Exclusion of Witness Testimony on Childrens' Best Interest in SAPCR

Family Court Judges should not exclude best-interest evidence lightly in SAPCR proceeding, Court of Appeals Says.

The Texas Legislature has accorded “the best interest of the child” primary importance in the adjudication of child custody disputes and visitation and access issues. Trial judges who hear custody matters are expected to give effect to this policy in their decisionmaking, including their rulings involving procedure and presentation and admission of evidence. As seen in a recent appeal from a SAPCR case tried to a jury in Galveston county, courts of appeals take a dim view of a trial court judge denying a party the right to call witnesses and present evidence on the best interest of the child. In the Galveston case, in which the grandparents sought custody, the trial court had not allowed one of the parents to present any evidence other than his own testimony because he had not brought his trial exhibits and witness list to the pretrial conference. The Court of Appeals found this omission was not a good-enough reason to prevent the introduction of evidence that might a shed more light on what was really best for the children.

[A SAPCR in Texas refers to a suit affecting the parent-child relationship, otherwise know as a child custody/visitation suit.]

AN EXCERPT FROM THE OPINION FOLLOWS:

[T]he sanctions imposed in this case are difficult to reconcile with the legislative mandate that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code Ann. § 153.002 (Vernon 2002).

Texas courts have recognized that regard for the best interest of the child properly may be a factor influencing a trial court’s ruling on procedural issues such as discovery sanctions. See In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (reversing trial court’s exclusion of evidence as discovery sanction under former Rule of Civil Procedure 215(5) in conservatorship case); see also In re C.H., No. 07-04-0428-CV, 2006 WL 3813751, at *2 (Tex. App.—Amarillo Dec. 28, 2006, no pet.) (mem. op.) (affirming, in conservatorship case, trial court’s ruling allowing late-disclosed witness to testify based on best interest of child).

We agree with the Fourteenth Court of Appeals that “the best interest of a child can only be attained when a court’s decision is as well-informed as the circumstances allow.” P.M.B., 2 S.W.3d at 624–25; In re N.R.C., 94 S.W.3d 799, 810 (Tex. App.—Houston [14 Dist.] 2002, pet. denied) (noting, “[T]o silence witnesses whose testimony is probative of the child’s best interest is to do a disservice to the child.”). We also agree with the following reasoning,

A decision on custody, possession, or access can rarely be well-informed without consideration of the evidence and perspectives of both [parties]. Because the exclusion of any important evidence as a discovery sanction can only produce a less-informed decision, contrary to the best interest of the child, we believe that it should be resorted to only where lesser sanctions are either impracticable or have been attempted and proven unsuccessful. P.M.B., 2 S.W.3d at 625.

Here, the jury’s conservatorship decision could not have been well-informed, and thus in the best interest of the children, without the jury first considering Joseph’s evidence. We conclude that the trial court’s sanction imposed in this case was excessive. Accordingly, we hold that the trial court abused its discretion by prohibiting Joseph from presenting non-party witnesses and tangible evidence at trial.

We may reverse only if the trial court’s sanctions probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to this court. See Tex. R. App. P. 44.1(a). Here, the harm caused by Joseph’s inability to present any evidence in defense of the SAPCR suit is patent.

We agree with other courts that precluding a party from calling any fact witnesses and offering any tangible evidence is tantamount to a death penalty sanction. See N.R.C., 94 S.W.3d at 810 (concluding that striking of all of mother’s fact witnesses was death penalty sanction); P.M.B., 2 S.W.3d at 624 (noting that exclusion of evidence is extreme penalty akin to striking of pleadings). By precluding Joseph from presenting any evidence at trial, other than his own testimony, the trial court eviscerated Joseph’s ability to present effectively the merits of his defense. See N.R.C., 94 S.W.3d at 810.

Moreover, though Joseph’s counsel explained to the jury why he was not allowed to call any witnesses or present evidence, the jury likely drew negative inferences from Joseph’s failure to either comply with the trial court’s pretrial order or present evidence. See id. It is reasonable to assume that, without fact or expert witnesses to corroborate his own testimony, Joseph suffered prejudice in the eyes of jury. See id.

For these reasons, we hold that, on the record presented, the sanction imposed in this case probably caused the rendition of an improper judgment, which requires reversal. See Tex. R. App. P. 44.1(a).

We sustain Joseph’s seventh issue.

Taylor v. Taylor (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)
(family law, SAPCR, grandparent custody, exclusion of evidence, sanctions, consideration of best interest)
DECISION ON APPEAL: REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Panel opinion written by Justice Laura Carter Higley
Appellate Cause Number: No. 01-07-00571-CV
Case Style: Joseph Ray Taylor v. Kevin Taylor and Cheryl Taylor
Appeal from 306th District Court of Galveston County

The Perils of Litigating Pro Se (without a lawyer)

Time and again litigants come to grief trying to represent themselves without competent licensed attorney. They have the right to do so under the rules, but self-represented parties are rarely successful, for numerous reasons. In one recent case, a pro se grandparent brought a suit regarding a grandchild that he not only lost, but for which he was punished by having to pay the other party's attorney's fees as a sanction. A warning worth heeding.

FROM THE APPELLATE OPINION:

It appears that Watts' real complaint is that the trial court erred by imposing the attorney's fees as a sanction pursuant to Tex. R. Civ. P. 13 for his frivolous filing of a lawsuit in which he clearly had no standing, in a county where the child had not lived for four years, seeking a form of relief to which he was not entitled.

The trial court heard the parties on this matter. Rule 13 allows imposition of the penalties set out in Rule 215.2(b) on concluding that a pleading or lawsuit is groundless and brought in bad faith, or groundless and brought for the purpose of harassment, or as an experiment. Tex. R. Civ. P. 13. "Groundless" is defined by the rule as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law."

There is no conceivable way in which the genetic testing statute could be utilized by this party for this purpose. The trial court found in its judgment that the action was violative of Rule 13 and that the lawsuit was frivolous because Watts had no standing, and then ordered Watts to pay the appellees' attorney's fees.

Sanctions for filing frivolous pleadings are available under Chapter 10 of the Texas Civil Practice and Remedies Code or under Rule 13 of the Texas Rules of Civil Procedure. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Board of Directors, 198 S.W.3d 300, 319 (Tex. App.--Texarkana 2006, pet. filed). We review a trial court's Rule 13 sanction for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006). Although a trial court's failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion, Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.--Houston
[1st Dist.] 2001, pet. denied), in this case, the reason was apparent from the order.

We also recognize that sanctions should not be used as "a weapon . . . to punish those with whose intellect or philosophic viewpoint the trial court finds fault." Save Our Springs Alliance, 198 S.W.3d at 319; Tarrant County v. Chancey, 942 S.W.2d 151, 154-55 (Tex. App.--Fort Worth 1997, no writ).

A trial court abuses its discretion if it acts "without reference to any guiding rules and principles," such that its ruling is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). When determining if the trial court abused its discretion, we must ensure that the sanctions were appropriate or just. Id. The Texas Supreme Court has articulated a two-part inquiry that we should conduct in making this determination. Id. First, we must ensure the punishment was imposed on the true offender and tailored to remedy any prejudice caused. Id. Second, we must make certain that less severe sanctions would not have been sufficient. Id.

The punishment was imposed on Watts, who intentionally pursued a patently unavailable cause of action for reasons not supportable under the statute. Thus, the true offender was punished. See Onstad v. Wright, 54 S.W.3d 799, 809 (Tex. App.--Texarkana 2001, pet. denied). The prejudice caused was that of having to incur attorney's fees to defend against the frivolous lawsuit. The sanction was tailored to remedy the harm. Watts argues that less severe sanctions would have been sufficient. He does not suggest what those might be, and we find it appropriate to require an individual who files a frivolous lawsuit against a party to pay that party's attorney's fees. The sanction was not as severe as it could have been, and we find no abuse of discretion in imposing this sanction in this particular situation. The contention of error is
overruled.

For the reasons stated above, we find that the trial court correctly dismissed the lawsuit and that the attorney's fees imposed as sanctions are supportable.

In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit for visitation and motion for genetic testing found baseless and frivolous; sanctions imposed)