Ryan Kelsall v. Rachel Haisten , 564 S.W.3d 157 ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00389-CV
———————————
RYAN KELSALL, Appellant
V.
RACHEL HAISTEN, Appellee
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Case No. 2010-53450
OPINION
In this suit affecting the parent-child relationship (SAPCR), Ryan Kelsall
appeals the trial court’s order awarding statutory attorney’s fees and costs to
Rachel Haisten for defending Kelsall’s frivolously-filed modification petition. In
two issues, Kelsall argues that the trial court no longer had jurisdiction over the
case when it issued the order, and alternatively, that the trial court abused its
discretion in concluding that his modification petition was filed frivolously.
We affirm.
Background
Kelsall and Haisten, parents of R.A.K., were divorced December 16, 2010.
Since that time, Kelsall has sought various forms of relief from the trial court. This
appeal arises out of Kelsall’s second suit to modify conservatorship, brought
closely on the heels of his first.
In his first modification suit, in addition to seeking primary conservatorship
of R.A.K., Kelsall asked the trial court to limit Haisten to supervised visits with
R.A.K. The trial court appointed an amicus attorney for R.A.K., and after a year
and a half of litigation, signed an agreed modification order pursuant to a
settlement reached in mediation. The agreed modification order, signed January 28,
2016, designated Haisten as R.A.K.’s primary managing conservator with the
exclusive right to designate his primary residence, increased Kelsall’s periods of
possession to expanded standard possession, and provided that R.A.K. would
continue counseling with his psychologist, Dr. Camille Shea, and Haisten would
consult with Dr. Shea regarding a name for R.A.K. to call Haisten’s husband other
than “daddy.”
2
Just nine months later, Kelsall filed his second modification petition (which
he has twice amended), this time pro se, again requesting primary conservatorship
of R.A.K. His original petition alleged that:
• Dr. Shea refused to allow Kelsall access to R.A.K.’s medical
records;
• Haisten allowed R.A.K.’s stepfather to take R.A.K. to medical
appointments alone and to make medical decisions for RAK;
• Haisten refused to allow Kelsall to put R.A.K. on his insurance,
in favor of R.A.K.’s stepfather’s insurance;
• Haisen “trie[d] to make the stepfather [R.A.K.’s] ‘real father’
by referring to him as ‘daddy’ in front of [R.A.K.] to force
[R.A.K.] to call him ‘daddy,’” causing R.A.K. “confusion and
anxiety”; and
• Haisten limit[ed] R.A.K.’s access to Facetime with Kelsall’s
“other child who is experiencing severe separation anxiety”
while R.A.K. is with Haisten.
In addition to primary conservatorship and retroactive support, Kelsall
requested that the January 28, 2016 agreed modification order be modified to
remove the provision ordering R.A.K. to continue therapy with Dr. Shea, and to
enjoin Haisten from allowing R.A.K. to call his stepfather or any significant other
“daddy.”
Immediately after filing his petition, and before Haisten had answered it,
Kelsall began issuing discovery requests, including requests for admissions,
amended requests for admissions, and requests for production, and, importantly, a
subpoena duces tecum to Premier Psychological Services seeking production of
documents and communications between Dr. Shea and R.A.K. (or Haisten in
3
connection with R.A.K.’s therapy), and a “subpoena for witness
deposition/subpoena duces tecum” to Haisten.
Haisten answered, denying the allegations in Kelsall’s petition, alleging that
Kelsall’s petition was filed frivolously and was designed to harass her, and
requesting statutory attorney’s fees pursuant to the Texas Family Code.
Less than a week later, Kelsall again amended his modification petition,1 this
time asking for sole conservatorship of R.A.K. For the first time, Kelsall alleged
that Haisten had “abused” R.A.K. Specifically, he alleged that R.A.K. told him that
Haisten had spanked him.
Kelsall also filed several motions to strike Haisten’s answer and issued
supplemental requests for production and inspection, adding a request for Haisten’s
psychiatric records.
In response to Kelsall’s discovery requests, Haisten filed a motion to quash
her deposition and a motion for protective order to prevent Premier Psychological
Services from releasing then 6-year-old R.A.K.’s psychiatric records. Kelsall filed
several motions to strike Haisten’s motion for protective order.
After a hearing, the trial court granted both Haisten’s motion for protective
order (protecting R.A.K.’s records from disclosure to Kelsall or Haisten), and her
1
This was Kelsall’s second amended petition in this second modification suit; he
filed his first amended petition ten days after filing his original petition.
4
motion to quash. Two days later, Kelsall nonsuited “all claims in this case against
the Respondent.” The trial court signed the nonsuit on January 24, 2017.
Haisten then filed a motion to set trial on her request for attorney’s fees, to
which Kelsall responded by filing a motion to dismiss for lack of jurisdiction. On
May 15, 2017, before trial on Haisten’s attorney’s fees claim, the trial court held a
hearing on Kelsall’s motion to dismiss. Rejecting Kelsall’s argument that the
nonsuit was a final order, and thus that its plenary jurisdiction to hear Haisten’s
attorney’s fees claim had expired, the trial court denied the motion to dismiss for
lack of jurisdiction, and the parties proceeded to trial.
At trial, Haisten testified that Kelsall began asking for R.A.K.’s psychiatric
records while Kelsall’s first modification suit was pending, and that immediately
after she and Kelsall settled that suit (and ostensibly the psychiatric records issue),
Kelsall resumed his efforts to get the records both from Haisten and from Dr. Shea.
Unsuccessful, Kelsall filed Health Insurance Portability and Accountability Act of
1996 (HIPAA) complaints against both Premier Psychological Services and Dr.
Shea. He then filed a complaint against Dr. Shea’s license with the Texas Medical
Board, which resulted in her having to discontinue R.A.K.’s therapy pending an
investigation of the claims.
Haisten testified that, other than her request for attorney’s fees in her
answer, she had not filed “anything affirmative” against Kelsall, but had only
5
responded to his filings. She also testified as to Kelsall’s motivation in seeking
another modification: “I think he wanted the records. I think he was upset that he
wouldn’t get his way, so to speak, in the first litigation. And I think this was—he
tried several different ways of getting the records. And, so, when those avenues
failed, he decided that he would bring suit on his own.”
Kelsall also testified. He repeated numerous times throughout his testimony,
both on direct and cross examination, that he filed this second modification suit
because he is entitled to R.A.K.’s psychiatric records, which he believes will show
that Haisten spanked R.A.K. He stated that he became concerned for R.A.K.’s
safety after R.A.K. told him that Haisten had spanked him. He also testified that he
filed suit in part because Haisten permitted R.A.K. to call his stepfather “dad,” and
because Haisten frustrated his efforts to have R.A.K. Facetime with his other child.
On cross-examination, Kelsall answered “yes” when asked, after “all of
these concerns that you claim that you had about your son, like the spanking and
things like that, you non-suited the claim two days after you didn’t get these
medical records, didn’t you, sir?” He explained that the financial burden of
possibly having to hire an attorney going forward caused him to abandon his claim
for sole conservatorship of R.A.K.
In addition to this suit, the record also reflects that on September 15, 2016,
Kelsall filed a pro se petition for enforcement by contempt (which he has since
6
amended three times) seeking repayment from Haisten for his alleged overpayment
of R.A.K.’s health insurance.
After the trial, the court signed an “Order [] Regarding Frivolous Filing and
Attorney’s Fees,” finding that Kelsall’s modification petition was “filed frivolously
and brought in bad faith,” awarding Haisten $11,827.50 in attorney’s fees and
costs, and stating that “all relief requested in this case and not expressly granted is
denied.” See TEX. FAM. CODE ANN. § 156.005 (West Supp. 2017) (“[I]f the court
finds that a suit for modification is filed frivolously or is designed to harass a party,
the court shall state that finding in the order and assess attorney’s fees as costs
against the offending party.”).
Jurisdiction
We first address Kelsall’s argument that the trial court did not have
jurisdiction over Haisten’s claim for attorney’s fees, because “if it did not, then we
do not.” Unifund CCR Partners v. Villa, 299 S.W.3d 92, 95 (Tex. 2009). Kelsall
argues that the trial court’s 30-day period of plenary jurisdiction began when it
signed his nonsuit, and thus had already expired when it awarded attorney’s fees.
We conclude that, regardless of whether the nonsuit purported to be a final
judgment triggering the trial court’s plenary jurisdiction period, the trial court
retained jurisdiction over Haisten’s request for attorney’s fees because it was an
7
affirmative claim for relief that was pending before Kelsall’s nonsuit. See TEX. R.
CIV. P. 162.
A. Standard of Review and Applicable Law
We review a trial court’s subject-matter jurisdiction de novo. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Schroeder v. LND
Mgmt., LLC, 446 S.W.3d 94, 97 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
(“Whether a trial court has subject-matter jurisdiction is a question of law subject
to de novo review.”).
Texas Rule of Civil Procedure 162 provides that a plaintiff may take a
nonsuit at any time before introducing all of his evidence other than rebuttal
evidence. TEX. R. CIV. P. 162. A plaintiff’s nonsuit is effective immediately upon
filing. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862–63 (Tex. 2010). A trial
court’s granting of a nonsuit is a ministerial act. In re Greater Houston
Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding);
Greenberg v. Brookshire, 640 S.W.2d 870, 871 (Tex. 1982). A trial court generally
has no discretion to refuse to sign an order for dismissal once notice of nonsuit has
been filed. In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997); see Joachim, 315 S.W.3d
at 862.
However, rule 162 expressly limits the right to nonsuit an entire cause when
the defendant has a claim for affirmative relief pending. Bennett, 960 S.W.2d at 38;
8
see also TEX. R. CIV. P. 162 (nonsuit “shall not prejudice the right of an adverse
party to be heard on a pending claim for affirmative relief. . . .”). Thus, while a
nonsuit has the effect of terminating a case from the moment the motion is filed, it
does not affect the right of an adverse party to be heard on a
pending claim for affirmative relief. Referente v. City View Courtyard, L.P., 477
S.W.3d 882, 886 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see also Joachim,
315 S.W.3d at 862 (nonsuit renders merits of nonsuited case moot). In other words,
“[p]arties have an absolute right to nonsuit their own claims, but not someone
else’s claims they are trying to avoid.” Texas Mut. Ins. Co. v. Ledbetter, 251
S.W.3d 31, 37 (Tex. 2008) (citation omitted).
B. Analysis
In his first issue, Kelsall argues that the trial court lacked jurisdiction to
render its May 19, 2017 order awarding Haisten attorney’s fees because its plenary
jurisdiction had expired.2 According to Kelsall, the trial court’s 30-day period of
plenary jurisdiction began on January 24, 2017 when it signed the nonsuit, which
he contends was the final judgment in this case. This is incorrect.
2
A trial court retains jurisdiction over a case for 30 days after it signs a final
judgment or order. TEX. R. CIV. P. 329b(d). After the 30 days run, the trial court
loses its plenary power, and lacks jurisdiction to act. Fuentes v. Zaragoza, 534
S.W.3d 658, 662 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
9
A nonsuit by one party to a SAPCR does not extinguish another party’s
unresolved “pending claim[s] for affirmative relief.” See TEX. R. CIV. P. 162; see
also Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (“Although a plaintiff
decides which of its claims to pursue or abandon, that decision does not control the
fate of a non-moving party’s independent claims for affirmative relief.”). Thus, the
trial court does not lose its plenary jurisdiction over a SAPCR because one party
nonsuits its claims if another party has a pending claim for affirmative relief.
Therefore, we must determine whether Haisten’s request for attorney’s fees in her
answer constitutes a claim for affirmative relief, such that it would have survived a
nonsuit.3
A claim for affirmative relief is one “on which the claimant could recover
compensation or relief even if the plaintiff abandons his cause of action.”
Ledbetter, 251 S.W.3d at 38 (quoting Univ. of Tex. Med. Branch at Galveston v.
Est. of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (punctuation
omitted). “Texas courts have held that ‘[a]n affirmative claim, stated in an answer,
for recovery of attorney’s fees for preparation and prosecution of a defense
constitutes a counterclaim,’” and as such, survives a nonsuit. Bacon Tomsons, Ltd.
3
Because neither party raised it, we do not address the question whether Family
Code Chapter 155 provides an alternate basis for the SAPCR court’s jurisdiction
over Haisten’s claims. See TEX. FAM. CODE ANN. §§ 155.001(a), 155.002 (West
2014) (SAPCR court retains continuing, exclusive jurisdiction of the parties and
matters provided by the Family Code).
10
v. Chrisjo Energy, Inc., No. 01-15-00305-CV, 2016 WL 4217254, at *10 (Tex.
App.—Houston [1st Dist.] Aug. 9, 2016, no pet.) (mem. op.) (quoting In re C.A.S.,
128 S.W.3d 681, 686 (Tex. App.—Dallas 2003, no pet.)); see also Villafani, 251
S.W.3d at 469 (“[A] plaintiff’s nonsuit cannot extinguish a defendant’s
counterclaim for costs and attorney’s fees.”); Nolte v. Flournoy, 348 S.W.3d 262,
267 (Tex. App.—Texarkana 2011, pet. denied) (claim for attorney’s fees included
in answer was counterclaim seeking affirmative relief); Dean Foods Co. v.
Anderson, 178 S.W.3d 449, 456 (Tex. App.—Amarillo 2005, pet. denied)
(plaintiff’s non-suit did not deprive trial court of jurisdiction to hear request for
attorney’s fees included in defendant’s answer).
Kelsall acknowledges that an affirmative claim for attorney’s fees can be
found in an answer, but argues that the language in Haisten’s answer fails to
sufficiently plead a claim because, according to Kelsall, it does not reference a
statute that provides for attorney’s fees and does not explain the basis of her
entitlement to relief. See TEX. R. CIV. P. 47 (claim for relief must contain “a short
statement of the cause of action sufficient to give fair notice of the claim
involved”); see also, e.g., Hagberg v. City of Pasadena, 224 S.W.3d 477, 482
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (request for attorney’s fees in
answer gave “fair and adequate notice . . . sufficient for [defendant] to prepare a
defense” and thus survived nonsuit); Grant v. Hope Vill. Apts.,
11
No. 09-09-00527-CV, 2010 WL 4262001, at *3 (Tex. App.—Beaumont Oct. 28,
2010, pet. denied) (mem. op.) (“[W]hile a claim for affirmative relief can
theoretically be found in an answer, a claim for affirmative relief is still required to
contain ‘a short statement of the cause of action sufficient to give fair notice of the
claim involved [.]’” (citing TEX. R. CIV. P. 47)).
Contrary to Kelsall’s assertion, Haisten’s answer does identify Family Code
section 156.005 as the statutory basis for her claim, both directly and by
implication.4 In the paragraph entitled “Frivolous Claim,” Haisten alleged that
Kelsall filed his modification suit frivolously to harass her, and she requested “a
finding to this effect pursuant to §156.004 of the Tex. Fam. Code,” and an award
of attorney’s fees. In the next paragraph, entitled “Attorney’s Fees, Expenses,
Costs and Interest,” as well as in her prayer, Haisten essentially repeated these
4
We assume Haisten intended to reference Family Code section 156.005—instead
of section 156.004, which makes the Texas Rules of Civil Procedure applicable to
modification suits—as her requests track section 156.005’s language exactly. See
TEX. FAM. CODE ANN. § 156.005 (West Supp. 2017) (“[I]f the court finds that a
suit for modification is filed frivolously or is designed to harass a party, the court
shall state that finding in the order and assess attorney’s fees as costs against the
offending party.”); see also, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 896–97 (Tex. 2000) (defendant’s answer gave fair notice that it
sought to invoke punitive-damages cap, even though defendant cited wrong
statute); UL, Inc. v. Pruneda, No. 01-09-00169-CV, 2010 WL 5060638, at *10
(Tex. App.—Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op.) (following
Texas’s “fair notice” standard for pleading, “we give effect to the substance of
[plaintiff]’s original petition regardless of which section of [a statute] [plaintiff]
cited in the pleading.”).
12
allegations and requested attorney’s fees and costs. This gave Kelsall fair and
adequate notice of Haisten’s section 156.005 attorney’s fee claim. See, e.g., Town
of Flower Mound v. Upper Trinity Reg’l Water Dist., 178 S.W.3d 841, 844 (Tex.
App.—Fort Worth 2005, no pet.) (“A request for attorney’s fees made in
accordance with [C]ivil [P]ractice and [R]emedies [C]ode section 37.009 is a claim
for affirmative relief authorizing a party to be heard under the provisions of rule
162.”); see also Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 915–16 (Tex.
2015) (plea in answer and counterclaim for “attorney’s fees . . . pursuant to Section
37.009 of the Texas Civil Practice & Remedies Code,” and general request for
attorney’s fees in prayer constituted affirmative claim for attorney’s fees to support
fee award).
Kelsall next argues that even if Haisten’s request for attorney’s fees and
costs was an affirmative claim, it did not survive the nonsuit because Haisten did
not pay the requisite filing fee for a counterclaim. See C.A.S., 128 S.W.3d at 686.
But payment of a filing fee “is not generally a prerequisite to jurisdiction, nor does
the failure to pay such fee[] deprive the trial court of jurisdiction over a case.”
Nolte, 348 S.W.3d at 268 (quoting J. Allen Family Partners, Ltd. v. Swain, No. 04-
09-00384-CV, 2010 WL 2103228, at *3 (Tex. App.—San Antonio May 26, 2010,
no pet.) (mem. op.)). Therefore, even though a defendant does not have an
unconditional right to be heard on counterclaims absent the payment of a filing fee,
13
a trial court may, in its discretion, consider such counterclaims without payment of
the statutory filing fee. Nolte, 348 S.W.3d at 268; see also In re J.A.H., No.
05-14-01330-CV, 2016 WL 3536676, at *5 (Tex. App.—Dallas June 27, 2016, no
pet.) (mem. op.) (failure to pay counterclaim fee did not deprive trial court of
jurisdiction over claim for attorney’s fees pending at time of nonsuit).
Haisten’s claim for attorney’s fees and costs was an independent claim for
affirmative relief pending at the time of Kelsall’s nonsuit, and as such, was not
extinguished by the nonsuit. See Villafani, 251 S.W.3d at 469; Bacon Tomsons,
2016 WL 4217254, at *10. Thus, the trial court retained jurisdiction to decide it.
See TEX. R. CIV. P. 162; Bacon Tomsons, 2016 WL 4217254, at *11.
Attorney’s Fees for Frivolous Modification Suit
In his second issue, Kelsall argues that the trial court erred in finding that he
filed his amended modification petition frivolously and awarding Haisten
attorney’s fees and costs.5
A. Standard of Review
We review the trial court’s award of attorney’s fees under Family Code
section 156.005 for an abuse of discretion. See Watts v. Oliver, 396 S.W.3d 124,
127 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Under an abuse-of-
discretion-standard, we consider the evidence in the light most favorable to the trial
5
Kelsall does not challenge the amount of attorney’s fees the trial court awarded.
14
court’s decision and indulge every reasonable inference that would support it. City
of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If more than a scintilla of
evidence supports the trial court’s decision, the legal sufficiency challenge fails.
Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). We will
reverse if the trial court acted without reference to any guiding rules or principles.
Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Mangin v. Wendt, 480
S.W.3d 701, 706 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
B. Analysis
Kelsall argues that the trial court erred in concluding that he filed his
modification petition frivolously. See TEX. FAM. CODE ANN. § 156.005 (“[I]f the
court finds that a suit for modification is filed frivolously or is designed to harass a
party, the court shall state that finding in the order and assess attorney’s fees as
costs against the offending party.”).
“A ‘frivolous’ suit is generally understood to mean one that does not have a
reasonable basis in law or fact.” Thielemann v. Blinn Bd. of Trustees, No.
01-14-00595-CV, 2015 WL 1247018, at *2 (Tex. App.—Houston [1st Dist.] Mar.
17, 2015, no pet.) (mem. op.) (citing Gen. Elec. Credit Corp. v. Midland Cent.
Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991)); see generally TEX. R. CIV. P.
13 (authorizing sanctions against party or party’s attorney for filing “groundless”
pleading, defining “groundless” pleading as having “no basis in law or fact”). In
15
determining whether sanctions are appropriate, the trial court must examine the
facts available to the litigant and the circumstances existing when the litigant filed
the pleading. Thielemann, 2015 WL 1247018, at *2; Mobley v. Mobley, 506
S.W.3d 87, 96 (Tex. App.—Texarkana 2016, no pet.); see also McLaurin v.
McLaurin, No. 01-14-00710-CV, 2016 WL 3023020, at *13 (Tex. App.—Houston
[1st Dist.] May 26, 2016, pet. denied) (mem. op.) (“[A] claim is groundless if its
proponent knows that it lacks any factual basis whatsoever when she asserts it.”);
Foust v. Hefner, No. 07-13-00331-CV, 2014 WL 3928781, at *3 (Tex. App.—
Amarillo Aug. 12, 2014, no pet.) (mem. op.) (“[T]he pertinent window is that
revealing what counsel thought, knew, or should have known when he signed the
pleading or motion.”).
Generally, courts presume that pleadings and other papers are filed in good
faith. Unifund, 299 S.W.3d at 97. The party seeking sanctions bears the burden of
overcoming the presumption. Id. Accordingly, we must determine whether the trial
court abused its discretion in concluding that Haisten overcame the presumption
that Kelsall’s suit was filed with good faith concern for R.A.K.’s safety and that
the facts he alleged in his pleadings were based on a reasonable investigation under
the circumstances.
After a review of the record, we hold that the trial court did not abuse its
discretion in concluding that Kelsall filed his modification petition frivolously.
16
First, Kelsall failed to file an affidavit as required by Family Code section 156.102,
stating facts to support his claim that R.A.K.’s safety may be endangered by
continuing to live with Haisten. See, e.g., Stashak v. Stashak, No.
14-02-00700-CV, 2003 WL 21230406, at *2 (Tex. App.—Houston [14th Dist.]
May 29, 2003, no pet.) (mem. op.) (affirming award of attorney’s fees under
section 156.005 as sanctions for failure to file adequate section 156.102 affidavit in
modification suit); In re A.S.M., 172 S.W.3d 710, 717–18 (Tex. App.—Fort Worth
2005, no pet.) (failure to file section 156.102 affidavit with modification petition
supported award of attorney’s fees under Texas Rule of Civil Procedure 13 for
filing suit “groundless and brought in bad faith and for the sole purpose of
harassment”).
Specifically, because Kelsall brought this suit within one year of the trial
court’s January 28, 2016 order giving Haisten the exclusive right to designate
R.A.K.’s primary residence, section 156.102 required him to attach to his petition
an affidavit alleging, with supporting facts, that R.A.K.’s “present environment
may endanger his physical health or significantly impair his emotional
development” (or other matters not applicable here). See TEX. FAM. CODE ANN.
§ 156.102(a), (b) (West 2014). Neither Kelsall’s original petition, nor his first
amended petition, nor even his second amended petition complied with this
requirement. See A.S.M., 172 S.W.3d at 717–18; Stashak, 2003 WL 21230406, at
17
*2. In fact, not only did Kelsall fail to file an affidavit alleging endangerment, but a
review of the pleadings shows that he made no allegation whatsoever that R.A.K.’s
safety was endangered, much less that Haisten had “abused” R.A.K. by spanking
him, until his second amended petition. See Thielemann, 2015 WL 1247018, at *2
(in ordering sanctions, trial court must examine facts available to litigant and
circumstances existing when he filed pleading); Mobley, 506 S.W.3d at 96 (same).
Kelsall’s failure to meet the statutory requirement of attaching an affidavit of
endangerment to his petition is of particular importance here, given the purpose of
section 156.102’s heightened pleading standard, which is to prevent disruption to
the lives of children by subjecting them to meritless modification suits. See In re
A.D., 474 S.W.3d 715, 720 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(purpose of section 156.102’s verified pleading is “to promote stability in
conservatorship of children by discouraging relitigation of custodial issues within a
short period after the custody order”); see also Burkhart v. Burkhart, 960 S.W.2d
321, 323 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (“The philosophical
underpinning of section 156.102 is clear: the Legislature intended to promote
stability in the conservatorship of children of divorced parents.”).
Second, the record reflects that Kelsall engaged in a pattern of harassing
behavior that the trial court could reasonably have determined was intended to
deplete Haisten’s resources and force her to succumb to his demands for access to
18
R.A.K.’s psychiatric records. See Silverman v. Johnson, No. 03-08-00271-CV,
2009 WL 2902716, at *7–8 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem.
op.) (mother’s testimony that father’s modification suit was part of pattern of
behavior intended to “drain [mother’s] resources through endless litigation”
supported section 156.005 attorney’s fees award). Kelsall filed this modification
suit a mere nine months after he had agreed to an order marking the end of a year
and a half spent litigating his first modification suit. It required Haisten, who
sought nothing beyond repayment of the money she spent defending it, to respond
to a barrage of discovery requests—most of which were filed before she had even
answered—and ultimately to file a motion to protect R.A.K.’s psychiatric records
from being disclosed.
Further, the record includes Kelsall’s pro se petition for enforcement by
contempt (also with multiple amendments) as well as Kelsall’s own trial testimony
that he filed HIPAA complaints against Premier Psychological Services and Dr.
Shea, and a complaint to the licensing board against Dr. Shea, for their refusal to
release R.A.K.’s psychiatric records to him. This suggests that his modification
suits are part of a broader pattern of harassment, supporting the trial court’s section
156.005 award. See Silverman, 2009 WL 2902716, at *7–8 (father’s filing of two
grievances against mother’s counsel, two grievances against mental health
professionals involved in litigation, Child Protective Services (CPS) report, and
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declaratory-judgment action against mother “suggest[ed] that [his] motion to
modify was consistent with an overall pattern of harassing behavior directed at
prolonging litigation and draining [mother]’s resources,” supporting section
156.005 attorney’s fees award).
There is also evidence that Kelsall filed this modification suit as a means to
procure R.A.K.’s psychiatric records, rather than for its stated purposed of
obtaining primary (and later, sole) conservatorship of R.A.K. In fact, Kelsall
himself testified at trial that he filed suit to obtain the records. Further, his
dismissal of his suit for sole custody filed two days after the trial court issued an
order protecting R.A.K.’s medical records belies his assertion that his quest for the
records was motivated by genuine concern for R.A.K.’s safety. Thus, the trial court
could reasonably have concluded that Kelsall nonsuited when it became clear that
harassing Haisten would not enable him to access R.A.K.’s psychiatric records.
The conclusion that Kelsall filed this suit as a means of obtaining R.A.K.’s
records rather than out of genuine concern for R.A.K.’s safety is bolstered by the
complete lack of evidence that Haisten endangered R.A.K.’s safety even if she had
in fact spanked him—an allegation that was not proven at trial. Cf. TEX. FAM.
CODE ANN. § 151.001(e)(1) (West 2014) (parent may use corporal punishment for
reasonable discipline of child); Moreno v. Perez, 363 S.W.3d 725, 740 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (“Unless limited by court order, a parent
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has the right, during periods of possession of their child, to exercise ‘reasonable
discipline,’ including the use of corporal punishment.”) (citations omitted); In re
A.S., 261 S.W.3d 76, 88 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (even
“spankings of a child that leave ‘marks’ or visible bruises 24 hours after the
spanking do not constitute sufficient evidence to demonstrate that a parent has
engaged in conduct that endangered a child’s physical or emotional well-being”).
On this record, we cannot conclude that the trial court abused its discretion
in awarding Haisten attorney’s fees pursuant to Family Code section 156.005.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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