the parents threatened to withhold his and D.J.M.'s property if he did not signed the 2007 agreement. The father also asserts that he was coerced into signing the 2007 agreement because the grandparents threatened to sue him when, according to the father, they lacked standing to do so.
The father's economic duress and coercion defenses are based solely on the grandparents' alleged threats to sue and his contentions that the suit was improper because the grandparents lacked standing. A threat to sue is neither duress nor coercion. Cont'l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); McCloskey v. San Antonio Traction Co., 192 S.W. 1116, 1120 (Tex. Civ. App.-San Antonio 1917, writ ref'd). This is so even if the claim asserted is wrongful or unlawful. Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (citing Cont'l Cas. Co., 740 S.W.2d at 430; Ward v. Scarborough, 236 S.W. 434, 437 (Tex. Comm'n App. 1922)). We hold that as a matter of law, the trial court did not abuse its discretion by impliedly rejecting these defenses. See Cont'l Cas. Co., 740 S.W.2d at 430; Wright, 173 S.W.3d at 544.
The father's duress of property defense is based entirely on his assertion that the grandparents refused to turn over his and D.J.M.'s property until he signed the 2007 agreement. While this claim comports with the father's testimony, D.J.M.'s grandmother told the trial court that the father could have claimed the items at any time had he made prior arrangements. Because we imply all findings of fact necessary to support the trial court's judgment, we will presume that the trial court credited the grandmother's testimony and did not believe the father. See Pharo, 922 S.W.2d at 948. Having concluded that the trial court did not credit the sole evidence in favor of the father's duress of property defense, we hold that the trial court did not abuse its discretion in impliedly rejecting that defense.
3. Fraud and Mistake
On appeal, the father asserts that the 2007 agreement was invalid on grounds of fraudulent inducement and fraud by non-disclosure or avoidable based on mutual mistake or unilateral mistake. He contends that either the grandparents misrepresented their standing to sue him or they were mistaken. Having asserted that the grandparents lacked standing to sue him in September 2007, he contends that the primary consideration for the 2007 agreement was "meaningless" and was, therefore, "voidable" by his communication to the grandparents in January 2009.
The elements of fraud as a defense to breach of contract are: (1) a material representation was made (2) that was false, (3) that when the representation was made, the speaker knew it was false or made it as a positive assertion recklessly without any knowledge of the truth, (4) that the representation was made with the intention that it be acted upon by the other party, (5) that the other party acted in reliance upon the representation, and (6) that the other party suffered injury. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). Non-disclosure fraud is a species of fraud where a party has a duty to disclose that renders the failure to do so as misleading as a positive misrepresentation. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).
"Pursuant to the doctrine of mutual mistake, when parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided." Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d 746, 751 (Tex. 2009) (quoting Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)). "The question of mutual mistake is determined not by self-serving subjective statements of the parties' intent, which would necessitate trial to a jury in all such cases, but rather solely by objective circumstances surrounding execution of the [contract]." Id. Alternatively, we may set aside a contract based on a unilateral mistake where "(1) the mistake is of so great a consequence that to enforce the contract would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake occurred despite ordinary care; and (4) the parties can be placed in status quo, i.e., the rescission must not prejudice the other party except for the loss of the bargain." Ledig v. Duke Energy Corp., 193 S.W.3d 167, 175 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (internal quotation omitted).
The only evidence supporting the father's claim that he misunderstood the merits of a potential lawsuit at the time the 2007 agreement was negotiated is his own testimony. Presuming that the trial court made all factual findings necessary in support of its judgment, we conclude that the trial court did not credit the father's testimony. See Pharo, 922 S.W.2d at 948. Without the father's testimony that he did not know about the grandparents' standing to file a suit for possession or access, there is no evidence of misrepresentation, omission, or mistake respecting a material fact. We, therefore, hold that the trial court did not abuse its discretion by impliedly rejecting the father's fraud and mistake defenses.
4. Unconscionability
In his fifth issue, the father asserts that the 2007 agreement is "incredibly one-sided, giving the grandparents extensive rights and possession and access while giving [the father] substantially nothing." He further asserts that Mara's participation in the negotiation of the 2007 agreement tainted the entire process. Thus, he contends that the 2007 agreement was both substantively and procedurally unconscionable.[1]
"Unconscionability" has no precise legal definition, and it is to be determined on a case-by-case basis. Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 815 (Tex. App.-Dallas 1999, no pet.); Besteman v. Pitcock, 272 S.W.3d 777, 788 (Tex. App.-Texarkana 2008, no pet.). In general, "unconscionability" describes a contract that is unfair because of its overall one-sidedness or the gross one-sidedness of its terms. Arthur's Garage, 997 S.W.2d at 815. "Although no single test exists to determine if a contract is unconscionable, we begin with two questions: (1) How did the parties arrive at the terms in controversy; and (2) Are there legitimate reasons which justify the inclusion of those terms?" Id. at 815-16. The first question, which describes procedural unconscionability, is concerned with assent and focuses on facts surrounding the bargaining process. Id. at 816. The second question, which describes "substantive unconscionability," is concerned with the fairness of the agreement itself. Id. "[A] contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience." Besteman, 272 S.W.3d at 789 (quoting Anaheim Indus. v. GMC, No. 01-06-00440-CV, 2007 WL 4554213, at *9, (Tex. App.-Houston [1st Dist.] Dec. 20, 2007, pet. denied)).
Whether a contract is unconscionable is a question of law. Arthur's Garage, 997 S.W.2d at 815. However, the determination of the facts that supposedly illustrate unconscionability is a question for the trial court. Besteman, 272 S.W.3d at 788. The party asserting unconscionability must prove both procedural and substantive unconscionability. In re Green Tree Servicing, L.L.C., 275 S.W.3d 592, 603 (Tex. App.-Texarkana 2008, no pet.).
The father asserts that procedural unconscionability is shown by the participation in the negotiation of Mara, his former attorney from the original suit establishing custody of D.J.M.[2] The father's testimony was the only evidence supporting a finding of inequitable conduct in the process by which the 2007 agreement was reached. We conclude that the trial court must have disbelieved the father when he claimed that Mara's role was anything other than a mediator. There is, therefore, no evidence in support of the procedural prong of our unconscionability analysis. Arthur's Garage, 997 S.W.2d at 815. Because the father was required to establish both prongs to be entitled to a judgment that the 2007 agreement was unconscionable, see In re Green Tree, 275 S.W.3d at 603, we hold that the trial court did not abuse its discretion by impliedly rejecting the father's unconscionability defense.[3]
5. Lack of Consideration
The father contends that the grandparents lacked standing to sue for access to D.J.M. at the time the 2007 agreement was executed and that because they lacked standing, their relinquishment of a right to sue amounts to no consideration.
The existence of a written contract presumes consideration, and the burden was on the father to disprove consideration. Blockbuster, Inc. v. C-Span Entm't, Inc., 276 S.W.3d 482, 488 (Tex. App.-Dallas 2008, pet. granted) (citing Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.)). The 2007 agreement stated that "in consideration of Ten ($10.00) Dollars which is acknowledged as paid by the grandparents and which is further acknowledged as received by the father, and the further consideration of the mutual representations, agreements and promises contained herein and other good and valuable consideration which is acknowledged as received by the parties hereto, the grandparents and the father agree[d]" to the terms of the agreement. The agreement further states that the parties "desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship . . . for economic reasons." However, the only evidence that the father misunderstood the possible merits of any potential suit that the grandparents could bring was the father's own testimony. The trial court was within its discretion to disbelieve the father's testimony, and because of the lack of findings of fact, we presume that it did so. See Pharo, 922 S.W.2d at 948. Thus, we conclude that the trial court credited the recitations of consideration in the 2007 agreement, and we hold that the trial court did not abuse its discretion in rejecting the father's defense of lack of consideration. See Blockbuster, 276 S.W.3d at 488 (citing Simpson, 724 S.W.2d at 107).
Having held that none of the father's contract-defense sub-issues shows an abuse of discretion by the trial court, we overrule the father's fourth and fifth issues.
D. Parental Presumption
In his seventh issue, the father contends that the trial court erred by ordering specific performance because the 2007 agreement "circumvent[ed]" his "parental presumption." He directs our attention to the U.S. Supreme Court's decision in Troxel v. Granville, a grandparent visitation case. 530 U.S. 57, 120 S. Ct. 2054 (2000). He argues that the trial court failed to "accord at least some special weight to the parent's own determination" and that only he was empowered to determine when the grandparents should have access to his child. See id. at 70, 120 S. Ct. at 2062.
Beyond merely stating the general holding of Troxel and citing one case from the El Paso court of appeals, see Roby v. Adams, 68 S.W.3d 822, 828 (Tex. App.-El Paso 2002, pet. denied), the father has neither briefed any argument nor cited any case applicable to the particular issues in this case. Specifically, he has not attempted to explain with citations to the record and relevant authority why an order of specific performance of an extrajudicial visitation agreement crafted by the parties should be subject to the same constitutional analysis applied to a statutory visitation order crafted by the courts. We hold, therefore, that the father's seventh issue is waived due to inadequate briefing. See Stephens v. Dolcefino, 126 S.W.3d 120, 126 at n.5 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
The portion of the father's brief referring to the "parental presumption" purports to be a combined analysis of his sixth and seventh issues. The father's sixth issue asserts that the trial court erred by ordering specific performance of the 2007 agreement because the father "lawfully rescinded" it. The father provides no argument or authorities relating to rescission. His sixth issue, therefore, presents nothing for our review. TEX. R. APP. P. 38.1(i).
We overrule the father's sixth and seventh issues.
Sanctions
In his first and second issues, the father challenges the trial court's refusal to grant sanctions against the grandparents and its order granting sanctions against him.
A. Sanctions Against the Father
In his first issue, the father contends that the trial court erred by adopting the associate judge's award of sanctions. Specifically, the father contends that he timely filed a motion for protective order objecting to the time and place of the deposition, thereby automatically staying the deposition. Thus, he asserts that he should not have been sanctioned for failure to attend the deposition. The grandparents contend that the absence of a transcript of the hearing at which sanctions were imposed and the lack of any objection to the trial court's adoption of the associate judge's award constitute a failure to preserve this issue for appellate review. The grandparents further argue that sanctions are discretionary and may be appropriate even when there is a timely filed motion for protective order. Finally, the grandparents assert that in the absence of findings of fact and conclusions of law, we must imply all facts necessary to support the court's ruling.
The trial court's "Order In Suit For Specific Performance Of Agreement" contains no mention of sanctions against the father and further states that "all relief requested in this case and not expressly granted is denied." On the other hand, in the transcript of the February 22 hearing, the trial courts states, "The Court is finding that there was a previously ordered sanction in this case, and I'm ordering that that be satisfied as costs and paid on or before March 15th." In a civil case, when the oral pronouncements of the trial court conflict with its written judgment, the written judgment prevails. Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.-Houston [1st Dist.] 1994, writ denied). The trial court's written judgment does not award sanctions. Thus, although the father's first issue challenges the trial court's award of a $150 sanction against him, there is no order of sanctions before us for our review. See Morton v. Paradise Cove Property Owners Ass'n, No. 11-08-00022-CV, 2009 WL 2841208 at *2 (Tex. App.-Eastland Sept. 3, 2009, no pet. hist.) (mem. op., not designated for publication).
We overrule the father's first issue as moot.
B. The Father's Motions to Dismiss and for Sanctions
In his second issue, the father contends that the trial court erred by failing to dismiss the grandparents' Second Amended Motion to Modify the Parent Child Relationship and by declining to sanction the grandparents. He contends that he was entitled to sanctions under the Rules of Civil Procedure and the Civil Practice and Remedies Code. While the father's second issue purports to include a challenge to the trial court's refusal to grant his motion to dismiss, his discussion of that issue contains no argument or authorities relating to that motion. See TEX. R. APP. P. 38.1(i). We, therefore, will only address the father's challenge to the trial court's ruling as to sanctions.
The father urges us to find that the trial court should have sanctioned the grandparents under Rule 13 of the Rules of Civil Procedure and under sections 9 and 10 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011, 10.001-2 (West 2002); TEX. R. CIV. P. 13. We review a trial court's decision whether to impose sanctions under the foregoing provisions for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 582-83 (Tex. 2006); Cire, 134 S.W.3d at 838. The test for whether a trial court abused its discretion is whether it acted without reference to guiding rules or principles. Cire, 134 S.W.3d at 839.
In the father's analysis, he relies solely on documents that are not before us on appeal. The father directs our attention to "Shay McConnell's First Amended Motion for Sanctions Including Dismiss [sic] and Enforcement of Binding Agreement, attached in Appendix A and part of the supplemental record." The record contains no such document, the father has not provided this Court with any appendix to his brief, and even if the father had filed an appendix, we may not consider documents that are not formally included in the record on appeal. See Sowell v. Kroger Co., 263 S.W.3d 36, 38 (Tex. App.-Houston [1st Dist.] 2006, no pet.). The father also refers to events at a February 25, 2009 hearing for which there is no transcript; the father cites only to the trial court's handwritten docket entry as his record citation. This Court has held that a docket entry "forms no part of the record we may consider; it is a memorandum made for the trial court and clerk's convenience." Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ) (citing Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151-52 (Tex. App.-Dallas 1986, no writ)). Further, the father describes events at a court-ordered mediation for which there is no record; he directs our attention to the mediated agreement, which does not mention sanctions; and finally, he refers to the court's "refus[al] to dismiss or sanction Appellees," citing again to the trial court's docket sheet.
The only document in the record evidencing the father's motions to dismiss and for sanctions is the court's order of May 1, 2009, that dismisses the grandparents' suit in part.[4] The father does not refer to this document under his second issue. Furthermore, the document does not describe the father's motion. The record, therefore, contains nothing that shows that the father presented the trial court with the arguments he now raises before this Court. The record fails to show the trial court abused its discretion by declining to sanction the grandparents.
We overrule the father's second issue.
Fraud
In his eighth issue, the father contends that the trial court erred by ruling against his affirmative fraud claim. The father does not present any argument or authorities for this issue but instead references his fourth and fifth issues, which present his contract defenses to the 2007 agreement. Where an appellant's brief "does little more than summarily state his point of error, without citations to legal authority or substantive analysis, it is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue." Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also TEX. R. APP. P. 38.1. We hold that the father has inadequately briefed his eighth issue and that it is waived. See Wheeler, 95 S.W.3d at 646.
We overrule the father's eighth issue.
Conclusion
We affirm the judgment of the trial court.
Footnotes:
[1] In his statement of his fifth issue, the father also suggests that the 2007 agreement is "against public policy." He has briefed no public policy argument, and we, therefore, do not address that issue.
[2] The father also asserts on appeal that the grandparents have more money and education than he does, facts which have both been identified as possible considerations in a procedural unconscionability analysis. See El Paso Natural Gas Co. v. Minco Oil & Gas Co., 964 S.W.2d 54, 61 (Tex. App.-Amarillo 1998), rev'd, 8 S.W.3d 309 (Tex. 1999). We note that El Paso Natural Gas does not hold that financial or educational imbalance are necessary or sufficient factors but only that they may be considered by the court. We have found no evidence in the trial record of the parties' respective financial status or education level.
[3] We do not reach the substantive prong of the unconscionability test. However, we note that while the trial court did not issue findings of fact or conclusions of law, it did state for the record its rejection of the father's unconscionability argument:
Really it's a bit disingenuous for the [father] to present that he was victimized by this process, because if anybody was victimized by it, it was the grandparents. They're the ones that agreed to go along with this contractual process, and you could make the argument that they put their legal rights and interest more in jeopardy than he did by entering into this kind of an agreement.
[4] The trial court's order states, in relevant part:
On April 8, 2009 the Court considered the Movant Shay McConnell's Motion to Dismiss and Motion for Sanctions and ORDERS that Motion to Dismiss is GRANTED in part as detailed below and all other matters are held over.
IT IS ORDERED that the Suit to Modify the Parent Child Relationship is dismissed, leaving only Petitioner's potential contract claims. IT IS FURTHER ORDERED that Petitioners have until 5:00 p.m. on April 14, 2009 to amend their contract claim, if any.
IT IS FURTHER ORDERED that discovery response time for discovery propounded by Petitioners to Respondent Shay McConnell will not begin to run until and unless Petitioners amend their contract claims.
The grandparents filed their second amended petition on April 14, as directed by the trial court.
CASE INFO: First Court of Appeals (Houston) - No. 01-10-00300-CV - Opinion release date: 1/27/2011
[Father] appeals the trial court's order granting specific performance of an extrajudicial visitation agreement in which he agreed to allow his parents, [...] to have access to his son, D.J.M. In eight issues, [Father] contends that the trial court erred by granting specific performance of the 2007 visitation agreement, by denying his request for sanctions, by granting sanctions against him, and by finding against him on his claim for fraud. We conclude that [Father's] appeal of the trial court's denial of sanctions against [Grandparents] was not preserved, that his appeal of sanctions entered by the trial court against him is moot, that he inadequately briefed his argument that the 2007 agreement is unconstitutional, that presumed findings of fact support the trial court's implied rejection of [Father's] contract defenses, and that presumed findings of fact support a judgment against [Father] on his fraud claim. We affirm.
Background
D.J.M lived with his father, [Father's name] ("the father"), and his father's parents, [Granparents' names] (collectively, "the grandparents"). D.J.M.'s mother was not part of his life at any time relevant to this suit. The grandparents helped raise D.J.M.: they took him to school, fixed meals, took care of him when the father was at work or at school, and attended Grandparents Day events.
In May 2007, the father moved out of the grandparents' house, taking D.J.M. with him. The father left some of his and D.J.M.'s possessions in the grandparents' house. Janet testified that the father cut off all contact between the grandparents and D.J.M. except for one phone call. The father testified that he permitted the grandparents to speak to D.J.M. on the phone and allowed limited contact by mail. The father testified that he reduced contact between D.J.M. and his grandparents because he "believed that it would help transition [D.J.M.] into a new home . . . [and] very much because [he] was still angry with them."
In an effort to reunite with D.J.M., the grandparents asked John Mara, the attorney who represented the father during the original custody proceedings concerning D.J.M, to serve as a mediator between the parties. Although at the time, the father believed that Mara was acting as a mediator, he now disputes whether Mara acted impartially. The father testified that the possibility of the grandparents filing a lawsuit was raised several times and that he could not afford litigation. The parties eventually executed a document titled "Agreement for Visitation and Access to the Child" on September 13, 2007 ("the 2007 agreement"). Among numerous other provisions, the document stated:
WHEREAS, the grandparents and the father . . . acknowledge that the grandparents have had a substantial and significant past contact with the child and are persons other than foster parents who, long [sic] with the father, have had actual care, control and possession of the child for at least six (6) months; and
WHEREAS, the grandparents and the father desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship and obtain a formal court order, for economic reasons and further due to difficulty, expense and burden of locating the biological mother for the child whom none of the parties hereto have heard from for over five years; and
WHEREAS, the grandparents and the father agree that this Agreement for Visitation and Access to the Child . . . is in the best interest of the child.
The 2007 agreement was never made part of a formal court visitation order. After the 2007 agreement was signed, the father reclaimed his and D.J.M.'s possessions that had remained in the grandparents' house.
The father and the grandparents performed in accordance with this document until January 2009, when the father informed the grandparents that he would no longer abide by the 2007 agreement. He gave the grandparents a document that stated in total:
This is to notify Bruce and Janet McConnell that I, Shay McConnell, am of the belief that it is no longer nor was it ever at any time beneficial to continue with visitation between [D.J.M.] and his grandparents (Bruce and Janet) as decreed in the written contract reached on September 13th, 2007. It is from my priorly [sic] mentioned belief that I base my decision to end mine and my son's involvement in the visitation outlined in the contract. With my decision to end the visitation I do offer Bruce and Janet McConnell the opportunity to re-establish relations with my son and family in a more average grandparent capacity. Where-in they will be able to interact with [D.J.M.] and the rest of my family as is convenient for all involved parties. As a requirement of the re-establishment of a more average grandparent relationship I do require that Bruce and Janet relinquish, in writing, the visitation given to them in the contract reached on September 13th, 2007.
After giving the grandparents this document, the father allowed the grandparents two supervised visits with D.J.M. The grandparents brought the present lawsuit, seeking a modification of the original custody order or, in the alternative, specific performance of the 2007 agreement. The father answered, asserting a number of contract defenses against the 2007 agreement as well as counterclaims for fraud and conspiracy.
After the father informed the grandparents that he would no longer abide by the 2007 agreement, the parties attempted mediation. The mediation resulted in an agreement dated March 5, 2009, that permitted the grandparents to see D.J.M. for four hours on the first Sunday of every month ("the mediated agreement"). The copy of the agreement in the record shows that the parties modified the title from the original "Binding Mediated Settlement Agreement" to "Mediated Settlement Agreement as to A Contract Only." The parties also struck the boldface, all-capitals paragraph that declared that the mediated agreement was irrevocable and that either party was entitled to judgment on the agreement under the Family Code.
During the pendency of the litigation, the father moved to dismiss and for sanctions against the grandparents. The trial court dismissed the modification action and gave the grandparents a deadline of April 14, 2009 "to amend their contract claim, if any." The trial court's order stated, "[A]ll other matters are held over." The grandparents submitted a "Second Amended Petition to Modify Parent-Child Relationship" on April 14. This pleading included a claim for breach of contract with a request for specific performance of the 2007 agreement.
The grandparents sought to depose the father, who responded to the grandparents' notice by filing a motion for protective order within three business days. The grandparents went forward with the deposition and filed a certificate of nonappearance with the trial court in which the court reporter stated that the father did not appear and that the costs to the grandparents' attorney would be $150. The appellate record includes a docket entry from the associate judge in the case that indicates a sanction of $150 was imposed against the father for his failure to appear.
The trial court held a hearing on February 22, 2010, on the grandparents' claim for specific performance. After hearing testimony from Janet and the father, the trial court granted specific performance of the 2007 agreement. The trial court concluded that an order of specific performance would not be "state action" so as to raise the constitutional presumption that a fit parent should decide what is best for his child. The trial court also observed that there were matters about the contract that the parties should amend but concluded that it did not have authority to alter a private agreement between the father and the grandparents. Finally, the court orally ordered that the previous sanction order "be satisfied as costs."
The 2007 Agreement
In his third, fourth, fifth, sixth, and seventh issues, the father raises various challenges to the trial court's order of specific performance of the 2007 agreement. He asserts that enforcement of the 2007 agreement violates his authority as a parent, that the 2009 mediated settlement agreement functioned as a novation of the 2007 agreement, and that the trial court erred in impliedly rejecting his contract defenses to the 2007 agreement.
A. Standard of Review
Specific performance is an equitable remedy, which rests within the sound discretion of the trial court. Smith v. Dass, Inc., 283 S.W.3d 537, 542 (Tex. App.-Dallas 2009, no pet.). The test for abuse of discretion is whether the trial court "acted without reference to guiding rules and principles." Id. (quoting Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)). We will reverse the trial court only if its ruling is arbitrary or unreasonable. Id.
Because many of these contract issues require a fact-based analysis, we observe that the trial court did not enter findings of fact and conclusions of law and that the father did not request that it do so. Where the trial court does not render findings of fact or conclusions of law, we assume that it made all findings necessary in support of its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996). If the trial court's implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In determining whether some evidence supports the judgment and implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely any contrary evidence. Id.
B. Novation
In his third issue, the father contends that the 2009 mediated settlement agreement and the 2007 agreement are "inconsistent on their face," and that "the 2009 agreement, by novation, should have replaced [the 2007 agreement] as the current agreement." The grandparents assert that we should imply a finding by the trial court that the 2009 mediated settlement agreement was only temporary, pending trial.
The essential elements of a novation are (1) a previous, valid obligation; (2) a mutual agreement of the parties to the acceptance of a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 at n.7 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). The father does not concede that the 2007 agreement was a valid obligation; however, assuming that it was, he asserts that the evidence establishes the remaining elements. The grandparents challenge the second and third elements of novation, mutual agreement to the new contract and extinguishment of the old contract.
Mediated settlement agreements are addressed by the Texas Family Code. A mediated settlement agreement is binding only where it "provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation[.]" TEX. FAM. CODE ANN. § 153.0071(d)(1) (West 2009). Here, the grandparents emphasize that the boldfaced term "Binding" was crossed out of the heading of the 2009 mediated settlement agreement as was the boldfaced paragraph stating that each party understood that the 2009 mediated settlement agreement was not subject to revocation. Further, the grandparents observe that the trial court said to their attorney, "your position is that MSA from March 5th, 2009 is at best and intended to be a Temporary Order in this lawsuit and that all of the boldface language is crossed out in the agreement. So, I take it . . . your position or your client's position is that they are revoking this agreement[.]" The grandparents contend, therefore, that the trial court necessarily found that the 2009 mediated settlement agreement was intended to be temporary and not a permanent replacement for the 2007 agreement.
The father does not address the written alterations to the 2009 mediated settlement agreement. Because we imply all findings necessary to support the judgment, we conclude that the trial court must have found that the alterations to the 2009 mediated settlement agreement indicated that the grandparents did not agree that the 2007 agreement should be extinguished or that the 2009 mediated settlement agreement should form a new contract. Pharo, 922 S.W.2d at 948. We hold that the father has not established all elements of novation. Beal Bank, 124 S.W.3d at 653, n.7.
We overrule the father's third issue.
C. Contract Defenses
In his fourth and fifth issues, the father asserts a number of contract defenses against the 2007 agreement. Specifically, in his fourth issue, he asserts "unclean hands, including duress, fraudulent inducement, mistake, and novation." In his fifth issue, he asserts that the 2007 agreement was "on its face unconscionable and against public policy." In his combined discussion of these two issues, he also asserts that the 2007 agreement lacked consideration and was a result of coercion.
1. Unclean Hands
The father mentions the equitable defense of "unclean hands" in his brief to this court, but the case he cites does not discuss the doctrine, and we cannot discern any argument applying the doctrine of unclean hands to the facts of this case. We hold that the father's bare assertion of "unclean hands" does not present anything for our review and thus is waived as a sub-issue to his contract challenges. See TEX. R. APP. P. 38.1(i).
2. Duress and Coercion
The father asserts two forms of duress: economic duress, in that he could not afford to defend against the grandparents' threatened lawsuit, and duress of property, in that the parents threatened to withhold his and D.J.M.'s property if he did not signed the 2007 agreement. The father also asserts that he was coerced into signing the 2007 agreement because the grandparents threatened to sue him when, according to the father, they lacked standing to do so.
The father's economic duress and coercion defenses are based solely on the grandparents' alleged threats to sue and his contentions that the suit was improper because the grandparents lacked standing. A threat to sue is neither duress nor coercion. Cont'l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); McCloskey v. San Antonio Traction Co., 192 S.W. 1116, 1120 (Tex. Civ. App.-San Antonio 1917, writ ref'd). This is so even if the claim asserted is wrongful or unlawful. Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (citing Cont'l Cas. Co., 740 S.W.2d at 430; Ward v. Scarborough, 236 S.W. 434, 437 (Tex. Comm'n App. 1922)). We hold that as a matter of law, the trial court did not abuse its discretion by impliedly rejecting these defenses. See Cont'l Cas. Co., 740 S.W.2d at 430; Wright, 173 S.W.3d at 544.
The father's duress of property defense is based entirely on his assertion that the grandparents refused to turn over his and D.J.M.'s property until he signed the 2007 agreement. While this claim comports with the father's testimony, D.J.M.'s grandmother told the trial court that the father could have claimed the items at any time had he made prior arrangements. Because we imply all findings of fact necessary to support the trial court's judgment, we will presume that the trial court credited the grandmother's testimony and did not believe the father. See Pharo, 922 S.W.2d at 948. Having concluded that the trial court did not credit the sole evidence in favor of the father's duress of property defense, we hold that the trial court did not abuse its discretion in impliedly rejecting that defense.
3. Fraud and Mistake
On appeal, the father asserts that the 2007 agreement was invalid on grounds of fraudulent inducement and fraud by non-disclosure or avoidable based on mutual mistake or unilateral mistake. He contends that either the grandparents misrepresented their standing to sue him or they were mistaken. Having asserted that the grandparents lacked standing to sue him in September 2007, he contends that the primary consideration for the 2007 agreement was "meaningless" and was, therefore, "voidable" by his communication to the grandparents in January 2009.
The elements of fraud as a defense to breach of contract are: (1) a material representation was made (2) that was false, (3) that when the representation was made, the speaker knew it was false or made it as a positive assertion recklessly without any knowledge of the truth, (4) that the representation was made with the intention that it be acted upon by the other party, (5) that the other party acted in reliance upon the representation, and (6) that the other party suffered injury. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). Non-disclosure fraud is a species of fraud where a party has a duty to disclose that renders the failure to do so as misleading as a positive misrepresentation. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).
"Pursuant to the doctrine of mutual mistake, when parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided." Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d 746, 751 (Tex. 2009) (quoting Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)). "The question of mutual mistake is determined not by self-serving subjective statements of the parties' intent, which would necessitate trial to a jury in all such cases, but rather solely by objective circumstances surrounding execution of the [contract]." Id. Alternatively, we may set aside a contract based on a unilateral mistake where "(1) the mistake is of so great a consequence that to enforce the contract would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake occurred despite ordinary care; and (4) the parties can be placed in status quo, i.e., the rescission must not prejudice the other party except for the loss of the bargain." Ledig v. Duke Energy Corp., 193 S.W.3d 167, 175 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (internal quotation omitted).
The only evidence supporting the father's claim that he misunderstood the merits of a potential lawsuit at the time the 2007 agreement was negotiated is his own testimony. Presuming that the trial court made all factual findings necessary in support of its judgment, we conclude that the trial court did not credit the father's testimony. See Pharo, 922 S.W.2d at 948. Without the father's testimony that he did not know about the grandparents' standing to file a suit for possession or access, there is no evidence of misrepresentation, omission, or mistake respecting a material fact. We, therefore, hold that the trial court did not abuse its discretion by impliedly rejecting the father's fraud and mistake defenses.
4. Unconscionability
In his fifth issue, the father asserts that the 2007 agreement is "incredibly one-sided, giving the grandparents extensive rights and possession and access while giving [the father] substantially nothing." He further asserts that Mara's participation in the negotiation of the 2007 agreement tainted the entire process. Thus, he contends that the 2007 agreement was both substantively and procedurally unconscionable.[1]
"Unconscionability" has no precise legal definition, and it is to be determined on a case-by-case basis. Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 815 (Tex. App.-Dallas 1999, no pet.); Besteman v. Pitcock, 272 S.W.3d 777, 788 (Tex. App.-Texarkana 2008, no pet.). In general, "unconscionability" describes a contract that is unfair because of its overall one-sidedness or the gross one-sidedness of its terms. Arthur's Garage, 997 S.W.2d at 815. "Although no single test exists to determine if a contract is unconscionable, we begin with two questions: (1) How did the parties arrive at the terms in controversy; and (2) Are there legitimate reasons which justify the inclusion of those terms?" Id. at 815-16. The first question, which describes procedural unconscionability, is concerned with assent and focuses on facts surrounding the bargaining process. Id. at 816. The second question, which describes "substantive unconscionability," is concerned with the fairness of the agreement itself. Id. "[A] contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience." Besteman, 272 S.W.3d at 789 (quoting Anaheim Indus. v. GMC, No. 01-06-00440-CV, 2007 WL 4554213, at *9, (Tex. App.-Houston [1st Dist.] Dec. 20, 2007, pet. denied)).
Whether a contract is unconscionable is a question of law. Arthur's Garage, 997 S.W.2d at 815. However, the determination of the facts that supposedly illustrate unconscionability is a question for the trial court. Besteman, 272 S.W.3d at 788. The party asserting unconscionability must prove both procedural and substantive unconscionability. In re Green Tree Servicing, L.L.C., 275 S.W.3d 592, 603 (Tex. App.-Texarkana 2008, no pet.).
The father asserts that procedural unconscionability is shown by the participation in the negotiation of Mara, his former attorney from the original suit establishing custody of D.J.M.[2] The father's testimony was the only evidence supporting a finding of inequitable conduct in the process by which the 2007 agreement was reached. We conclude that the trial court must have disbelieved the father when he claimed that Mara's role was anything other than a mediator. There is, therefore, no evidence in support of the procedural prong of our unconscionability analysis. Arthur's Garage, 997 S.W.2d at 815. Because the father was required to establish both prongs to be entitled to a judgment that the 2007 agreement was unconscionable, see In re Green Tree, 275 S.W.3d at 603, we hold that the trial court did not abuse its discretion by impliedly rejecting the father's unconscionability defense.[3]
5. Lack of Consideration
The father contends that the grandparents lacked standing to sue for access to D.J.M. at the time the 2007 agreement was executed and that because they lacked standing, their relinquishment of a right to sue amounts to no consideration.
The existence of a written contract presumes consideration, and the burden was on the father to disprove consideration. Blockbuster, Inc. v. C-Span Entm't, Inc., 276 S.W.3d 482, 488 (Tex. App.-Dallas 2008, pet. granted) (citing Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.)). The 2007 agreement stated that "in consideration of Ten ($10.00) Dollars which is acknowledged as paid by the grandparents and which is further acknowledged as received by the father, and the further consideration of the mutual representations, agreements and promises contained herein and other good and valuable consideration which is acknowledged as received by the parties hereto, the grandparents and the father agree[d]" to the terms of the agreement. The agreement further states that the parties "desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship . . . for economic reasons." However, the only evidence that the father misunderstood the possible merits of any potential suit that the grandparents could bring was the father's own testimony. The trial court was within its discretion to disbelieve the father's testimony, and because of the lack of findings of fact, we presume that it did so. See Pharo, 922 S.W.2d at 948. Thus, we conclude that the trial court credited the recitations of consideration in the 2007 agreement, and we hold that the trial court did not abuse its discretion in rejecting the father's defense of lack of consideration. See Blockbuster, 276 S.W.3d at 488 (citing Simpson, 724 S.W.2d at 107).
Having held that none of the father's contract-defense sub-issues shows an abuse of discretion by the trial court, we overrule the father's fourth and fifth issues.
D. Parental Presumption
In his seventh issue, the father contends that the trial court erred by ordering specific performance because the 2007 agreement "circumvent[ed]" his "parental presumption." He directs our attention to the U.S. Supreme Court's decision in Troxel v. Granville, a grandparent visitation case. 530 U.S. 57, 120 S. Ct. 2054 (2000). He argues that the trial court failed to "accord at least some special weight to the parent's own determination" and that only he was empowered to determine when the grandparents should have access to his child. See id. at 70, 120 S. Ct. at 2062.
Beyond merely stating the general holding of Troxel and citing one case from the El Paso court of appeals, see Roby v. Adams, 68 S.W.3d 822, 828 (Tex. App.-El Paso 2002, pet. denied), the father has neither briefed any argument nor cited any case applicable to the particular issues in this case. Specifically, he has not attempted to explain with citations to the record and relevant authority why an order of specific performance of an extrajudicial visitation agreement crafted by the parties should be subject to the same constitutional analysis applied to a statutory visitation order crafted by the courts. We hold, therefore, that the father's seventh issue is waived due to inadequate briefing. See Stephens v. Dolcefino, 126 S.W.3d 120, 126 at n.5 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
The portion of the father's brief referring to the "parental presumption" purports to be a combined analysis of his sixth and seventh issues. The father's sixth issue asserts that the trial court erred by ordering specific performance of the 2007 agreement because the father "lawfully rescinded" it. The father provides no argument or authorities relating to rescission. His sixth issue, therefore, presents nothing for our review. TEX. R. APP. P. 38.1(i).
We overrule the father's sixth and seventh issues.
Sanctions
In his first and second issues, the father challenges the trial court's refusal to grant sanctions against the grandparents and its order granting sanctions against him.
A. Sanctions Against the Father
In his first issue, the father contends that the trial court erred by adopting the associate judge's award of sanctions. Specifically, the father contends that he timely filed a motion for protective order objecting to the time and place of the deposition, thereby automatically staying the deposition. Thus, he asserts that he should not have been sanctioned for failure to attend the deposition. The grandparents contend that the absence of a transcript of the hearing at which sanctions were imposed and the lack of any objection to the trial court's adoption of the associate judge's award constitute a failure to preserve this issue for appellate review. The grandparents further argue that sanctions are discretionary and may be appropriate even when there is a timely filed motion for protective order. Finally, the grandparents assert that in the absence of findings of fact and conclusions of law, we must imply all facts necessary to support the court's ruling.
The trial court's "Order In Suit For Specific Performance Of Agreement" contains no mention of sanctions against the father and further states that "all relief requested in this case and not expressly granted is denied." On the other hand, in the transcript of the February 22 hearing, the trial courts states, "The Court is finding that there was a previously ordered sanction in this case, and I'm ordering that that be satisfied as costs and paid on or before March 15th." In a civil case, when the oral pronouncements of the trial court conflict with its written judgment, the written judgment prevails. Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.-Houston [1st Dist.] 1994, writ denied). The trial court's written judgment does not award sanctions. Thus, although the father's first issue challenges the trial court's award of a $150 sanction against him, there is no order of sanctions before us for our review. See Morton v. Paradise Cove Property Owners Ass'n, No. 11-08-00022-CV, 2009 WL 2841208 at *2 (Tex. App.-Eastland Sept. 3, 2009, no pet. hist.) (mem. op., not designated for publication).
We overrule the father's first issue as moot.
B. The Father's Motions to Dismiss and for Sanctions
In his second issue, the father contends that the trial court erred by failing to dismiss the grandparents' Second Amended Motion to Modify the Parent Child Relationship and by declining to sanction the grandparents. He contends that he was entitled to sanctions under the Rules of Civil Procedure and the Civil Practice and Remedies Code. While the father's second issue purports to include a challenge to the trial court's refusal to grant his motion to dismiss, his discussion of that issue contains no argument or authorities relating to that motion. See TEX. R. APP. P. 38.1(i). We, therefore, will only address the father's challenge to the trial court's ruling as to sanctions.
The father urges us to find that the trial court should have sanctioned the grandparents under Rule 13 of the Rules of Civil Procedure and under sections 9 and 10 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011, 10.001-2 (West 2002); TEX. R. CIV. P. 13. We review a trial court's decision whether to impose sanctions under the foregoing provisions for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 582-83 (Tex. 2006); Cire, 134 S.W.3d at 838. The test for whether a trial court abused its discretion is whether it acted without reference to guiding rules or principles. Cire, 134 S.W.3d at 839.
In the father's analysis, he relies solely on documents that are not before us on appeal. The father directs our attention to "Shay McConnell's First Amended Motion for Sanctions Including Dismiss [sic] and Enforcement of Binding Agreement, attached in Appendix A and part of the supplemental record." The record contains no such document, the father has not provided this Court with any appendix to his brief, and even if the father had filed an appendix, we may not consider documents that are not formally included in the record on appeal. See Sowell v. Kroger Co., 263 S.W.3d 36, 38 (Tex. App.-Houston [1st Dist.] 2006, no pet.). The father also refers to events at a February 25, 2009 hearing for which there is no transcript; the father cites only to the trial court's handwritten docket entry as his record citation. This Court has held that a docket entry "forms no part of the record we may consider; it is a memorandum made for the trial court and clerk's convenience." Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ) (citing Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151-52 (Tex. App.-Dallas 1986, no writ)). Further, the father describes events at a court-ordered mediation for which there is no record; he directs our attention to the mediated agreement, which does not mention sanctions; and finally, he refers to the court's "refus[al] to dismiss or sanction Appellees," citing again to the trial court's docket sheet.
The only document in the record evidencing the father's motions to dismiss and for sanctions is the court's order of May 1, 2009, that dismisses the grandparents' suit in part.[4] The father does not refer to this document under his second issue. Furthermore, the document does not describe the father's motion. The record, therefore, contains nothing that shows that the father presented the trial court with the arguments he now raises before this Court. The record fails to show the trial court abused its discretion by declining to sanction the grandparents.
We overrule the father's second issue.
Fraud
In his eighth issue, the father contends that the trial court erred by ruling against his affirmative fraud claim. The father does not present any argument or authorities for this issue but instead references his fourth and fifth issues, which present his contract defenses to the 2007 agreement. Where an appellant's brief "does little more than summarily state his point of error, without citations to legal authority or substantive analysis, it is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue." Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also TEX. R. APP. P. 38.1. We hold that the father has inadequately briefed his eighth issue and that it is waived. See Wheeler, 95 S.W.3d at 646.
We overrule the father's eighth issue.
Conclusion
We affirm the judgment of the trial court.
Footnotes:
[1] In his statement of his fifth issue, the father also suggests that the 2007 agreement is "against public policy." He has briefed no public policy argument, and we, therefore, do not address that issue.
[2] The father also asserts on appeal that the grandparents have more money and education than he does, facts which have both been identified as possible considerations in a procedural unconscionability analysis. See El Paso Natural Gas Co. v. Minco Oil & Gas Co., 964 S.W.2d 54, 61 (Tex. App.-Amarillo 1998), rev'd, 8 S.W.3d 309 (Tex. 1999). We note that El Paso Natural Gas does not hold that financial or educational imbalance are necessary or sufficient factors but only that they may be considered by the court. We have found no evidence in the trial record of the parties' respective financial status or education level.
[3] We do not reach the substantive prong of the unconscionability test. However, we note that while the trial court did not issue findings of fact or conclusions of law, it did state for the record its rejection of the father's unconscionability argument:
Really it's a bit disingenuous for the [father] to present that he was victimized by this process, because if anybody was victimized by it, it was the grandparents. They're the ones that agreed to go along with this contractual process, and you could make the argument that they put their legal rights and interest more in jeopardy than he did by entering into this kind of an agreement.
[4] The trial court's order states, in relevant part:
On April 8, 2009 the Court considered the Movant Shay McConnell's Motion to Dismiss and Motion for Sanctions and ORDERS that Motion to Dismiss is GRANTED in part as detailed below and all other matters are held over.
IT IS ORDERED that the Suit to Modify the Parent Child Relationship is dismissed, leaving only Petitioner's potential contract claims. IT IS FURTHER ORDERED that Petitioners have until 5:00 p.m. on April 14, 2009 to amend their contract claim, if any.
IT IS FURTHER ORDERED that discovery response time for discovery propounded by Petitioners to Respondent Shay McConnell will not begin to run until and unless Petitioners amend their contract claims.
The grandparents filed their second amended petition on April 14, as directed by the trial court.
CASE INFO: First Court of Appeals (Houston) - No. 01-10-00300-CV - Opinion release date: 1/27/2011
Parental presumption given effect after parent's murder; trial court's custody order in favor of grandparents reversed
FACTUAL BACKGROUND AND CASE HISTORY
At the time of their mother's murder, J.C. was four years old and S.C. was eight. A temporary order was entered in March 2007, appointing Rubio and the [Maternal Grandparents] as temporary joint managing conservators of the children. The order was modified in May 2008, sometime after [Husband]'s release from police custody. Under the terms of the modified order, [Husband] was to have possession of J.C. two nights each week, with the [Maternal Grandparents] having possession at all other times. The order further stated that the [Maternal Grandparents] were to have possession of S.C. only upon S.C.'s request. In May 2009, the order was modified a second time to afford [Husband] extended periods of possession with his daughter.
A hearing on the merits was conducted in December 2009. By that time, J.C. had been living with the [Maternal Grandparents] for more than two and a half years. The [Maternal Grandparents] had not seen S.C., however, since early 2007, just a few months after his mother's death. The children's psychologist, Carol Stevens, recommended that S.C. should not be ordered to stay with the [Maternal Grandparents]. According to Stevens, S.C. maintained a close relationship with his father and he feared losing [Husband] to the [Maternal Grandparents]. S.C. was particularly afraid that Mr. Angel might kill [Husband], a threat he apparently made in the presence of S.C. on the first anniversary of Socorro's death.
During the hearing, Stevens also testified that J.C. should remain in the custody of her grandparents. Stevens found that J.C. had developed a separation anxiety disorder following her mother's death, and based on her professional observations, the target of J.C.'s disorder was the potential loss of her maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would not be in the child's best interest. Indeed, if J.C. were to be taken away from the [Maternal Grandparents], Stevens testified that "the child will suffer, her emotional health will suffer."
Although [Husband] repeatedly denied any involvement in his wife's murder, [Mother's] family suggested that she still may have suffered at the hands of his abuse. For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina Morgan, Socorro's cousin, also claimed that she observed scratches on Socorro's neck several years before her death. Neither witness could testify as to the exact cause of the injuries, though both claimed that Socorro was afraid of her husband. In fact, Socorro specifically told Morgan that she was afraid of [Husband] hitting her. In demonstrating this fear, Morgan recounted one discussion where Socorro offered to buy an expensive necklace for Morgan's daughter. Socorro had fought with her husband over money in the past, and Socorro allegedly warned Morgan, "It's only one thing that I don't want you to say anything to nobody because I don't want him to know because we will get into a big argue [sic] again and he might hit me this time and I might left [sic]."
The trial judge conducted an in camera, off-the-record interview with J.C. In open court, the trial judge stated that his decision was based on the witness testimony and his observation of the child during that session in chambers. The trial judge explicitly cited Stevens's recommendation in finding that uprooting J.C. from the [Maternal Grandparents] would cause "some emotional danger to the child" or an "immediate threat of some sort of damage."
[Husband] timely filed a motion for new trial and a request for findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and findings of fact and conclusions of law were never entered. This appeal followed.
CONCLUSION
As nonparents seeking managing conservatorship, the [Maternal Grandparents] were required to establish by a preponderance of the evidence that the parental presumption was overcome. The [Maternal Grandparents] contend that the presumption was rebutted by implied findings that the appointment of [Husband] as managing conservator would significantly impair the emotional development of J.C., and that [Husband] had a history or pattern of physical abuse directed against his wife. We have reviewed the evidence in the light most favorable to those findings, which [Husband] has now challenged on appeal. After indulging every reasonable inference in the record that would support the findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not, we conclude that the record is without any evidence sufficient to overcome the parental presumption. Therefore, the trial court abused its discretion in naming the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C.
We reverse the judgment of the trial court and remand for that court to render judgment naming [Husband], as the natural parent, sole managing conservator of his daughter. The provisions of the trial court's judgment regarding S.C. should remain the same. The trial court may find it necessary to conduct further hearings on matters relating to the terms and conditions for possession of J.C. See Lewelling, 796 S.W.2d at 168-69.
Click below to read the entire appellate opinion by Houston Court of Appeals Justice Tracy Christopher
At the time of their mother's murder, J.C. was four years old and S.C. was eight. A temporary order was entered in March 2007, appointing Rubio and the [Maternal Grandparents] as temporary joint managing conservators of the children. The order was modified in May 2008, sometime after [Husband]'s release from police custody. Under the terms of the modified order, [Husband] was to have possession of J.C. two nights each week, with the [Maternal Grandparents] having possession at all other times. The order further stated that the [Maternal Grandparents] were to have possession of S.C. only upon S.C.'s request. In May 2009, the order was modified a second time to afford [Husband] extended periods of possession with his daughter.
A hearing on the merits was conducted in December 2009. By that time, J.C. had been living with the [Maternal Grandparents] for more than two and a half years. The [Maternal Grandparents] had not seen S.C., however, since early 2007, just a few months after his mother's death. The children's psychologist, Carol Stevens, recommended that S.C. should not be ordered to stay with the [Maternal Grandparents]. According to Stevens, S.C. maintained a close relationship with his father and he feared losing [Husband] to the [Maternal Grandparents]. S.C. was particularly afraid that Mr. Angel might kill [Husband], a threat he apparently made in the presence of S.C. on the first anniversary of Socorro's death.
During the hearing, Stevens also testified that J.C. should remain in the custody of her grandparents. Stevens found that J.C. had developed a separation anxiety disorder following her mother's death, and based on her professional observations, the target of J.C.'s disorder was the potential loss of her maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would not be in the child's best interest. Indeed, if J.C. were to be taken away from the [Maternal Grandparents], Stevens testified that "the child will suffer, her emotional health will suffer."
Although [Husband] repeatedly denied any involvement in his wife's murder, [Mother's] family suggested that she still may have suffered at the hands of his abuse. For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina Morgan, Socorro's cousin, also claimed that she observed scratches on Socorro's neck several years before her death. Neither witness could testify as to the exact cause of the injuries, though both claimed that Socorro was afraid of her husband. In fact, Socorro specifically told Morgan that she was afraid of [Husband] hitting her. In demonstrating this fear, Morgan recounted one discussion where Socorro offered to buy an expensive necklace for Morgan's daughter. Socorro had fought with her husband over money in the past, and Socorro allegedly warned Morgan, "It's only one thing that I don't want you to say anything to nobody because I don't want him to know because we will get into a big argue [sic] again and he might hit me this time and I might left [sic]."
The trial judge conducted an in camera, off-the-record interview with J.C. In open court, the trial judge stated that his decision was based on the witness testimony and his observation of the child during that session in chambers. The trial judge explicitly cited Stevens's recommendation in finding that uprooting J.C. from the [Maternal Grandparents] would cause "some emotional danger to the child" or an "immediate threat of some sort of damage."
[Husband] timely filed a motion for new trial and a request for findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and findings of fact and conclusions of law were never entered. This appeal followed.
CONCLUSION
As nonparents seeking managing conservatorship, the [Maternal Grandparents] were required to establish by a preponderance of the evidence that the parental presumption was overcome. The [Maternal Grandparents] contend that the presumption was rebutted by implied findings that the appointment of [Husband] as managing conservator would significantly impair the emotional development of J.C., and that [Husband] had a history or pattern of physical abuse directed against his wife. We have reviewed the evidence in the light most favorable to those findings, which [Husband] has now challenged on appeal. After indulging every reasonable inference in the record that would support the findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not, we conclude that the record is without any evidence sufficient to overcome the parental presumption. Therefore, the trial court abused its discretion in naming the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C.
We reverse the judgment of the trial court and remand for that court to render judgment naming [Husband], as the natural parent, sole managing conservator of his daughter. The provisions of the trial court's judgment regarding S.C. should remain the same. The trial court may find it necessary to conduct further hearings on matters relating to the terms and conditions for possession of J.C. See Lewelling, 796 S.W.2d at 168-69.
Click below to read the entire appellate opinion by Houston Court of Appeals Justice Tracy Christopher
Tuesday, October 6, 2009
Appointment of Grandparents as Possessory Conservators Undone on Appeal
Austin Court of Appeals reverses order granting grandparents visitation rights to grandchildren after death of their son, the father of the children. Mother's right to be free from interference vindicated where mother was a fit parent and where circumstances of the children weren't such as to provide standing to paternal grandparents to sue for conservatorship.
M E M O R A N D U M O P I N I O N
Appellees Larry and Maggie Svoboda filed a petition for grandparent possession and access and sought to be named managing conservators of L.R.S., L.K.S., and C.T.S., the children of their son Kevin Svoboda, who is deceased, and appellant Rebecca Svoboda.
The trial court ordered that Larry and Maggie be awarded possession of the children for specified periods during the Christmas, spring break, and summer holidays and appointed Larry and Maggie as possessory conservators of the children "during their court-ordered periods of possession." Rebecca appeals, arguing that the trial court abused its discretion in naming Larry and Maggie possessory conservators and in granting Larry and Maggie's petition for grandparent access.
We reverse and dismiss in part and reverse and render in part.
BACKGROUND
Kevin and Rebecca were married in 1990. During their marriage, they had three children, L.R.S., L.K.S., and C.T.S. At the time of Kevin's death in 2007, the children were aged eight, five, and three. On July 21, 2008, Kevin's parents, Larry and Maggie, filed their original petition seeking to be named sole managing conservators of the children based on their belief that Rebecca's care of the children subjected them to an environment that presented a serious risk to their physical health and emotional well-being. In the alternative, Larry and Maggie sought grandparent access for visitation, arguing that denying them access to the children would significantly impair the children's physical health and emotional well-being.
The trial court held a hearing on February 25, 2009. During the first part of the hearing, the trial court heard testimony concerning the issue of Larry and Maggie's standing to bring an original suit to be named managing conservators of the children. See Tex. Fam. Code Ann. § 102.004(a)(1) (providing that grandparents may file original suit requesting managing conservatorship if they produce satisfactory proof that order requested is necessary because child's present circumstances would significantly impair child's physical health or emotional development).
Maggie testified that although she and her husband live in North Dakota, a great distance from Rebecca and her children in Mills County, they had always been involved in the children's lives and had a close relationship with them.
She stated that she and Larry made frequent visits to Texas to help Kevin and Rebecca when they were moving and making home repairs, particularly after Kevin was diagnosed with cancer, and that they helped Rebecca financially after Kevin died. Maggie testified that she believed she was being forced out of the children's lives in a way that was damaging to the children and that preventing her from having access to the children would impair their emotional and physical development.
She further testified that she had concerns about L.R.S. regarding a possible but unsubstantiated incident of sexual abuse by a male child at her daycare. Maggie stated that she had been given no information regarding the incident, but she worried that the environment L.R.S. is in may be dangerous because L.R.S. might not be receiving counseling and might "never be mentally coping in the world."
She explained that she had no way of knowing whether L.R.S. was receiving the therapy she needed. She further stated that Rebecca had cut off her home telephone line and did not stay in frequent contact with her and Larry.
Asked about the event that precipitated their filing the petition for conservatorship, Maggie explained that in March 2008 she and Larry traveled to Texas and attempted to see the children. She recounted that Rebecca refused to let them see the children unless they signed "a paper" stating that they agreed not to medicate the children or remove them from Brown or Mills County. Maggie testified that she did not sign the paper because Rebecca's own parents had not been required to do so and because she felt that, by signing it, she would be admitting guilt for having overmedicated the children in the past.
Maggie also testified about the children's performance in school. She stated that she believed L.R.S. had been diagnosed with dyslexia and that both L.R.S. and L.K.S. had been held back a year in school. Asked whether she thought not passing in school reflected something about their environment that may be endangering the children's emotional and physical development, Maggie answered:
Yes, I do. I don't believe they are getting the rest they should have. They have to get up way too early in the morning. They don't get their rest or the time to do the schoolwork that they need to do. [L.R.S.] has all of these chores that she has to do when she gets home and chores before she goes to school. And they have to get up at 5:00 in the morning in order--they had to get up at 5:00 in the morning in order for [Rebecca] to be at work at 8:00.
She stated that the children's teeth were not well taken care of and that often they did not have toothbrushes or they had to share toothbrushes. Finally, Maggie discussed the emotional support that she and her family would offer the children to help them deal with their father's death, noting that Rebecca did not want her or Larry to speak to the children about their father because she felt that it would upset them too much.
Larry testified, in very general terms, that he believed depriving the children of a relationship with him and Maggie would significantly impair the children's emotional and physical well-being. Larry and Maggie's son Shelley and daughter Petrina also testified, stating that Larry and Maggie had been an important part of the children's lives. They testified, also in very general terms, that they believed it would significantly impair the children's emotional well-being to deny them time with their paternal grandparents. On cross-examination, both Shelly and Petrina testified that Rebecca had never denied them access to the children and that they had always had a fairly good relationship with Rebecca.
At the close of this testimony, the trial court ruled on the standing issue, finding that Larry and Maggie had met the standing requirements of the Texas Family Code because they had shown by a preponderance of the evidence that denial of possession or access to the children would significantly impair the children's emotional well-being. The court further found, however, that there was no evidence that Rebecca was unfit as a mother or that the children were in any physical danger.
During the second portion of the hearing, the trial court heard evidence on the issues of conservatorship and possession. Rebecca testified extensively concerning her strained relationship with her in-laws, particularly Maggie, and about her efforts to ensure that Larry and Maggie's visits with her children conformed with how she and Kevin wished to raise their children.
She also discussed how the parties had struggled to agree to a visitation schedule after Kevin passed away and that she repeatedly avoided Larry and Maggie's requests to have the children visit them in North Dakota because she felt the children were not old enough to travel that far by themselves. Rebecca also described her version of the events that led to Larry and Maggie's filing their petition for conservatorship and access. She said that Larry and Maggie had traveled to Texas in March to see the children and a dispute arose when they refused Rebecca's request that they agree in writing to certain conditions that she and the family's grief counselor had determined were necessary for appropriate visitation to occur. The two subsequent visits were supervised at the Family Services Center. Larry and Maggie both acknowledged on cross-examination that unsupervised visits would have been possible if they had agreed to the guidelines that Rebecca had requested.
Rebecca also responded to Maggie's testimony that the children were performing poorly in school. She stated that L.R.S. had attention-deficit disorder, not dyslexia; that none of her children had been held back in school; and that all of the children had satisfactory report cards and were performing at or above their grade level. Rebecca further testified that she and her children were very involved in their church, had an "amazing" support system, and met weekly with a counselor for several months after Kevin passed away. Rebecca stated that the children had all been released from the counselor's care because of their progress. She testified that although she wanted her children to have a relationship with Kevin's family, she felt that she should be able to decide what visitation would be appropriate and what boundaries should be set. Rebecca acknowledged that although she had disconnected the telephone line at her house, Maggie and Larry could still contact her by e-mail and reach her and the children on her cell phone.
After both sides rested, the trial court ruled on the conservatorship issue. The court named Rebecca sole managing conservator and named Larry and Maggie possessory conservators during the times of their possession, beginning with a three-day visitation during the 2008 Christmas holiday. The court ordered that Larry and Maggie be granted all the privileges and powers of possessory conservators under the family code during their periods of possession, with the caveat that they could not give the children any medication without Rebecca's prior approval, except in an emergency.
This ruling was memorialized in the court's final written order, which granted Larry and Maggie possession of the children during each Christmas and spring break and for two weeks during the summer, as well as access through monthly telephone calls during every month in which no periods of possession were ordered. Rebecca appeals, arguing that the trial court erred in (1) naming Larry and Maggie possessory conservators, (2) determining that Larry and Maggie had standing to bring suit for conservatorship, (3) awarding Larry and Maggie court-ordered periods of possession and access, and (4) finding that Rebecca was a fit parent but then failing to apply the presumption that a fit parent acts in her child's best interest.
[section on applicable standard of review in appeal from grandparent custody, visitation and access decisions omitted]
DISCUSSION
In her first and second issues, Rebecca argues that Larry and Maggie lacked standing "to sue for custody--i.e., sole managing conservatorship, joint managing conservatorship, or possessory conservatorship," and that the trial court therefore erred in naming Larry and Maggie possessory conservators. Larry and Maggie sought by their original petition to be named sole managing conservators of the children. The trial court, after hearing the testimony of Larry and Maggie and their children, Shelley and Petrina, found that "the grandparents have shown and established by the preponderance of the evidence that that denial of possession or access to their grandchildren would significantly impair the grandchildren's emotional well-being." Accordingly, the court determined that Larry and Maggie had standing to file an original petition seeking managing conservatorship.
As an initial matter, we note that the trial judge's oral findings and written order both reflect that he ruled on the standing question under section 153.433 of the family code. Section 153.433, as will be discussed in connection with Rebecca's remaining issues on appeal, governs the circumstances under which grandparents may seek possession of or access to their grandchild contrary to the parent's wishes. See Tex. Fam. Code Ann. § 153.433 (requiring, among other elements, that grandparent prove by preponderance of evidence that denial of possession of or access to child would significantly impair child's physical health or emotional well-being).
A grandparent's standing to bring an original suit affecting the parent-child relationship, on the other hand, is governed by section 102.004(a) of the family code, which requires that the petitioner present satisfactory proof that "the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." Id. § 102.004(a)(1).
Nonetheless, because it is clear from the context that the trial judge intended to make the requisite finding related to the standing issue, we will also treat the trial court's finding as one made under section 102.004--i.e., that Larry and Maggie had standing to bring the conservatorship suit because the children's present circumstances would significantly impair their emotional development. See id. § 102.004(a)(1).
We disagree with the trial court, however, that the evidence supports Larry and Maggie's standing to file an original suit seeking conservatorship of the children.
"[A] grandparent has standing to bring a suit affecting the parent-child relationship only in certain extreme circumstances." Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.--San Antonio 1990, writ denied). The legislature, recognizing the potential for disruption posed by the filing of an original suit for conservatorship, set a high burden for petitioners to meet in grandparent-initiated suits. See, e.g., Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (noting that "the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.--Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest.").
In determining standing, we examine the children's "present circumstances" as of July 21, 2008, the date Larry and Maggie filed their petition. See In re Vogel, 261 S.W.3d 917, 922 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993)).
The trial court found that the children were not subject to any physical harm, and Larry and Maggie do not contest this finding. As to the children's emotional development, the record does not contain more than a scintilla of evidence that the children risked significantly impaired emotional development in their present circumstances. The children's "present circumstances" entailed residing with their mother, whom the trial court determined to be a loving and "fit" mother, and having limited contact with their paternal grandparents.
Although Larry and Maggie testified that they believed it was in the children's best interest for them to have contact with their late father's family and that depriving the children of a relationship with their paternal grandparents would be harmful to the children's emotional well-being, the record establishes that the children were not completely deprived of contact with their father's family. On the contrary, Maggie testified that she had access to the children by phone--including Rebecca's cell phone--and that, even after the dispute in March 2008, she and Larry were permitted to have supervised visitation with the children at the Family Services Center. Furthermore, Maggie acknowledged that if she had agreed to the conditions Rebecca sought to impose on her behavior, she would have been allowed unsupervised visitation. Shelley and Petrina, the children's paternal uncle and aunt, also testified that they had never been denied possession of or access to the children.
In addition, Maggie's statements that she was concerned whether the children, L.R.S. in particular, were receiving appropriate counseling and whether they were coping with their father's death are not evidence that the children's present circumstances posed a significant threat to their emotional development. Mere speculation that the children's emotional well-being might be at risk is not sufficient proof to confer standing under section 102.004(a). See Von Behren, 800 S.W.2d at 922-23 (grandmother's allegation that grandchild might have been sexually abused by her father was insufficient to confer standing).
On this record, we conclude that the trial court erred in determining that the children's present circumstances posed a significant danger to their emotional development. Compare In re M.J.G., 248 S.W.3d 753, 760 (Tex. App.--Fort Worth 2008, no pet.) (evidence of grandparents' significant relationship with grandchildren did not support standing under section 102.004(a) in light of absence of testimony that children's mother did not also perform parenting duties or that grandparent-grandchild relationship was so essential to children's well-being that they would be physically or emotionally harmed if they did not live with grandparents), with Vogel, 261 S.W.3d at 922 (grandparent had standing based on testimony that child's father was long-term alcoholic who could not financially provide for child's needs and that it would be "harmful" for child to live with his father), and In re R.D.Y., 51 S.W.3d 314, 318-19, 325 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (grandmother had standing under section 102.004 when record showed that mother physically abused child, was homeless and unemployed, did not feed or bathe child, and was involuntarily committed to psychiatric treatment facility). Accordingly, we hold that Larry and Maggie lacked standing to bring their original petition seeking to be named managing conservators of the children and that the trial court erred in naming Larry and Maggie possessory conservators.
We sustain Rebecca's first and second issues.
[See section discussing and reversing grant of access rights to paternal grandparents in separate blog post]
CONCLUSION
Having determined that Larry and Maggie lacked standing to file an original petition for conservatorship, we reverse the portion of the trial court's order naming them possessory conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction. Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and access to the children, we reverse the remainder of the trial court's order and render judgment denying their petition for possession and access.
J. Woodfin Jones, Chief Justice
Filed: October 1, 2009
SOURCE: Austin Court of Appeals' opinion in Cause No. 03-09-00189-CV (10/1/09) [footnotes omitted]
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