Daniel Caldwell v. Jennifer Garfutt ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00019-CV
Daniel Caldwell, Appellant
v.
Jennifer Garfutt, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 09-3577-FC4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING
MEMORANDUM OPINION
In this appeal from a suit to modify the parent-child relationship, Daniel Caldwell,
acting pro se, appeals from the trial court’s order that removed the parties as joint managing
conservators of their five-year-old child, appointed Jennifer Garfutt sole managing conservator, and
ordered that Caldwell would have only phone access to the child at specified times each month. For
the reasons that follow, we affirm the trial court’s order.
BACKGROUND
The parties were divorced in 2010. See Caldwell v. Goodfellow Caldwell,
No. 03-10-00292-CV, 2012 WL 5476848, at *1 (Tex. App.—Austin Nov. 8, 2012, pet. denied)
(mem. op.). In the final decree of divorce, the trial court appointed the parties joint managing
conservators of their minor child and ordered Caldwell’s possession of the child to be pursuant to
a standard possession order modified by the parties. See id. Caldwell appealed the final decree of
divorce, and this Court affirmed the decree in November of 2012. See id.
In March 2014, this Court also affirmed in part, dismissed in part, and denied
mandamus relief to the extent Caldwell requested such relief as to a subsequent order by the trial
court in which the trial court held Caldwell in contempt for failure to pay child support, health
insurance premiums, and uninsured medical expenses; granted judgment for arrearages; suspended
commitment; and modified the divorce decree. See Caldwell v. Garfutt, No. 03-12-00696-CV,
2014 WL 1018089, at *1 (Tex. App.—Austin Mar. 12, 2014, no pet.) (mem. op.) (affirming in part,
dismissing in part), 2014 WL 1576871, at *1–2 (Tex. App.—Austin Apr. 17, 2014, no pet.)
(supplemental op. on reh’g) (addressing issues to extent that they requested mandamus relief
and denying request). The trial court signed the order that was the subject of that appeal in
October 2012.
This appeal is from Garfutt’s suit to modify the parent-child relationship, which she
filed on June 17, 2013. See Tex. Fam. Code § 156.001 (authorizing court with continuing, exclusive
jurisdiction to modify orders providing for conservatorship, support, possession, or access of child).
In addition to seeking to modify the parent-child relationship, she also sought injunctive relief
against Caldwell. See id. § 156.006 (authorizing temporary orders). The trial court granted a
temporary restraining order against Caldwell and held a hearing on Garfutt’s request for temporary
orders in July 2013. Caldwell and Garfutt both testified at the hearing. Garfutt testified about the
reasons for her concerns as to the child’s safety when the child was in Caldwell’s care and for
initiating the suit. She testified that, beginning in June, the child’s daycare provider had advised her
2
that the child “was displaying signs that weren’t appropriate for his age for development,” such as
“poking [a doll] in the butt and laughing at it and [the child] grabbed another child’s penis.” She
also testified about an incident in which a toy was entirely lodged in the child’s anus while the child
was in Caldwell’s care.
Caldwell admitted to the toy incident—explaining that the toy incident was a “freak”
accident that happened when the child was taking a “bubble bath”—and admitted to many of the
other actions that were concerning to Garfutt.1 Those actions included that Caldwell and the child
stayed in the garage of a house where a registered sex offender was living; that Caldwell had
provided Garfutt with over ten different addresses where he was residing, some of which Garfutt was
unable to verify; that Caldwell had transported the child by bicycle in an unsafe manner; that
Caldwell posted a picture of the child in an advertisement on the Internet, as well as other postings
referencing the child; and that the child and Caldwell slept in the same bed. The exhibits included
1
In his briefing to this Court, Caldwell describes the toy incident as follows:
On Saturday night of 15 June 2013, Daniel reported to Jennifer that [the child] had
sat down suddenly in the bathtub and had the freak accident of lodging one of the
cylinder-like little person toys with a spherical head (measured 1_7/8" tall by 15/16"
round) in his butt, and that she would want to know, but that he pooped it out and
was fine now. On Sunday 16 June, Jennifer insisted that Daniel immediately take
[the child] to the emergency room, to which Daniel responded that she could come
get [the child] if she was that concerned.
After Garfutt picked the child up, she took the child to the emergency room. According to Garfutt,
she contacted Austin Regional Clinic, and the clinic informed her “that [the child] needed to
immediately be taken to Dell Children’s Emergency Center.” The child was examined at the
emergency center and determined not to have injuries from the incident.
3
photographs of Caldwell transporting the child on the bicycle,2 copies of emails between the parties
in which Caldwell provides various addresses, and copies of postings on the Internet, including the
advertisement on the Craigslist “room/share wanted” page.3
Following the hearing, the trial court entered temporary orders. The trial court found
that Caldwell “pose[d] an immediate danger to the physical health and safety of the child”; ordered
that Caldwell be excluded from possession of the child; and enjoined Caldwell from, among other
actions, communicating with the child or Garfutt or coming within 300 yards of either of them. The
trial court also referred the case to the Texas Department of Family and Protective Services because
there was “evidence of abuse and/or neglect.”
The trial court held another hearing in August 2013. At that hearing, the child’s
therapist since June 2013 and an investigator with the Department testified. The child’s therapist
testified that the child told her that Caldwell had thrown the child into the bathtub when Caldwell
was angry and Caldwell came to the child’s school on another occasion and talked to the child
through a fence.4 The investigator testified that the Department had closed its investigation, ruling
2
The photographs show Caldwell riding the bicycle with the child, who was four years old
at the time, strapped to Caldwell’s legs with a belt while facing Caldwell and holding on to
Caldwell’s shoulders to remain upright. Neither is wearing a helmet. Garfutt took the photographs
and reported the incident to the police. Caldwell and the child were riding toward the intersection
of two highways.
3
The advertisement posted on Craigslist is titled “single dad seeking place for visitation
(round rock).”
4
The therapist testified:
Well, [the child] said his poppa came to the school and talked to him through the
fence and told him, “Even though your mommy says no and even though the police
say no, I came to see you.” And then the child whispered and said, “He told me not
4
out the allegations, but that they “still have concerns, and there’s a risk of concern for [the child]”
and that the Department was looking to Garfutt, “being a protective parent.”5 The investigator also
testified about the recommendations in Caldwell’s psychological evaluation and recommended
starting supervised visits between Caldwell and the child, pending compliance with the
recommendations in the psychological evaluation.6 At the conclusion of the hearing, the trial court
granted Caldwell supervised visits with the child through LifeSteps Families in Transition. Caldwell
had a few visits with the child at LifeSteps before LifeSteps declined to continue to host any further
visits based on Caldwell’s conduct.
The final hearing on Garfutt’s suit to modify occurred in October 2013. By that time,
the parties had reached a mediated settlement on child support. The witnesses at the final hearing
included the program director for LifeSteps, Garfutt, and Caldwell. The program director for
LifeSteps testified about Caldwell’s rule violations and the reasons that LifeSteps decided to decline
hosting any further visits between Caldwell and the child. Garfutt testified about her continued
concerns about the child’s safety and asked to be appointed sole managing conservator and to modify
to tell you anything good.”
5
The investigator explained that the Department “typically provides services to families
when children are not safe with either parent. At this point, we believe that [the child] is safe with
Ms. Garfutt in her home, and she’s safe and is protective of [the child] regarding any ongoing
concerns we would have with Mr. Caldwell.”
6
The psychological evaluation reflects that the evaluation occurred on August 14, 2013, and
that Caldwell had been previously diagnosed with Asperger’s Syndrome, major depressive disorder,
and narcissistic tendencies. The identified concerns in the evaluation included Caldwell’s
“experiencing of some grandiosity,” “instability,” “impulsivity,” “sporadic work history and frequent
job changes,” lack of social and interpersonal skills, and lack of transportation. The
recommendations included that Caldwell participate in group, family, and individual therapy, and
that he be monitored and assessed over time “for diagnostic clarity and treatment planning.”
5
Caldwell’s access to the child to phone access at specified times. Caldwell testified about the visits
at LifeSteps and disputed that he had violated any rules. The exhibits included the monitor’s notes
from the supervised visits at LifeSteps. At the time of the final hearing, Caldwell had not complied
with the recommendations in the psychological evaluation and had not had a psychiatric evaluation.
In January 2014, the trial court signed the order granting Garfutt’s suit to modify the
parent-child relationship. In the order, the trial court found that “credible evidence exists that
Daniel James Caldwell has a history of past or present child neglect” and that “the following orders
are in the best interest of the child.” The trial court appointed Garfutt sole managing conservator;
appointed Caldwell possessory conservator; modified Caldwell’s access to the child to phone access
at specified times each month; and permanently enjoined him from, among other actions, coming
within 300 feet of Garfutt’s residence, her place of employment, or the child’s school or day-care
facility.7 The trial court also entered findings of fact and conclusions of law. This appeal followed.
STANDARD OF REVIEW
A trial court may modify conservatorship and possession if the petitioning parent
shows that the circumstances of the child, a conservator, or some other affected party “have
materially and substantially changed” and that modification would be in the best interest of the child.
Tex. Fam. Code § 156.101. When a trial court makes a decision modifying conservatorship,
we review that decision under an abuse-of-discretion standard. See Gillespie v. Gillespie,
7
The order states that Caldwell “shall have phone access to the child on the first, third and
fifth Sundays of each month, beginning at 6:00 p.m.” Garfutt was ordered to make the
child available for the phone calls and “to allow the phone calls to continue for so long as
reasonabl[y] practicable.”
6
644 S.W.2d 449, 451 (Tex. 1982) (giving trial court “wide latitude in determining the best interests
of a minor child”); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied)
(reviewing trial court’s decision to modify conservatorship under abuse of discretion standard). The
trial court, the observer of “the witnesses’ demeanor and personalities,” does not abuse its discretion
if some substantive and probative evidence supports the trial court’s decision. Zeifman, 212 S.W.3d
at 587. Challenges to the sufficiency of the evidence are not independent grounds of error but are
relevant when accessing whether the trial court abused its discretion. Id. We ask first whether the
trial court had sufficient information on which to exercise its discretion and second whether it erred
in applying its discretion. Id. at 588.
ANALYSIS
Caldwell presents14 issues on appeal.8 Caldwell, however, generally fails to support
his issues with substantive arguments or citations to authorities or the record. See Tex. R. App.
P. 38.1(i) (requiring “argument for the contentions made, with appropriate citations to
authorities and to the record”); see, e.g., Davis v. American Express Bank, No. 03-12-00564-CV,
8
Pending before this Court are Caldwell’s “motion to substitute and replace” and “motion
for rehearing seeking to replace or substitute in order to supplement.” In both motions, Caldwell
seeks to substitute his “Amended Brief Seeking Mandamus Relief (or Appellant’s Reply and
Supplemental Brief)” that this Court received in September 2015, in place of his brief that this Court
received on May 7, 2015. Although we read Caldwell’s pro se briefing liberally, we may not give
him any procedural advantage over a party represented by counsel. See Mansfield State Bank
v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211–12 (Tex.
App.—Dallas 2008, no pet.). Caldwell’s brief was initially due in August 2014, but he sought and
was granted extensions of time to file his brief. By order dated April 24, 2015, we dismissed his
pending motions for extension and ordered that his deadline to file his brief was May 7, 2015. We
also advised him that no further extensions would be granted and that we would dismiss the appeal
for want of prosecution if he failed to file a brief by that date. Given this procedural background,
we deny the pending motions to substitute.
7
2014 Tex. App. LEXIS 9662, at *7 (Tex. App.—Austin Aug. 29, 2014, no pet.) (mem. op.) (noting
that “[a]ppellate issues must be supported by argument and authority, and if they are not so
supported, they are waived” and concluding pro se appellant waived issue by failing to support it by
argument and authority); Lee v. Kaufman, No. 03-10-00148-CV, 2011 Tex. App. LEXIS 6969, at
*9–10 (Tex. App.—Austin Aug. 26, 2011, no pet.) (mem. op.) (finding issue waived that was not
supported “with arguments, legal authority, or citations to the record”). “[P]ro se appellants are held
to the same standard as parties represented by counsel to avoid giving unrepresented parties an
advantage over represented parties.” Stewart v. Texas Health & Human Servs. Comm’n,
No. 03-09-00226-CV, 2010 Tex. App. LEXIS 9787, at *2 n.1 (Tex. App.—Austin Dec. 9, 2010, no
pet.) (mem. op.). Holding Caldwell to this standard, we conclude that he has waived his issues by
failing to support them with substantive arguments or appropriate citations to authorities and the
record. See Tex. R. App. P. 38.1(i). Nonetheless, we will attempt to address his issues as best as
we can. See Stewart, 2010 Tex. App. LEXIS 9787, at *2 n.1 (addressing pro se appellant’s
“complaints as best we can”).
Temporary Orders
In his first two issues, Caldwell appears to be challenging the trial court’s temporary
restraining order, contending that the trial court abused its discretion in granting it under Texas
Family Code section 262.102(a). See Tex. Fam. Code § 262.102(a) (authorizing emergency order
to take possession of child in suit brought by governmental entity). He also cites other sections of
chapter 262, arguing that “reasonable efforts” were not made to prevent the removal of the child
from his care and that he should have been advised of his right to an attorney due to indigence. See
8
id. §§ 262.102(d) (requiring notice of right to be represented by attorney), .201 (requiring adversary
hearing), .205 (addressing hearing when child is not in possession of governmental entity). The cited
sections of the Family Code, however, address procedures in suits brought by a governmental entity
and, thus, are not applicable here. See id. § 262.001(a) (authorizing governmental entity to “file a
suit affecting parent-child relationship requesting an order or take possession of a child without a
court order as provided by this chapter”). Further, any complaints about the temporary orders
became moot once the trial court entered its final order. See In re T.D.M.C., No. 12-03-00300-CV,
2005 WL 1000578, at *3 (Tex. App.—Tyler Apr. 29, 2005, no pet.) (mem. op.) (complaints about
temporary orders are moot after final order entered). We overrule Caldwell’s first and second issues.
Section 161.001 of the Family Code
In his third issue, Caldwell contends that the trial court’s finding that he “has a history
or pattern of past or present child neglect” was contrary to section 161.001 of the Family Code. See
Tex. Fam. Code § 161.001 (addressing involuntary termination of parent-child relationship). The
final order, however, does not terminate his parental relationship but appoints him possessory
conservator. Thus, section 161.001 does not apply here. See id. We overrule Caldwell’s third issue.
Section 153.258 of the Family Code
In his fourth issue, Caldwell argues that the trial court abused its discretion by failing
to comply with section 153.258 of the Family Code. See id. § 153.258. Section 153.258 requires
a trial court to “state in the order the specific reasons for the variance from the standard [possession]
order” if requested to do so “by written request made or filed with the court not later than 10 days
9
after the date of the hearing or on oral request made in open court during the hearing.” See id.
Caldwell, however, did not refer the trial court to section 153.258 until more than 10 days after the
final hearing in October 2013. Further, as to his request for findings of fact and conclusions of law
under rule 297 of the Texas Rules of Civil Procedure that he filed on October 21, 2013, the trial
court signed and filed findings of fact and conclusions of law on January 17, 2014. See Tex. R. Civ.
P. 297 (addressing when trial court should file findings of fact and conclusions of law when they are
timely requested); Pursley v. Ussery, 982 S.W.2d 596, 599 (Tex. App.—San Antonio 1998, pet.
denied) (deeming prematurely filed request for findings of fact and conclusions of law filed on date
judgment signed). We overrule Caldwell’s fourth issue.
Texas Rule of Civil Procedure 297
In his fifth issue, Caldwell argues that the trial court failed to “cause a copy of its
findings and conclusions to be mailed to each party in the suit” as required under rule 297 of the
Texas Rules of Civil Procedure. See Tex. R. Civ. P. 297. As stated above, the trial court’s findings
of fact and conclusions of law were signed and filed on January 17, 2014, and the record reflects that
Caldwell was served with a copy of Garfutt’s proposed findings of fact and conclusions of law on
January 14, 2014. Caldwell also does not cite the record or provide any authority that would support
his contention that the trial court did not comply with rule 297 or appellate relief even if the trial
court did not comply. Further, the record does not reflect that Caldwell raised this issue with the trial
court. See Tex. R. App. P. 33.1(a) (generally requiring complaining party to show complaint was
timely and sufficiently raised before trial court and that court ruled on complaint or refused to rule
on complaint). We overrule Caldwell’s fifth issue.
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Challenged Findings of Fact
In his sixth issue, Caldwell challenges the trial court’s best interest findings; its
finding that “good cause exists to award [Garfutt’s attorney] judgment . . . for attorney’s fees,
expenses, and costs”; and its finding that a permanent injunction should be granted. The trial court
found that it was not in the best interest of the child for Caldwell to have possession pursuant to the
standard possession order and that it was in the child’s best interest for Garfutt to be appointed
sole-managing conservator, to have the exclusive right to designate the child’s primary residence,
to have possession of the child at all times, and to have exclusive rights and duties as to the child,
see Tex. Fam. Code § 153.132 (listing rights and duties of parent appointed sole managing
conservator), and for Caldwell to have phone access at specified times.
Based on our review of the record and taking into account applicable presumptions
under the Family Code, we cannot conclude that the trial court abused its discretion in its granted
relief or in making its best interest findings. See Zeifman, 212 S.W.3d at 587; see also Tex. Fam.
Code §§ 153.004(b) (precluding court from appointing joint managing conservators “if credible
evidence is presented of a history or pattern of past or present child neglect, or physical or sexual
abuse by one parent” directed against child), .131(b) (“It is a rebuttable presumption that the
appointment of the parents of a child as joint managing conservators is in the best interest of the
child.”), .134 (listing factors to consider in determining whether appointment of parents as joint
managing conservators is in child’s best interest), .252(2) (“In a suit, there is a rebuttable
presumption that the standard possession order . . . is in the best interest of the child.”), .253
(allowing court to render order that does not follow standard possession order when it is shown that
11
standard possession order “unworkable or inappropriate”); Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976) (listing non-exclusive factors for making best interest determination).
The evidence at the hearing was undisputed that the parents’ relationship had
deteriorated. See Doyle v. Doyle, 955 S.W.2d 478, 480 (Tex. App.—Austin 1997, no pet.)
(reviewing evidence in light of factors in Family Code section 153.134 and concluding that
presumption for joint managing conservatorship rebutted in part based on parents’ deteriorating
ability to cooperate); Martinez v. Molinar, 953 S.W.2d 399, 402–03 (Tex. App.—El Paso 1997, no
writ) (concluding that appointment of one parent as sole managing conservator appropriate based
in part on lack of agreement and cooperation between parents); see also Tex. Fam. Code
§ 153.134(a)(2) (listing ability of parents to “reach shared decisions in the child’s best interest”
among factors to be considered). Additionally, there was evidence to support findings that Caldwell
was unable to safely or appropriately take care of the child, that he was mentally unstable, and that
his past actions had placed the child at risk of harm, see Tex. Fam. Code § 153.004(b) (precluding
appointment of joint managing conservators when “history or pattern of past or present child
neglect”), and that Garfutt was an appropriate and protective parent. The trial court could have
credited this evidence to conclude that the presumption for joint managing conservatorship had been
rebutted and that it was in the best interest of the child for Garfutt to be appointed sole managing
conservator with possession of the child and with the exclusive rights and duties under section
153.132 of the Family Code, including designating the child’s primary residence. See id. §§ 153.132
(including, among rights of parent appointed sole managing conservator, “right to designate the
primary residence of the child”), .134(a)(1), (2) (listing “whether the physical, psychological, or
12
emotional needs and development of the child will benefit from the appointment of joint managing
conservators” and “ability of the parents to give first priority to the welfare of the child” among
factors to be considered).
The trial court also could have credited the evidence that Caldwell had failed to
follow the recommendations in the psychological evaluation, that he had violated terms of the
temporary orders, that the Department had expressed concerns about Caldwell in the past and going
forward, and that LifeSteps had stopped hosting supervised visits based on Caldwell’s conduct, as
well as the parties’ testimony, to conclude that the standard-possession-order presumption had been
rebutted and that modifying Caldwell’s access to phone access was in the best interest of the child.9
See id. § 153.253 (allowing court to render order that does not follow standard possession order
9
At a hearing in January 2014 on Garfutt’s motion to sign the modification order, the trial
court specifically found:
The Court specifically finds that on many occasions this Court stepped in and tried
everything I could possibly do to try and put Mr. Caldwell in a position where he
could have regular visits with his child. Every time this Court attempted to place
some creative idea or some new way to where Mr. Caldwell could step in line and
start exercising visitation, it failed. And not only did it fail, it failed on numerous
occasions spectacularly. There have been instances throughout the course of this
case where this child was placed in what I feel imminent physical danger. There was
photographic evidence of that in this case. There were instances where I had
supervised visitation with groups that I have never had them ever ask me to please
not put them in the position of having them supervise those visits. And yet we had
people here testifying that the visits did not—that the visits did not go—and, quite
frankly, in the eight years that I have been a judge, not one time has that ever
occurred. Except with Mr. Caldwell’s case. There have been numerous times where
I have tried to get Mr. Caldwell to step in line, get counseling, all of which have
failed. It is this Court’s opinion, based on years of exposure to this case, that until
Mr. Caldwell addresses certain issues, that his possession unsupervised of this child
poses a serious and immediate threat to this child’s physical and emotional safety.
13
when it is shown that standard possession order “unworkable or inappropriate”); Holley, 544 S.W.2d
at 371–72 (listing “emotional and physical danger to the child now and in the future,” stability of
home, and “acts or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one” among non-exclusive factors for making best interest
determination); cf. Fish v. Lebrie, No. 03-09-00387-CV, 2010 WL 5019411, at *10–11 (Tex.
App.—Austin Dec. 10, 2010, no pet.) (mem. op.) (concluding that trial court abused discretion in
ordering “complete denial of access” and remanding for trial court “to consider what amount and
kind of access would be appropriate”).
This evidence also supports the trial court’s injunctive relief. See Peck v. Peck,
172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied) (noting Family Code’s failure to speak
to permanent injunctions, but collecting cases in which permanent injunctive relief was granted and
concluding that trial court did not abuse discretion in granting permanent injunctive relief); see also
Tex. Fam. Code § 156.004 (applying Rules of Civil Procedure to suit for modification under chapter
156). Further, this evidence, along with the testimony by Garfutt’s attorney as to fees, expenses, and
costs, supports the award of a money judgment to Garfutt’s attorney. See Tex. Fam. Code
§§ 106.001 (authorizing court to award costs in suit affecting parent-child relationship), .002
(authorizing court to render judgment for reasonable attorney’s fees and expenses to be paid directly
to attorney). We overrule Caldwell’s sixth issue.
Waiver of Jury Trial
In his seventh issue, Caldwell argues that the trial court incorrectly found that a “jury
was waived.” The record reflects, however, that he did not request a jury. See Tex. R. Civ. P. 216
14
(request and fee for jury trial), 217 (oath of inability to deposit jury fee). Since Caldwell did not
request a jury, the trial court correctly found that a jury was waived. We overrule his seventh issue.
Child Support
In his eighth issue, Caldwell argues that the “court’s order ‘finds that the parties have
agreed to the terms of child support set forth below’ . . . despite objection that those terms do not,
in-fact, conform to the agreement of the parties.” He, however, does not explain how the terms set
forth in the order do not conform with the parties’ agreement on child support. Without this
explanation, we have nothing to review and overrule his eighth issue.
Trial Court’s Declarations
In his ninth issue, Caldwell argues that the trial court “repeatedly made findings
contrary to the record, which portray [Caldwell] as a vexatious litigant” and that the trial court
abused its discretion by “stating untrue declarations.” Caldwell then lists statements by the trial
court from different hearings.10 Caldwell, however, has not cited, and we have not found, authority
that would support granting Caldwell appellate relief based on the trial court’s statements on the
record at the various hearings. We overrule Caldwell’s ninth issue.
10
The listed statements concerned the number of hearings in general and set by Caldwell,
the trial court’s attempts to get Caldwell “to step in line, get counseling,” whether the county
prosecutes perjury, and notification to Caldwell of the status of the case.
15
Sections 153.001 and 153.193 of Family Code
In his tenth and eleventh issues, Caldwell argues that the trial court abused its
discretion by violating sections 153.001 and 153.193 of the Family Code. See Tex. Fam. Code
§§ 153.001 (stating that public policy of state to “assure that children will have frequent and
continuing contact with parents who have shown the ability to act in the best interest of the child”
and “encourage parents to share in the rights and duties of raising their child after the parents have
separated or dissolved their marriage”), .193 (“The terms of an order that denies possession of a child
to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a
child may not exceed those that are required to protect the best interest of the child.”). For the
reasons stated above as to Caldwell’s sixth issue in which he challenges the trial court’s best interest
findings, we overrule his tenth and eleventh issues.
Bias and Recusal
In his twelfth and thirteenth issues, Caldwell contends: “At the first hearing, the court
demonstrated prejudicial bias against [him] contrary to its duty to provide fair trial” and that the trial
judge erred by failing to recuse himself. See Tex. R. Civ. P. 18b. To support his arguments,
Caldwell cites various rulings by the trial court concerning Caldwell’s allegations that Garfutt had
committed perjury and that she was not credible. Caldwell, however, failed to comply with the
procedure in rule 18a for the recusal of a trial judge. See Tex. R. Civ. P. 18a (requiring verified
motion to be filed, asserting one or more grounds listed in rule 18b, and not “based solely on the
judge’s ruling in the case”). Thus, Caldwell has not preserved these issues for our review. See
Barron v. State Attorney Gen., 108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.) (noting that
16
procedural requisites for recusal were mandatory and that “party who fails to conform
waives his right to complain of a judge’s failure to recuse himself”). We overrule his twelfth and
thirteenth issues.
2010 Divorce Decree
In his fourteenth issue, Caldwell complains about the trial court’s 2010 final divorce
decree, including the division of parental rights and the marital estate. See Caldwell,
2012 WL 5476848, at *1 (affirming final decree). “[D]ivorce decrees and judgments are not
vulnerable to collateral attack.” Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009). “Errors other
than lack of jurisdiction over the parties or the subject matter render the judgment voidable and may
be corrected only through a direct appeal.” Id. (citing Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.
2003)). This Court affirmed the final decree in a prior appeal and, therefore, Caldwell may not
collaterally attack the decree in this appeal. See id.; Reiss, 118 S.W.3d at 443. On this basis, we
overrule Caldwell’s fourteenth issue.
CONCLUSION
Having overruled Caldwell’s issues, we affirm the trial court’s order.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Bourland
Affirmed
Filed: January 7, 2016
17