Jacqueline C. Du Bois v. Arthur Williams ( 2011 )

Menu:

Opinion issued April 28, 2011



In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00074-CV

———————————

Jacqueline C. Du Bois, Appellant

V.

Arthur Williams, Appellee

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Case No. 2002-21145

MEMORANDUM OPINION

          Dr. Jacqueline C. Du Bois appeals an order modifying her parent-child relationship with her son entered after her ex-husband, Arthur Williams, moved for the modification after their divorce. After settling part of the dispute through mediation, the trial court held a bench trial on the remaining issues. Dr. Du Bois raises seven issues in this appeal, asserting that the trial court violated her equal protection rights, denied her right to a jury trial, granted Mr. Williams too much control over their son’s estate, failed to hold Mr. Williams in contempt, failed to award her sanctions for Mr. Williams’s and his attorney’s actions during discovery, forced her to mediation, and failed to consider the best interest of the child.

          We affirm.

Background

          After Dr. Du Bois and Mr. Williams were divorced in 2002, Mr. Williams filed this suit affecting the parent-child relationship, seeking to modify the terms of possession and access to the couple’s son. The parties also filed various other motions seeking to enforce provisions of the original decree of divorce, including motions for contempt.

          The modification was resolved in part by a mediated settlement agreement. The remaining issues were tried to the trial court. The trial court entered its order modifying the parent-child relationship in December 2009, at which time it also denied the motions to enforce, stating it was not in the best interest of the child “to find either parent in contempt of court at this time.”

Equal Protection

          In her first issue,[1] Dr. Du Bois contends that the trial court’s order that she, a divorced, African American, female Kansas resident, install “surveillance equipment in [her] private home” is an “equal protection violation under both the U.S. Constitution and the Texas constitution.”[2]

          The trial court’s order provides:

          IT IS ORDERED that either parent may provide the child a web cam or SKYPE camera for the child’s laptop computer. If Arthur Williams III provides such device, Jacqueline C. Dubois is Ordered to install or cause it to be installed on the child’s computer located in her home. This Order is designed to allow the child and his father visual communication.

          IT IS ORDERED that either parent may provide the child a web cam or SKYPE camera for the child’s laptop computer. If Jacqueline C. Dubois provides such device, Arthur Williams III is Ordered to install or cause it to be installed on the child’s computer located in his home. This Order is designed to allow the child and his mother visual communication.

          Equal protection provides that “all persons similarly situated should be treated alike.” Sanders v. Palunsky, 36 S.W.3d 222, 224–25 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3253–54 (1985)). There are two elements that a person claiming an equal protection violation must show: (1) the person was treated differently than other similarly-situated persons; and (2) the person was treated differently without a reasonable basis. Id. at 225.

          Dr. Du Bois does not address either of these elements. She does not identify any similarly situated persons or how she was treated differently than those persons. Nor does she address whether there was a reasonable basis for her to be treated differently. Additionally, the portion of the order that she asserts is an equal protection violation applies equally to both her and Mr. Williams; they are not treated differently. We have reviewed the record and found no support for either of the elements of an equal protection claim. Accordingly, we conclude that she has not shown an equal protection violation.[3]

          We overrule Dr. Du Bois’s first issue.

Right to a Jury Trial

          In her second issue, Dr. Du Bois contends that she was denied her right to a jury trial and that she did not waive the right to a jury trial.

          In her brief, Dr. Du Bois specifically asserts that the trial court erred when it “concluded that all issues, including the contempt allegations” should be decided by the trial court and not a jury. Dr. Du Bois attended mediation and signed a “Binding Mediated Settlement Agreement” that covered the entire dispute between the parties except for the motions for sanctions and for contempt. Concerning the contempt allegations, “[t]here is no absolute right to a jury trial in a contempt proceeding.” In re Hammond, 155 S.W.3d 222, 226 (Tex. App.—El Paso 2004, orig. proceeding) (citing Muniz v. Hoffman, 422 U.S. 454, 475–77, 95 S. Ct. 2178, 2190–91 (1975); Ex parte Werblud, 536 S.W.2d 542, 546–47 (Tex. 1976)). Accordingly, we conclude that Dr. Du Bois was not unconstitutionally denied her right to a jury trial.

          We overrule her second issue.

Management of the Child’s Estate

          In her third issue, Dr. Du Bois contends, “To the detriment of the child, the lower court has blindly given Mr. Williams the potential opportunity to benefit from and or loot estates created directly or indirectly by Dr. Du Bois or a member of her family.” The trial court’s order states,

IT IS ORDERED that, at all times, ARTHUR WILLIAMS, III, as a parent possessory conservator, shall have the following rights and duties:

. . . .

10. The right to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.

. . . .

IT IS ORDERED that JACQUELINE C. DUBOIS, as sole managing conservator, shall have the following exclusive rights and duties:

. . . .

9. The duty to manage the estate of the child to the extent the estate has been created . . . by community property or the joint property of the parents.

Dr. Du Bois contends that this language deprives her and her family of “their free will by injecting Mr. Williams as a pseudo executor and or administrator in any Last Will and Testament of not only Dr. Du Bois but also those of any member of her family listing her or her son as beneficiary.” She also asserts that it would not be in the best interest of the child to have Mr. Williams “serve in any fiduciary role on [her or her family’s] behalf.”

          To the extent Dr. Du Bois contends the trial court erred by including this language in the order, we note that she did not call this purported error to the trial court’s attention. Having failed to bring her complaint to the trial court’s attention, she has not preserved this issue for review. See Tex. R. App. P. 33.1(a)(1).

          To the extent Dr. Du Bois contends the language may cause problems in the future,[4] this Court lacks jurisdiction over that complaint. Ripeness is a component of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). To determine ripeness, we consider whether the facts are sufficiently developed “so that an injury has occurred or is likely to occur, rather than being contingent or remote” at the time the suit is filed. Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 139 (Tex. App.—Houston [1 Dist.] 2008, no pet.) (citing Gibson, 22 S.W.3d at 851–52). “A claim is not ripe if it concerns ‘uncertain or contingent future events that may not occur as anticipated or may not occur at all.’” Id. (citing Gibson, 22 S.W.3d at 852). A claim is not ripe when the plaintiff’s injury “depends on contingent or hypothetical facts, or upon events that have not yet come to pass.” Id. (citing Gibson, 22 S.W.3d at 852). Dr. Du Bois does not assert that the language of the order is causing a problem; she asserts that it may cause a problem in the future. Accordingly, we conclude the claim is not ripe and this Court lacks jurisdiction.

          Dr. Du Bois also argues that the “contrasting language [of the two portions of the order] favors Mr. Williams, a male resident of Texas, and indicates different treatment of Dr. Du Bois, a female domiciled in Kansas under very similar circumstances.” To the extent Dr. Du Bois argues this is an equal protection violation, we disagree.[5] As stated above, an equal protection claim requires a showing that a person was treated differently from those similarly situated without a rational basis. Sanders, 36 S.W.3d at 225. Dr. Du Bois does not identify any evidence to support either of these requirements of an equal protection claim. Furthermore, the record conclusively establishes that Dr. Du Bois and Mr. Williams are not similarly situated. Dr. Du Bois is the sole managing conservator of the child; Mr. Williams is a possessory conservator. These different types of conservatorship involve different rights and duties, which the trial court was required to specify in the order. See Tex. Fam. Code Ann. § 153.071 (West 2008) (requiring court to specify the rights and duties of each parent if both parents are appointed conservators of the child).

          We overrule Dr. Du Bois’s third issue.

Denial of Motion for Contempt

          In her fourth issue, Dr. Du Bois asserts that the trial court erred by not holding Mr. Williams in contempt for violating provisions of the trial court’s order concerning possession of their son and child support. Specifically, she asserts that “if Mr. Williams is not held accountable for his infractions; they will continue.”

          Texas Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority . . . .” Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Similarly, appellate issues are waived when the brief fails to contain a clear argument for the contentions made. Izen v. Comm’n for Lawyer Discipline, 322 S.W.3d 308, 322 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

          Within this section of her brief, Dr. Du Bois does not cite any authority concerning the trial court’s power to hold a party in contempt nor does she cite any authority concerning this Court’s standard or scope of review of such an order. Accordingly, we hold that this issue is waived due to inadequate briefing. See Abdelnour, 190 S.W.3d at 241.

          We overrule Dr. Du Bois’s fourth issue.

Denial of Motion for Sanctions

          In her fifth issue, Dr. Du Bois asserts that the trial court erred by failing to award her attorney’s fees and costs related to Mr. Williams’s and his attorney’s discovery abuse.

          “[T]he failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct.” Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). The record does not contain a motion for sanctions or a trial court’s ruling on sanctions. We note that Dr. Du Bois included an order on the motion to compel discovery and for sanctions in the appendix to her brief. We cannot, however, consider items attached to a brief that are not formally included as part of the record on appeal. Sowell v. Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Thus, Dr. Du Bois has presented nothing for review. See Remington Arms Co., 850 S.W.2d at 170; see also Ortegon v. Benavides, No. 04-05-00768-CV, 2008 WL 577175, at *11 (Tex. App.—San Antonio June 13, 2008, no pet.) (holding denial of sanctions waived when record did not show trial court ruled on motion for sanctions) (citing Tex. R. App. P. 33.1(a)(2)).

          We overrule Dr. Du Bois’s fifth issue.

Referral to Mediation

          In her sixth issue, Dr. Du Bois contends that she “should not have been forced into participating in mediation, and under no circumstance should she have had to endure the process three times.” Within this issue, Dr. Du Bois also asserts the choice of a mediator was improper because Mr. Williams’s counsel had a close relationship to the mediator and complains that the mediator did not divulge, upon request, a purported relationship with Mr. Williams’s counsel.

          Within this section of her brief, Dr. Du Bois does not cite a single authority concerning the trial court’s power to appoint a mediator or this Court’s standard of review concerning such a decision. She also does not cite any record excerpts to show that the mediation occurred three times. Nor does she cite any portion of the record showing that she objected to the trial court to mediation generally, to the particular mediator, or to the mediator’s purported lack of disclosure. Accordingly, we hold that this issue is waived due to inadequate briefing. See Abdelnour, 190 S.W.3d at 241.

          We overrule Dr. Du Bois’s sixth issue.

Best Interest of the Child

          In her seventh issue, Dr. Du Bois contends that the trial court did not take into account the best interest of the child in entering the order modifying the parent-child relationship.

          We review a trial court’s decision modifying the parent-child relationship for an abuse of discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.) A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles. Id. The Texas Family Code allows a trial court to modify an order concerning conservatorship “if modification would be in the best interest of the child.” Tex. Fam. Code Ann. § 156.101 (West Supp. 2010). The court’s primary consideration is the best interest of the child when determining the issues of conservatorship. See Tex. Fam. Code Ann. § 153.002 (West 2008). The Texas Supreme Court has provided a non-exhaustive list of factors to consider when determining the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see Zeifman v. Michels, 212 S.W.3d 582, 595 (Tex. App.—Austin 2006, pet. denied) (applying factors in a conservatorship modification case). These factors are: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371–72.

          Dr. Du Bois does not cite or address any of the Holley factors or any record evidence relevant to those factors. Thus, the issue is waived due to inadequate briefing. See Abdelnour, 190 S.W.3d at 241. However, we also note that the modification was resolved by binding mediation. Therefore, the only record before this Court concerns the motions for enforcement and for contempt. Because the trial court entered its order based on the mediated settlement agreement and the record contains no record concerning any of the Holley factors, we cannot conclude that the trial court abused its discretion.[6]

          We overrule Dr. Du Bois’s seventh issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Harvey Brown

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

[1]           In her brief, Dr. Du Bois lists 12 issues in a section entitled “Issues Presented.” However, in the argument section of her brief there are seven headings listing the issues she briefs. We address the issues as set forth in the argument section of her brief. See Tex. R. App. P. 38.1(f), (i) (requiring a brief to contain both a statement of issues presented and “a clear and concise argument for the contentions made”).

[2]           Dr. Du Bois also argues, “Unless probable cause exists and an applicable warrant/affidavit is properly issued, any government sanctioned installation of a web cam or SKYPE camera in the home of Dr. Du Bois is an invasion of privacy.” She, however, cites no authority and makes no attempt to further argue or analyze this point. Therefore, any error based upon an “invasion of privacy” is waived. See Tex. R. App. P. 38.1(i).

[3]           We also note that Dr. Du Bois did not raise an equal protection claim before the trial court. “As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal.” Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (quoting Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993)).

[4]           Nothing in the record shows that Mr. Williams is attempting to exert control over a portion of the child’s estate that was created by Dr. Du Bois or her family. In fact, in his brief, Mr. Williams asserts that the language of the order only applies to an estate created by him or his family members.

[5]           We also note that, like her other equal protection claim, this one was not raised before the trial court. See n.4, supra.

[6]           We also note that several of the complaints Dr. Du Bois makes about the order appear to relate to what could happen in the future, not to any current controversy. For example, as the first argument within this section of her brief, Dr. Du Bois asserts:

The court below would give a known sex offender increments of 30, 40, and 10 days to formulate and carry out a plan to sexually abuse the child. This is definitely not in the best interest of the child. While this section may be standard jargon placed in all such orders, here it should not be glazed over. Mr. Williams married Lisa Chenevert approximately two months before he went to federal prison. She obtained a real estate license[] to replaces the one the State of Texas revoked from Mr. Williams. They have continued much of the same criminal escapades that landed Mr. Williams in jail and together have massed property, automobiles and realty, often through a straw man scheme, in excess of $1,000,000. Divorce is commonplace, and based on the convenience of his current marriage, it is not unfathomable that for the right price Mr. Williams could become involved with and or [sic] marry a known sex offender.

            (Emphasis added, record citations omitted).

            Because Dr. Du Bois complains of hypothetical events that could possibly come to pass in the future, this argument is not ripe. See Harris Cnty. Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 138 (Tex. App.—Houston [1 Dist.] 2008, no pet.) (citing Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000)).