Jury’s award of custody to nonparents reversed on appeal

MEMORANDUM OPINION

Appellant, [Child’s Mother], challenges the trial court’s August 4, 2010 order, entered after a jury trial, appointing appellees, Bryan James Danet and William Todd Kranz, as the sole managing conservators of [Mother]’s minor child, J.A.B.[1]  In her first two issues, [Mother] contends that the evidence is legally and factually insufficient to support the jury’s finding that her appointment as sole managing conservator would significantly impair the child’s physical health or emotional development and the trial court erred in not allowing her to present testimony from out-of-state witnesses via telephone.  In her third issue, [Mother] requests that this Court enforce the parties’ partial-settlement agreement, signed after the trial court’s order, depending on the resolution of this appeal.

We reverse and render judgment.

Background

On March 31, 2006, Child Protective Services (“CPS”) removed the child from the custody of [Mother] and placed him in the foster care of Danet and Kranz.  Although CPS chose not to seek termination of [Mother]’s parental rights, Danet and Kranz, on October 2, 2007, filed their petition in this suit affecting the parent-child relationship (“SAPCR”), seeking appointment as the child’s joint managing conservators.  In response, [Mother] filed an amended answer and original counter-petition, seeking appointment as the child’s sole managing conservator.  In 2008, the parties entered an agreement[2] naming Kranz and Danet as temporary managing conservators of the child and [Mother] as the temporary possessory conservator of the child during the pendency of court proceedings. 

At trial, Kranz testified that he and Danet had taken care of the child for four years and four months.  After CPS decided not to seek termination of [Mother]’s parental rights, he and Danet, in October 2007, decided to “get involved in the case” and file their SAPCR petition to be appointed as joint managing conservators.  When they first received custody in April 2006, the child was seven months old and suffered from a “very severe diaper rash.”  Kranz thought that the child had been “starving,” as if “he didn’t know when his next meal was going to be.”  After Kranz and Danet received custody, [Mother] “pretty much abandoned” the child by moving to Wisconsin and not visiting him for six months.  She came down to visit the child “on average” only “two [weekends] a year” even though her visitation schedule allowed monthly visits.  In addition, [Mother] would occasionally bring with her “different men” whom the child did not know, and she never brought “the same person twice.”

Kranz explained that [Mother] had initially thought that the child’s father was Joseph Alaniz, who was her boyfriend at the time she lost custody of the child.  However, a paternity test revealed the father to be George Hogeland, whom [Mother] lived with for five months before she moved to Houston.  About four months after losing custody of the child, [Mother] was arrested for “disturbance of the peace” after fighting with Alaniz in a Family Dollar store parking lot.  Shortly thereafter, [Mother], pregnant with her second child, who was Alaniz’s son, moved to Wisconsin.  After she had given birth to Alaniz’s son, Alaniz “beat the crap out of her in the hospital.”  At the time of trial, Alaniz was incarcerated and scheduled to be released in October 2011.

Kranz noted that in late 2006, [Mother] told him that if she were to take a drug test, “it would turn out dirty.”  [Mother] was then ordered by CPS to take a drug test within 24 hours, but she did not comply.  She had also informed Kranz that Alaniz had a drug problem.  

Kranz further testified that in March 2008, [Mother] came to Houston for a weekend visit with the child.  After visiting on a Saturday, [Mother] called on Sunday morning, explaining that she was not feeling well and would meet him and the child at the Houston Children’s Museum at noon, an hour later than previously scheduled.  She did not arrive at the museum until 2:20 p.m., and she “very sneakily walk[ed] past the admission where you pay.” 

Kranz noted that in 2008, [Mother] brought her younger son and a man, “Michael,” on her visit to the child.  Afterwards, [Mother] failed to call the child for three weeks because they had “decided to go to New Orleans,” where Michael let “some girl . . . borrow their truck.”  [Mother] told Kranz that “the truck [had] disappeared, so [[Mother], her younger son, and Michael] had to take [a] bus back to Wisconsin,” leaving [Mother] without a telephone.  In watching [Mother] interact with her other son, Kranz noted that “there doesn’t appear to be respect for her,” and the child “screams at her” and “slaps” people.    

Danet testified that during [Mother]’s visits, the child would “get[] very scared and [cry] at night,” which he described as “very typical after pretty much every visit that he has when [[Mother]] comes into town.”  Although Kranz and Danet encouraged [Mother] to call the child and scheduled regular telephone calls, sometimes they “would come home for the phone call and then she wouldn’t call at all.”  In the six months prior to trial, the child would complain that he did not want to talk with [Mother].  However, Danet explained that if he and Kranz were to be appointed managing conservators, they would still encourage the child to remain in contact with [Mother].

Linda McDonald, a co-worker and family friend of Kranz and Danet, testified that in August 2008, she supervised one of [Mother]’s visits.  Once, when [Mother] “wanted to make a special celebration” for the child’s birthday, they visited her at a local hotel where [Mother] was staying.  [Mother] had brought her younger son and a “friend that was introduced as Dennis,” who had “very little interaction” with the child.  The amount of time that [Mother] spent with the child was “very limited.” 

Rebecca Weiser, a co-worker and friend of Kranz, testified that in August 2009, she supervised a visit at the hotel in which [Mother] was staying.  She noted that while the child was in the hotel pool, he “went under three times,” and Weiser had to “pull[] him up out of the water” each time.  This caused her to be “concern[ed] for [the child’s] safety.”  On cross-examination, Weiser admitted that she did not move to terminate the visitation or contact CPS after the incident and that Kranz was supervising the child as well.   

[Mother] testified that when she, with her mother, moved to Houston in December 2004, she was unaware that she was already pregnant with the child.  Shortly after arriving in Houston, she met Alaniz and, despite his abusive tendencies, she later moved into a house with him in mid-2005.  She noted that Alaniz would hide her driver’s license, delete her telephone numbers, and attempt to control her.  In December 2005, police officers were dispatched to their home to investigate alleged domestic violence, and, by March 2006, [Mother] was “just waiting for an opportunity to get out” and move away from Alaniz.  She explained that she should have left the relationship sooner, but she was “really screwed up” at the time and “dismissed a lot of [Alaniz’s] behavior” because she “thought it was important to have a family unit.” 

On the morning of March 31, 2006, [Mother] planned to escape from Alaniz’s abuse and take her child with her.  The child had been diagnosed with “thrush,” a yeast infection, which, [Mother] explained, accounted for his diaper rash.  To treat the thrush, she packed two antibiotics prescribed by the child’s pediatrician.  Because Alaniz had hidden her driver’s license, [Mother] had to “go through half the house” to find it and left the house “messy.”  She then took the child with her to a bus stop to take a bus to her mother’s house in Wisconsin while Alaniz was away.  However, Alaniz found [Mother] at a bus stop, confronted her, and accused her of being a “drug user.”  He then “[took] off on a bicycle with” the child, [Mother] called for emergency assistance, and a police officer drove her back to the house in a patrol car.  Alaniz and the child were already at the house, and the police officer, after questioning [Mother] and Alaniz, took the child away in a patrol car.  [Mother] explained that because the officer had taken the child away, she did not have time to feed him or apply his thrush medication.   [Mother] was quite upset and spent the weekend in a hotel room.  She then attended a court hearing the following Monday, and the court ordered her to submit to a narcotics test, which came back positive for cocaine.  She submitted an affidavit in which she named Alaniz as the child’s father, which she believed to be true at the time.  The child was not returned to [Mother] at the hearing. 

After the hearing, [Mother] moved back to Wisconsin to join her mother and notified CPS that she had moved.  In June 2006, CPS informed her that it would seek “unrelated adoption” for the child.  [Mother] then returned to Houston for a second hearing, and CPS submitted to her a Family Service Plan (“FSP”).  [Mother] understood that she could regain custody of the child if she “not just completed [the FSP] but did . . . very well.”  Later, in the summer of 2006, [Mother] stayed in Houston with Alaniz.  She attended parenting courses, underwent a psychological evaluation, and stayed two nights at an “in-patient drug facility” pursuant to the FPS. 

In September of 2006, [Mother] returned to Wisconsin, and Alaniz followed her.  After the birth of her second child, Alaniz “beat [her] up” in the hospital room and was arrested.  [Mother] later bought Alaniz a bus ticket to return to Houston, while she remained in Wisconsin.  There, she followed the FSP by taking parenting and relationship courses, attending drug and domestic violence counseling sessions, and undergoing follow-up psychological evaluations.  At the time, she was working as a cashier at a dollar store and had a second job “doing clerical work.”   She was living in “Section 8 housing” with her mother and second child and receiving food stamps. 

[Mother] admitted that she had previously been arrested in Massachusetts on a charge relating to heroin, and, in 1999, she was convicted in Wisconsin for possession of marijuana and battery.  She also admitted that, in 2006, she used cocaine while pregnant with her younger son, causing her to fail the court-ordered narcotics test.  [Mother] further admitted that in July 2007, she was scheduled to fly to Houston for a visitation, but the airline would not allow her on the plane “due to [her] intoxication,” so she boarded an early flight the next morning. 

[Mother] explained that if she was awarded custody of the child, she would take him back to Wisconsin and continue to live with her mother.  She noted that her family could not come to Houston to visit the child because her mother had health problems and Kranz and Danet were not cooperative with them.  Specifically, [Mother] asserted that they were “alienating” and “isolating” her from the child.  Kranz and Danet would not disclose the child’s medical records to her, moved him to different schools without informing her, and “took him out of school” when [Mother] planned to visit him in class.  She further explained that the financial burden of traveling to Houston and the time that it took to raise her second son made it difficult for her to make regular trips to Houston. 

Sufficiency of the Evidence

In her first issue, [Mother] argues that the evidence is legally and factually insufficient to support the jury’s finding that her appointment as sole managing conservator would significantly impair the child’s physical health or emotional development.  She asserts that most of the evidence against her relates only to her “past conduct . . . which occurred approximately four or more years prior to trial    . . . [and] does not implicate [her] present parental fitness.”  [Mother] further asserts that the evidence is “legally insufficient to overcome the parental presumption as a matter of law” and consists of “minor, insubstantial conduct” that only establishes that she is an “imperfect person.”

Danet and Kranz argue that the evidence is legally and factually sufficient to support the jury’s finding that they should be the child’s sole managing conservators because removing the child from their home at the time of trial “would significantly impair his emotional development.”  They also assert that

[T]he jury heard evidence that [[Mother]’s] bad parenting would significantly impair [the child’s] physical health or emotional development.  Less than a year before trial, [the child] nearly drowned in a swimming pool while [[Mother]] was supposed to be watching him.  And [[Mother]] repeatedly made extraordinarily bad decisions related to her visits with [the child], including being so drunk at the airport that she was not allowed to fly.  The evidence, therefore, supports the jury’s finding that awarding [[Mother]] sole managing conservatorship would significantly impair [the child’s] physical health or emotional development.

 We will sustain a legal-sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).  In conducting a legal-sufficiency review, a court must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it.  Id. at 822.  The term “inference” means,

In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (citing Black’s Law Dictionary 700 (5th ed. 1979)).  For a jury to infer a fact, “it must be able to deduce that fact as a logical consequence from other proven facts.”  Id. 

If there is more than a scintilla of evidence to support the challenged finding, we must uphold it.  Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).  “‘[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’”  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).  If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it.  Id.  However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the fact-finder must be allowed to do so.  Id.  A reviewing court cannot substitute its judgment for that of the fact-finder, so long as the evidence falls within this zone of reasonable disagreement.  Id.

In conducting a factual-sufficiency review, we must consider, weigh, and examine all of the evidence that supports or contradicts the fact-finder’s determination.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  We may set aside a verdict only if the evidence supporting it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  When conducting a factual-sufficiency review, we must not merely substitute our judgment for that of the fact-finder. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).  The fact-finder is the sole judge of the credibility of witnesses and the weight to be given to their testimony.  Id.

In any case involving an issue of conservatorship, the best interest of the child must always be the primary consideration of the trial court.  Tex. Fam. Code Ann. § 153.002 (Vernon 2008).  The court must presume that the best interest of the child is served by appointing a biological parent as sole managing conservator or both biological parents as joint managing conservators.  See id. § 153.131(a) (Vernon 2008); see also In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963).  Nonparents seeking conservatorship carry a “heavy burden” of overcoming this presumption.  Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).  It is no longer adequate to offer evidence that a nonparent would be a better custodian of a child.  Id.  Instead, the parental presumption may only be rebutted with proof of certain findings prescribed by statute.  Id.

A nonparent may rebut the presumption in favor of a biological parent only if evidence is produced showing that appointment of the biological parent as managing conservator would “significantly impair the child’s physical health or emotional development.”  Tex. Fam. Code Ann. § 153.131(a); see In re R.T.K., 324 S.W.3d 896, 902–03 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  A nonparent may also overcome the presumption by producing evidence of “a history or pattern of past . . . physical . . . abuse by [a] parent directed against the other parent, a spouse, or a child.”  Tex. Fam. Code Ann. § 153.004(b) (Vernon 2008).  In disputes between a parent and a nonparent, the Texas Legislature has mandated that “close calls” should be decided in favor of the biological parent.  Lewelling, 796 S.W.2d at 168.  Here, the trial court instructed the jury, in pertinent part, as follows:

The biological parent shall be appointed sole managing conservator, in preference to a non-parent, unless appointment of the biological parent would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.

“Significantly Impair” means the non-parent must affirmatively prove by a preponderance of the evidence through specific actions or omissions of the parent that demonstrate that an award of custody to the parent would result in physical or emotional harm to the child.

[Mother] notes that much of the record evidence, including evidence of the child’s “severe diaper rash” and the condition of her and Alaniz’s home when police officers took the child, her use of cocaine while she was unknowingly pregnant with her second child, her two misdemeanor convictions, and her intoxication at an airport in 2007, concerns conduct that occurred three or more years prior to trial.  She asserts that this evidence does not implicate her “present parental fitness” or support the jury’s finding that her conservatorship would significantly impair the child’s physical health or emotional development. 

In support of her assertion, [Mother] relies on In re S.W.H, 72 S.W.3d 772 (Tex. App.—Fort Worth 2002, no pet.).  In S.W.H, the court held that evidence that a mother had been twice incarcerated for testing positive for narcotics, in violation of her probation and more than four years prior to trial, was insufficient to support a finding that the appointment of the mother as managing conservator of the child would significantly impair the child.  Id. at 777–78.  Noting that the mother had presented uncontroverted evidence that she had remained “clean” for three years prior to trial, the court explained that “evidence of past misconduct may not, by itself, be sufficient to show present parental unfitness.”  Id. at 778.    Furthermore, the Thirteenth Court of Appeals has noted that if a parent “is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.”  May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied); see also In re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, writ denied) (“When determining fitness of a parent, the material time to consider is the present.”).  However, past misconduct may be considered due to the “permissible inference that an adult person’s future conduct may well be measured by [their] recent deliberate past conduct as it may be related to the same or a similar situation.”  Id.

Here, Kranz and Danet’s evidence concerning [Mother]’s more recent conduct in Houston does reveal that [Mother] brought different men with her on her visits with the child, visited the child only twice a year after losing custody of him, showed up late to a visit, tried to board an airplane while intoxicated, “snuck” into the Houston Children’s Museum, and, after travelling to New Orleans following a visit with the child, did not call the child for three weeks.  Weiser did also testify that the child, during one of [Mother]’s visits at a hotel, “went under” the water in a pool three times and she had to pull him out of the water.   This evidence, however, does not establish that [Mother]’s past misconduct is sufficiently linked to her fitness, at the time of trial, to be the child’s custodian.  Kranz and Danet did not present evidence that [Mother]’s past drug use, misdemeanor criminal history, or Alaniz’s domestic violence, all of which occurred approximately four or more years prior to trial, constitute ongoing problems or part of a more recent pattern of behavior.  Thus, the jury could not have reasonably inferred that [Mother]’s more remote conduct implicated her parental fitness, at the time of trial, such that the appointment of her as the sole managing conservator of the child would significantly impair the child’s physical health or emotional development.  See May, 829 S.W.2d at 376–77.

Furthermore, Kranz and Danet’s evidence of [Mother]’s more recent conduct does not itself constitute evidence that the appointment of [Mother] as the sole managing conservator of the child would significantly impair the child’s physical health or emotional development.  Again, “[i]t is no longer adequate to offer evidence that the nonparent would be a better custodian of the child.”  Lewelling, 796 S.W.2d at 167.  The jury could have reasonably inferred that Kranz and Danet would be better custodians of the child based on [Mother]’s actions in sneaking into the Houston Children’s Museum, bringing different men to her visits with the child, and, after a visit with the child, taking a spontaneous trip to New Orleans and not calling the child.  However, there is no evidence that [Mother]’s conduct, albeit clearly inappropriate, constitutes “specific actions or omissions” that demonstrate that awarding her conservatorship would significantly impair the child’s physical health or emotional development.  See Tex. Fam. Code Ann. § 151.131(a). 

Kranz and Danet rely heavily on their evidence that the child “nearly drowned” during one of [Mother]’s visits.  Although Weiser did testify that he “went under” water three times at a hotel swimming pool during a visit, there is no evidence that the child “nearly drowned.”  Indeed, the child was accompanied by three adults: [Mother], Weiser, and Kranz.  And [Mother] had to watch her younger son as well during the visit.  Given these undisputed facts, the jury could not have reasonably inferred that the incident constitutes evidence that [Mother]’s conservatorship would significantly impair the child’s physical health or emotional development. 

Finally, Kranz and Danet argue that, even without reference to [Mother]’s conduct, “removing [the child] from the only home he has ever known” would “significantly impair his emotional development.”  This court has recently held that a trial court could have reasonably concluded that removing a child from “the only person who has consistently cared” for the child would “significantly impair” the child’s development.  McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *6 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (quoting In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). 

Here, as noted above, the trial court’s charge to the jury included an instruction stating that “significantly impair” means “the non-parent must affirmatively prove by the preponderance of the evidence through specific actions or omissions of the parent that demonstrate that an award of custody to the parent would result in physical or emotional harm to child.”  (Emphasis added.)  [Mother] notes that the charge explicitly required Kranz and Danet to prove “specific acts or omissions” on her part to override the parental presumption in her favor and, regardless of our holding in McPherson, “it is the court’s charge . . . that measures the sufficiency of the evidence when the opposing party fails to object.”  Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

“When neither party objects to a jury instruction, an appellate court must review the sufficiency of the evidence in light of the instruction actually given, even if the statement of the law in the charge is not correct, and even if the charge as given effectively increases the burden of proof on a party beyond that actually required by the correct law or results in a ‘more rigorous’ standard of proof.”  See Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston 2011, no pet.) (citing Romero v. KPH Consol., Inc., 166 S.W.3d 212, 220–21 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.23d 62, 71 (Tex. 2000); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 897, n.8 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). 

Here, the trial court’s charge to the jury explicitly required that Kranz and Danet prove, by a preponderance of the evidence, that “specific actions or omissions” of [Mother] demonstrated that her custody of the child would result in physical or emotional harm to the child.  Thus, the jury could not rely solely on Kranz and Danet’s evidence that removing the child from their custody would be difficult and traumatic for the child.  In sum, Kranz and Danet did not present any evidence of [Mother]’s specific acts or omissions from which a fact finder could reasonably infer that the appointment of [Mother], the child’s biological parent, as sole managing conservator of the child would significantly impair the child’s physical health or emotional development.[3]  Accordingly, we hold that the evidence is legally insufficient to support the jury’s finding that Kranz and Danet, as non-parents, should be appointed the child’s managing conservators.  See City of Keller, 168 S.W.3d 802 at 810.

We sustain [Mother]’s first issue.

Conclusion

We reverse the order of the trial court and render an order appointing [Mother] as sole managing conservator of the child.  We also modify the order pursuant to the parties’ partial-settlement agreement and appoint Kranz and Danet as possessory conservators.[4] 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Sharp, and Brown.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00963-CV – 4/12/2012

--------------------------------------------------------------------------------

[1]           See Tex. Fam. Code Ann. § 153.005 (Vernon 2008).

[2]           See Tex. R. Civ. P. 11.

[3]           To the extent that Kranz and Danet argue that any harmful effect of removing the child from their custody would be precipitated by an act or omission of [Mother], whether by her moving to Wisconsin or visiting the child only twice a year, on average, since losing custody, [Mother] notes that she moved to Wisconsin for the purpose of escaping from Alaniz and living with her mother.  She also notes that she did not have the economic means to make more frequent visits to Houston to visit the child.  Furthermore, “the fact that [the child] has lived with [Kranz and Danet] for such a lengthy period is largely attributable to delays” in the judicial proceedings.  See Lewelling, 796 S.W.2d at 168 n.9 (noting parent was not at fault for “lengthy appeals process,” so length of time child spent with non-parents was largely “judicially created”).  Using such a fact to deny a parent conservatorship of her child would “thwart[] the legislatively-mandated parental preference.”  Id.

[4]           In her third issue, [Mother] asks, as do Kranz and Danet, that this court enforce the agreement that “[i]n the event that the Court of Appeals reverses the judgment of the Trial Court and renders judgment appointing [Child’s Mother] as the sole managing conservator . . . [Mother] agrees that [Kranz and Danet] shall be appointed as possessory conservators at the conclusion of this appeal.  In this event, the Parties agree to jointly request the Court of Appeals to implement this Agreement by rendering judgment appointing [Kranz and Danet] as possessory conservators.”  See Tex. R. Civ. P. 11.  Because we reverse the judgment of the trial court and render judgment in favor of [Mother], we render an order appointing Kranz and Danet as possessory conservators pursuant to the terms of the parties’ agreement.  See Tex. R. App. P. 42.1(a)(2)(A) (permitting appellate court to render judgment effectuating agreement of parties).

Is a claim of Adoption by Estoppel, equitable adoption viable in Texas?

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.

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

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] 

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).

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

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