in the Interest of K.R. and A.R., Children ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00275-CV
IN THE INTEREST OF K.R. AND
A.R., CHILDREN
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 233-423731-07
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MEMORANDUM OPINION1
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Appellant A.M. (Mother) appeals the trial court’s order that modified her
parental relationships with her children, K.R. and A.R. In eight issues, she
contends that the trial court abused its discretion by striking her pleadings and by
awarding a judgment against her as a sanction for failing to comply with the
court’s order concerning discovery; that the evidence is insufficient to support the
modification order; that she received insufficient notice that evidence would be
1
See Tex. R. App. P. 47.4.
presented at the final hearing that led to the modification order; and that her
husband, who is a medical doctor, should not have been allowed to testify about
matters related to her mental health. We affirm.
Background Facts
In April 2009, Mother, while represented by counsel, sought a divorce from
S.R. (Father). Among other requested relief, she asked to be named with Father
as joint managing conservators of the children and to be named as the
conservator who had the right to establish their domicile. She also asked the trial
court to order Father to pay child support. Mother’s divorce petition recited that
she owned two real properties in Corpus Christi. Father filed a counterpetition for
divorce in which he also sought to be named as the children’s primary managing
conservator.
During the course of the divorce case, Father filed a motion to compel
discovery and for sanctions, contending that Mother had not responded to a
request for disclosure and for production. Based on an agreement by the parties,
the trial court required Mother to respond to the discovery requests.
Mother and Father eventually entered into a settlement agreement that
incorporated a parenting plan. The parenting plan asked the trial court to make
Mother and Father joint managing conservators of the children. It also asked the
court to render an order on many other provisions concerning Mother’s and
Father’s relationships with the children, including designating particular times in
2
which Mother and Father were entitled to possess them and ordering Father to
pay child support.
In May 2009, the trial court entered a final divorce decree. The decree
followed the terms of the settlement agreement; among other provisions, it
named Mother and Father as joint managing conservators of the children and
ordered Father to pay child support. Mother and Father signed the decree, and
counsel for each of them also signed it.
In the spring of 2013, Father filed a petition to modify the parental
relationships with the children. He pled that the children’s and parents’
circumstances had materially and substantially changed since the signing of the
divorce decree. Specifically, he contended that Mother had been involuntarily
committed because of mental health issues and that she was not physically or
mentally able to care for the children. He asked to be appointed as the children’s
sole managing conservator, for the court to order Mother to pay child support,
and for the court to grant Mother only limited and supervised visitation with the
children. To the petition, Father attached an affidavit in which he asserted that
Mother had been sleeping on a porch to avoid being poisoned from gases and
had painted her car “with house paint to obscure political messages.” The trial
court signed an ex parte order temporarily suspending Father’s obligation to pay
child support.
Through counsel, Mother filed an answer to Father’s modification petition.
After she did so, the trial court signed an order in which it named Father as the
3
children’s temporary sole managing conservator and named Mother as their
temporary possessory conservator. In September 2013, the trial court held a
hearing because Mother had resisted Father’s request for her to produce her
mental health records. Mother’s counsel eventually withdrew, stating that she
was unable to communicate with Mother “in a manner consistent with good
attorney-client relations.”
In June 2014, Father filed a motion to compel discovery and for sanctions.
He contended that Mother had refused to appear at a noticed deposition and
asked the trial court to order her to appear at a deposition or to strike her
pleadings and grant a final judgment in his favor. The next month, the trial court
signed an order requiring Mother to appear for a deposition to be held on July 17,
2014. The court also required her to pay expenses and attorney’s fees
associated with the previously scheduled deposition.
Mother did not appear at the rescheduled deposition, so Father filed a
second motion for sanctions. He asked the court to strike Mother’s pleadings, to
grant a final modification judgment, and to prohibit her from conducting any
discovery or presenting any evidence.
The trial court held a hearing on Father’s second motion for sanctions and
granted the motion. The court’s July 29, 2014 order stated that Mother was
“disallowed from any further discovery of any kind” and was “prohibited from
introducing or presenting evidence of any kind.” It also stated, “The pleadings of
[Mother] are stricken, and a Final Judgment of Modification is GRANTED in favor
4
of [Father], together with a judgment for all of his attorney’s fees expended
herein, . . . for which let execution issue.”
A little more than a month later, on September 3, 2014, the trial court held
a hearing on Father’s August 2014 motion to sign a final order in the modification
suit. Mother did not attend. The court received testimony from Father and
granted his petition for modification of Mother’s and Father’s parental
relationships with the children. In its final modification order, the trial court
appointed Father as the children’s sole managing conservator with the right to
designate their primary residence and appointed Mother as a possessory
conservator with a limited right of supervised visitation. The court also ordered
Mother to pay monthly child support and to pay Father’s attorney’s fees. Mother
brought this appeal.
The Trial Court’s Discovery Sanction
In her first two issues, Mother contends that the trial court’s sanction for
her failure to participate in a deposition was unjust and was an abuse of
discretion. When a party abuses the discovery process by resisting discovery
(such as by failing to attend a deposition), a trial court may impose sanctions.
Tex. R. Civ. P. 215.3; see Sheffield Dev. Co. v. Carter & Burgess, Inc., No. 02-
11-00204-CV, 2012 WL 6632500, at *5 (Tex. App.—Fort Worth Dec. 21, 2012,
pet. dism’d) (mem. op.) (“Trial courts have broad discretion to impose discovery
sanctions to secure compliance with discovery rules, to deter other litigants from
similar misconduct, and to punish violators.”). In appropriate cases, these
5
sanctions may include disallowing further discovery by the resisting party,
refusing to allow the resisting party to oppose claims or present evidence, striking
the resisting party’s pleadings, and rendering a default judgment against the
resisting party. Tex. R. Civ. P. 215.2(b)(1), (4)–(5); see also Hernandez v. Mid-
Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.—San Antonio 2005, no pet.) (holding
that a trial court has discretion to impose sanctions when a party fails to obey the
court’s order to comply with proper discovery requests); Darya, Inc. v. Christian,
251 S.W.3d 227, 232 (Tex. App.—Dallas 2008, no pet.) (“When a trial court finds
a party has failed to comply with proper discovery requests, has failed to obey
discovery orders, or has otherwise abused the discovery process, the court is
authorized to impose a sanction that is just under the circumstances.”).
We review a trial court’s imposition of discovery-related sanctions for an
abuse of discretion. Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489 (Tex.
2014) (op. on reh’g). The test for an abuse of discretion is not whether, in the
opinion of the reviewing court, the facts present an appropriate case for the trial
court’s action, but whether the court acted without reference to any guiding rules
and principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). The
trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Id.
We follow a two-part test to determine whether a sanction was just.
Petroleum Sols., Inc., 454 S.W.3d at 489 (citing TransAmerican Nat. Gas Corp.
v. Powell, 811 S.W.2d 913, 917 (Tex. 1991) (orig. proceeding)); see also Tex. R.
Civ. P. 215.2(b) (requiring a sanction for failing to comply with discovery requests
6
to be just). First, a direct relationship must exist between the offensive conduct,
the offender, and the sanction imposed. Petroleum Sols., Inc., 454 S.W.3d at
489. “To meet this requirement, a sanction must be directed against the wrongful
conduct and toward remedying the prejudice suffered by the innocent party.” Id.;
see also Buck v. Estate of Buck, 291 S.W.3d 46, 55–56 (Tex. App.—Corpus
Christi 2009, no pet.) (stating that in determining whether to impose sanctions,
the trial court is not limited to considering only the specific violation for which
sanctions are finally imposed but may also consider everything that has occurred
during the history of the litigation).
“Second, a sanction must not be excessive, which means it should be no
more severe than necessary to satisfy its legitimate purpose. This prong
requires the trial court to consider the availability of lesser sanctions and, ‘in all
but the most exceptional cases, actually test the lesser sanctions.’” Petroleum
Sols., Inc., 454 S.W.3d at 489 (citation omitted); see Newby v. Uhl, No. 02-10-
00466-CV, 2012 WL 3115628, at *2–3 (Tex. App.—Fort Worth Aug. 2, 2012, no
pet.) (mem. op.) (reciting and applying these standards for discovery-related
sanctions); see also Fast Invs., LLC v. Prosper Bank, No. 02-13-00026-CV, 2014
WL 888438, at *3 (Tex. App.—Fort Worth Mar. 6, 2014, no pet.) (mem. op.) (“The
law is well-settled that before imposing sanctions for discovery abuse under rule
215.2(b), the trial court must analyze the available sanctions, consider whether
less stringent sanctions would promote compliance, and narrowly tailor the
sanction imposed to remedy the offensive conduct.”). Case-determinative
7
sanctions—so-called death penalty sanctions—may be imposed only when it is
“fully apparent that no lesser sanctions would promote compliance with the
rules.” Cire, 134 S.W.3d at 841.
Under these standards, we cannot conclude that the trial court abused its
discretion by ordering case-determinative sanctions against Mother. See
Petroleum Sols., Inc., 454 S.W.3d at 489. Father’s counsel first noticed a
deposition for June 20, 2014. The record contains a copy of a June 4, 2014 e-
mail from Mother to Father’s counsel in which she stated that she was
unavailable for the deposition and that she did not have money to travel from
Corpus Christi to Fort Worth for it. Father’s counsel responded to the e-mail
through a June 10 e-mail that informed Mother that the deposition was to occur in
Tarrant County and that gave Mother a list of six dates in late June and early July
for the deposition. The June 10 e-mail stated that if Mother did not select one of
the six alternative dates, the deposition would take place on June 20.
According to a statement made by Father’s counsel and transcribed by a
court reporter on June 20, Mother did not respond to the June 10 e-mail nor
attend the June 20 deposition. Thus, Father filed a motion to compel discovery
and for sanctions.2 He asked the trial court to require Mother to attend a
deposition, to strike her pleadings, and to grant a judgment against her. The trial
court did not impose the greater sanctions requested by Father, but it ordered
2
As stated above, Father also filed a motion to compel discovery against
Mother in 2008 during proceedings related to their divorce.
8
Mother to appear for a deposition on July 17, 2014, to pay $500 to Father, and to
pay $250 to Father’s counsel.
Father’s counsel then gave Mother notice by mail, certified mail, and e-mail
of the deposition to be taken on July 17. The notice sent by Father’s counsel
stated, “Your failure to attend your deposition on July 17, 2014 will result in
request for additional sanctions according to Texas Rules of Court.” Mother did
not appear at the July 17 deposition, so Father filed another motion for sanctions.
He again asked the trial court to strike Mother’s pleadings and to enter a final
judgment on his behalf. He argued, “These severe terminal sanctions are
appropriate because the Court has already used lesser sanctions to secure
compliance . . . .”
The trial court held a hearing on Father’s second motion for sanctions, and
Mother attended the hearing without counsel. Father called Mother to testify.
During her testimony, Mother claimed that personal business and financial
hardships3 had prevented her from traveling to Fort Worth for the deposition and
that she had informed Father’s attorney that she could not be there. She also
repeatedly talked about matters unrelated to the motion for sanctions.4 She
3
Mother implied that if she had paid the cost of gas to travel to Fort Worth
for the deposition, she could not have paid her electric bill.
4
The record from that hearing shows numerous occasions in which the trial
court sustained Father’s objections to the relevance of Mother’s testimony. The
record also shows occasions in which Mother talked over the trial court. During
the hearing, the court assessed two $500 contempt sanctions against Mother for
9
appeared to state that she would not comply with any order to appear at a
deposition; during an exchange in which the trial court was attempting to get her
to stop talking, she said, “I’m not going to subject myself to . . . deposition.”
During Mother’s argument toward the end of the hearing, she said,
I do not have the funds to continue to be abused by this court.
[Father] was fully aware that I didn’t have the funds . . . due to the
continuing and ongoing abuse by this court system, protected by all
liability by the State of Texas laws. So feel free to hold me in
contempt and give me another fine, Judge . . . .
....
. . . I don’t expect [the court] to support anyone other than
[Father], based on the practices that I have endured . . . . [Emphasis
added.]
Under these circumstances, the trial court could have reasonably
determined that its less severe sanctions against Mother had not been effective
in securing her appearance at a deposition and that other sanctions would be
likewise ineffective. Based on Mother’s statements and her contumacious
attitude toward the court at the sanctions hearing, her resistance to producing
written discovery earlier in the litigation, and her own former trial counsel’s
statement that she was unable to effectively communicate with Mother, the trial
her insistence on continuing to talk after the trial court had instructed her not to,
but at the end of the hearing, the court withdrew those sanctions.
10
court could have reasonably found that Mother would not attend a deposition
even absent her asserted financial hardships.5
We note that when the trial court granted Father’s second sanctions
motion, it recited that it had considered the “criteria set out in the
TransAmerica[n] . . . case.”6 See 811 S.W.2d at 917. Mother relies primarily on
TransAmerican to contend that the trial court’s sanctions are erroneous. See id.
But TransAmerican is distinguishable; there, the trial court imposed case-
determinative sanctions based on TransAmerican’s president’s failure to appear
for one deposition. See id. at 915–16. The supreme court held that the
sanctions were unjust and excessive. Id. at 917–18. The supreme court
emphasized that the trial court had not considered imposing a lesser sanction
and that the record suggested that a lesser sanction might have been effective.
Id. at 918. In contrast, the trial court in this case imposed a lesser sanction that
was not effective in securing Mother’s appearance at the deposition, and the
circumstances described above could have reasonably indicated to the court that
5
We note that these asserted hardships did not prevent Mother from
personally appearing at the hearing on Father’s second motion for sanctions,
which occurred only twelve days after July 17 (the date the trial court had
ordered the deposition to occur on).
6
We disagree with Mother’s contention on appeal that the trial court was
required to explain in detail how it had considered and weighed the criteria
recited in TransAmerican. See 811 S.W.2d at 917; see also Davis v. Howard,
436 S.W.2d 225, 229 (Tex. Civ. App.—Austin 1968, no writ) (“In the absence of
any showing to the contrary, we presume that the trial court weighed the
evidence by the proper rule.”).
11
further progressive sanctions would likewise not secure her appearance. See
Aquarium Env’ts, Inc. v. Elgohary, No. 01-12-01169-CV, 2014 WL 1778266, at
*3–5 (Tex. App.—Houston [1st Dist.] May 1, 2014, pets. denied) (mem. op.)
(holding that a trial court did not abuse its discretion by excluding the testimony
of a party’s fact witnesses when those witnesses failed to appear for noticed
depositions, the trial court compelled the witnesses to appear for depositions,
and the witnesses still did not do so); In re Commitment of Malone, 336 S.W.3d
860, 865 (Tex. App.—Beaumont 2011, pet. denied) (concluding that a trial court
did not abuse its discretion by striking a party’s pleadings in light of the party’s
“continued refusals to answer questions in a deposition”).
We cannot conclude that the trial court acted without reference to guiding
rules or principles, and therefore abused its discretion, by granting case-
determinative sanctions against Mother. See Cire, 134 S.W.3d at 838–39; see
also Tex. R. Civ. P. 215.2(b). Thus, we hold that the sanctions were not
erroneous, and we overrule Mother’s first two issues.
The Sufficiency of the Evidence Supporting Modification
In her third, seventh, and eighth issues, Mother contends that the evidence
is legally and factually insufficient to support the trial court’s modification
decision. We review a trial court’s order modifying conservatorship for an abuse
of discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002,
pet. denied) (op. on reh’g); see King v. Lyons, 457 S.W.3d 122, 126 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). Legal and factual sufficiency of the evidence
12
are not independent grounds of error but are relevant factors in determining
whether the trial court abused its discretion. T.D.C., 91 S.W.3d at 872. When
applying the abuse-of-discretion standard to a trial court’s decision to modify its
provisions related to possession and custody of children, we ask first whether the
trial court had sufficient information on which to exercise its discretion, applying a
traditional sufficiency review, and if so, whether it acted reasonably in the
application of its discretion. Blackwell v. Humble, 241 S.W.3d 707, 715 (Tex.
App.—Austin 2007, no pet.). If some evidence of a substantive and probative
character exists to support the trial court’s modification decision, there is no
abuse of discretion. In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011,
pet. denied).
A trial court may modify conservatorship of a child if the modification is in
the child’s best interest and the circumstances of the child or a conservator have
materially and substantially changed since the rendition of the existing order.7
Tex. Fam. Code Ann. § 156.101(a)(1) (West 2014); In re A.E.A., 406 S.W.3d
404, 409 (Tex. App.—Fort Worth 2013, no pet.). A parent’s deteriorating mental
health may qualify as a material and substantial change that supports
modification of conservatorship. See In re J.H.W., No. 14-03-00024-CV, 2004
7
Mother challenges the sufficiency of the evidence to prove a material and
substantial change but does not challenge or discuss the sufficiency of the
evidence to show that modification is in the children’s best interest. Therefore,
we will limit our analysis to the issue of whether the evidence proved a material
and substantial change.
13
WL 1263254, at *2–3 (Tex. App.—Houston [14th Dist.] June 10, 2004, no pet.)
(mem. op.) (holding that a mother’s threat to kill herself and a child, coupled with
the mother’s history of psychological issues, qualified as a material and
substantial change); see also In re O.E.W.-K., No. 02-10-00199-CV, 2011 WL
1225470, at *26 (Tex. App.—Fort Worth Mar. 31, 2011, no pet.) (mem. op.)
(expressing that a parent’s mental instability may contribute to a finding that a
parent could endanger a child); In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort
Worth 1984, no writ) (explaining that a parent’s mental illness is a relevant factor
on issues related to the care and custody of a child).
At the September 2014 hearing (which Mother did not attend), when
Father’s counsel asked him how his relationship with Mother had changed since
the 2009 divorce, he testified,
It had been contentious from the beginning. The one singular thing
that was very evident in her -- change in her demeanor and what I
thought was leading to an unsafe situation was on one -- April of last
year -- I don't recall exactly the date -- she had called me to come
over to help her at her home[,] . . . which was very unusual since she
rarely called me. At that time, I did notice . . . her to be disheveled.
She had some concerns about the safety of the home that she was
living in, stating that there was some -- something that she smelled --
she thought it was gas -- at that time, coming through the floor of the
home.[8] She was working on the attic and the back porch, and there
was some difficulty with the bracing of the stairs that you pull down,
and she asked -- she asked me to assist her in fixing that and I did.
During that conversation, she did make references to being
concerned about Homeland Security and basically implied that she
might be in trouble with Homeland Security and that there were
8
Father testified that he did not smell any “noxiousness in the air” at
Mother’s home.
14
some issues in regards to her potentially being . . . arrested or being
sought. [Emphasis added.]
Father then testified that he had a “lot of concern” for Mother’s state of mind; that
Mother had been admitted to a mental health facility; that she was combative
while there; and that to his knowledge, she had not obtained further treatment for
her mental health problems after her discharge from the facility. Father testified
that Mother had visited with the children only about five times from August 2013
through September 2014, and he attributed Mother’s sporadic visits to her mental
health problems.
Father opined that the deterioration of Mother’s mental health qualified as
a material and substantial change since the 2009 divorce. He testified that the
children were doing “extremely well” under his care and that the children’s best
interest required his appointment as their sole managing conservator.
The trial court admitted Mother’s medical records. The records establish
that Mother was admitted to a mental health facility in April 20139 and was
discharged two weeks later. They also show that prior to her admission, she had
been recklessly “driving her car around El Paso [while] very disheveled,” that she
had been afraid that clones of her family members were trying to kill her, and that
she had believed that Homeland Security was “after her.” The records also
establish other matters illustrating Mother’s mental health problems, including her
9
Father filed his original petition seeking modification of conservatorship
that month.
15
belief that she had passed post-traumatic stress disorder to her son through
breastmilk.
While Mother was at the mental health facility, she was diagnosed with
severe bipolar disorder that included psychotic features. She was poorly
groomed, loud, irritable, paranoid, suspicious, argumentative, defensive,
demanding, and “in complete denial of her mental illness and . . . of [her] need
[for] psychiatric treatment.” She was “especially hesitant to take any
psychotropic medications” because she believed that she did not need them and
that they were “poison.” Upon her discharge, her thinking was clearer, and she
was more pleasant and cooperative. But she had not completely normalized,
was “still a little bit delusional,” and was “somewhat in denial of her mental
illness.”
We conclude that the trial court could have reasonably found that the
evidence proving deterioration of Mother’s mental health after the rendition of the
divorce decree in 2009 and her denial about that deterioration qualified as a
material and substantial change to support modification. See Tex. Fam. Code
Ann. § 156.101(a)(1); A.E.A., 406 S.W.3d at 409. Thus, we hold that the trial
court did not abuse its discretion by modifying the conservatorship of the
children, and we overrule Mother’s third, seventh, and eighth issues. See T.D.C.,
91 S.W.3d at 872.
16
The Admission of Father’s Testimony
In her fifth and sixth issues, Mother contends that the trial court should not
have considered Father’s testimony because Father was an interested party, the
testimony was uncorroborated, and the testimony lacked proper foundation. She
argues that Father, who is a surgeon, should not have been allowed to testify
about psychiatric issues and that his testimony was “purely self-serving.” But
Mother did not obtain a ruling on any objection to Father’s testimony on these
grounds at the July 2014 hearing on his second motion for sanctions, and she did
not object at all to his testimony at the September 2014 hearing because she did
not attend it. Thus, we conclude that Mother failed to preserve the complaints in
her fifth and sixth issues for our review, and we overrule those issues. See Tex.
R. App. P. 33.1(a) (requiring that a complaint be made and ruled on to be
preserved for appellate review); Tex. R. Evid. 103(a); In re A.C., 394 S.W.3d 633,
645 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
In her fourth issue, Mother argues that she did not receive sufficient notice
that “there would be a hearing with additional evidence taken for the final decree
on September 3, 2014.”10 A notice of the September 2014 hearing appears in
the record. The notice states that the hearing concerned Father’s “Motion to
Sign Final Order in Suit to Modify Parent-Child Relationship”; the notice does not
10
We construe Mother’s argument in her fourth issue to be that she did not
receive notice that the September 2014 hearing would be an evidentiary hearing,
not that she did not receive notice of the September 2014 hearing at all.
17
indicate whether the trial court intended to receive evidence at the hearing.
Mother contends that it was reasonable for her to “assume that no further action
would be taken in the proceedings other than signing the proposed order.”
Because Mother did not attend the September 2014 hearing, she failed to
object to the presentation of evidence at the hearing. And Mother did not at any
time thereafter (including through a motion for new trial) complain in the trial court
that the court had erred by considering evidence at the September 2014
hearing.11 Thus, because Mother did not raise the complaint within her fourth
issue in the trial court at any time, we hold that she failed to preserve the
complaint, and we overrule the issue. See Tex. R. App. P. 33.1(a)(1)(A); Phillips
v. Binder, No. 10-05-00250-CV, 2006 WL 949907, at *3 (Tex. App.—Waco
Apr. 12, 2006, no pet.) (mem. op.) (“Phillips did not attend the hearing; thus, no
objection was made to any of the testimony or to the documentary evidence
admitted; so, those complaints are not preserved for our review.”); Chamberlain
v. Alexander, Nos. 09-00-00174CV, 09-00-00175-CV, 2001 WL 788408, at *3
(Tex. App.—Beaumont July 12, 2001, no pet.) (not designated for publication)
(holding that a party waived any error that occurred in a hearing by failing to
appear at it).
11
The trial court’s September 3, 2014 judgment recites that Father
announced ready for trial, that Mother did not appear, and that the trial court
considered the “record and the evidence and argument of counsel” in reaching its
decision. The judgment also states, “The record of testimony was duly reported
by the court reporter . . . .”
18
Conclusion
Having overruled all of Mother’s issues, we affirm the trial court’s
September 3, 2014 “Final Order in Suit to Modify Parent-Child Relationship.”
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ.
DELIVERED: April 7, 2016
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