in the Interest of Zackery Huseman and Madeline Huseman ( 2004 )

NO. 07-03-0007-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 7, 2004
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In re: Z.H. and M.H., Minors
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FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 51,363-A; HONORABLE JOHN T. FORBIS, JUDGE
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Memorandum Opinion
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Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Timothy Huseman (Huseman) appeals pro se from an order in a suit to modify the
parent-child relationship and on a petition in intervention for conservatorship. Four issues
are asserted. Two deal with the trial court’s purported failure to act upon various post-trial
motions. The remainder concern the trial court’s denial of his request for a bench warrant
entitling him to personally appear at trial. Huseman was imprisoned at the time. We affirm
the order of the trial court.
Background
The 64th District Court of Hale County entered an order dated March 10, 1998, in
which it modified the parent-child relationship between Huseman and his two children, Z.H.
and M.H. Through it, he was removed as joint managing conservator, designated
possessory conservator, and his ex-wife, Rudina Faye Huseman (Rudina), designated sole
managing conservator. So too was he ordered not to have possession of or access to the
children at any time.
On January 25, 2002, Huseman, who was representing himself, filed a motion to
modify in which he requested limited access to his children through the mail and access
to information regarding their health, welfare, and education. Rudina (now Rudina
Paetzold) filed an answer and also a motion to transfer the matter to Randall County; the
proceeding was pending at the time in Hale County. The trial court granted the motion to
transfer on April 26, 2002. Thereafter, Rudina’s new husband, Kennith Paetzold (Kennith),
intervened seeking to be appointed a joint managing conservator.
Trial on the motion to modify was convened on December 3, 2002. Several days
before then, however, Huseman had filed his “Second Motion for Bench Warrant”
requesting that he be allowed to attend the proceeding. The trial court denied the request
on November 27, 2003, and the hearing proceeded without him.
Issue One - Attendance at Hearing
In his first and fourth issues, Huseman complains about the denial of his request to
personally attend or otherwise participate in the trial. He believed that this violated his
constitutional rights. We overrule the issue.
We initially address the allegation about being denied opportunity to participate at
trial by means other than personal appearance. According to the record before us,
Huseman merely sought opportunity to personally attend the hearing. He did not request
the chance to participate through alternate means, such as affidavit, deposition, telephone
or the like. Again, he simply wanted to attend in person. Having failed to request the
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chance to participate through alternate means, he cannot now complain on appeal about
being denied such relief. Commerical Credit Equipment Corp. v. West, 677 S.W.2d 669,
673 (Tex. App.—Amarillo 1984, writ ref’d. n.r.e.) This is especially so given that the trial
court’s order did not foreclose pursuit of those substitute measures.
As to the trial court’s denial of the bench warrant, we review that decision under the
standard of abused discretion. Armstrong v. Randle, 881 S.W.2d 53, 56-57 (Tex.
App.—Texarkana 1994, writ denied); see In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003)
(applying the standard of abused discretion). Thus, we must determine whether the
decision comported with controlling guidelines and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106
S. Ct. 2279, 90 L. Ed. 2d 721 (1986). One such principle holds that while a prisoner cannot
be denied access to the courts simply because he is an inmate, an inmate has no absolute
right to appear in person at every proceeding. In re Z.L.T., 124 S.W.3d at 165. Rather, he
has the burden to establish his right to that relief; that is, he must present the trial court with
“factual information” illustrating why his presence is necessary and warranted. Id. at 166.
And, the factual information should address such indicia as 1) the cost and inconvenience
of transportation, 2) the security risk involved, 3) whether the prisoner’s claims are
substantial, 4) whether the matter can be delayed until his release, 5) whether the inmate
will offer admissible, non-cumulative testimony that cannot be effectively presented by
some other manner such as telephone, deposition or the like, 6) whether his presence is
important to judge his credibility and demeanor, 7) whether the trial is to a jury or the court,
and 8) the probability of his ultimate success on the merits. Id. at 165-66. The trial court
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has no independent duty to sua sponte search for information touching upon those
subjects; again, the inmate has the obligation to provide it with the requisite data. Id.
In the case before us, we note that Huseman said nothing of the Z.L.T. factors in his
“Second Motion for Bench Warrant,” that is, the one upon which the trial court acted. Nor
were they mentioned in the request for a bench warrant preceding that denied by the trial
court.
And, while he alluded to them in a request that he tendered to the Hale County
district court before the cause was transferred to Randall County, we do not find the
allusion enough to evince an abuse of discretion on the part of the court, assuming of
course, that the Randall County district court was made aware of the filing.1 This is so
because his argument consisted of little more than unsworn commentary and conclusions.
For instance, while he mentioned that he would “call witnesses and offer admissable [sic]
testimony,” he failed to describe what that testimony would be, why it was probative, and
why it could not be provided through alternate means. Furthermore, when speaking about
the probability of his ultimate success, he said nothing more than 1) “[r]espondent’s
accusations and allegations are so unfounded and Huseman has requested such basic
access to his children that Huseman fully believes he will succed [sic] . . .,” 2) his ex-wife
previously succeeded in having the conservatorship modified because of “an ex parte
hearing held without Huseman’s knowledge,” and 3) his attorney did not appear on
Huseman’s behalf.2 The actual merits of his claim go unaddressed. Nor did he provide the
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Huseman did not refer to the request for a bench warrant filed with the Hale County court or
othe rwise inco rpora te it by refe renc e in an y of the requ ests filed with the R and all Co unty court.
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W e note that the trial cou rt did grant H usem an the right to obtain “information concerning the health,
educ ation, and welfare o f the children . . . .”
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trial court with factual information touching upon his term of imprisonment and whether the
proceeding could have been reasonably delayed until his release; instead he simply says
that “any postponement . . . would serve no purpose other than to drive a wedge between
Huseman and his children.”3 These and the other unsupported conclusions mentioned in
the request filed with the Hale County district court did not satisfy his duty to provide
“factual information” to the Randall County district court. Consequently, we hold that the
trial court did not abuse its discretion in denying Huseman’s second motion for a bench
warrant.
Issues Two and Three - Post Trial Motions
In his second and third issues, Huseman complained of the trial court’s failure to rule
on his post trial motions. We overrule them as well.
After issuance of the court’s order, Huseman filed a motion for rehearing, motion for
clarifying order, and a request for findings of fact and conclusions of law. Because the trial
court did not act upon them, Huseman asserts that it erred, and he was harmed. Yet, the
motions for rehearing and to clarify were nothing more than an attempt to obtain a new trial
and seek a modification of the judgment, respectively. As such, they were overruled by
operation of law within 75 days after the judgment was signed. See TEX . R. CIV . P. 329b(c)
(stating that a motion for new trial or to correct or modify a judgment are overruled by
operation of law if not determined by written order within 75 days after the judgment was
signed). In short, the trial court was not obligated to formally act upon them.
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W e find this comment of interest given that Huseman’s status as a n inm ate in prison effective ly
denied him physical access to his children.
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As for the request for findings of fact and conclusions of law, the record does not
show that Huseman ever filed a notice of past due findings of fact and conclusions of law.
Same was required to perfect his complaint about their absence. Las Vegas Pecan &
Cattle Co., Inc. v. Zavala County 682 S.W.2d 254, 255-56 (Tex. 1984); In re Guthrie, 45
S.W.3d 719, 722 (Tex. App.—Dallas 2001, pet. denied); Curtis v. Commission for Lawyer
Discipline, 20 S.W.3d 227, 232 (Tex. App.Houston [14th Dist.] 2000, no pet.).
Consequently, he waived this aspect of his issue. Id.
Having overruled each issue, we affirm the “order in suit to modify parent-child
relationship and order on petition in intervention for conservatorship.”
Brian Quinn
Justice
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