in the Interest of B.W.S., a Minor Child ( 2022 )

Affirmed and Opinion Filed July 13, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00343-CV
IN THE INTEREST OF B.W.S., A MINOR CHILD
On Appeal from the 470th Judicial District Court
Collin County, Texas
Trial Court Cause No. 470-51685-2010
MEMORANDUM OPINION NUNC PRO TUNC1
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Partida-Kipness
This appeal arises from proceedings in a suit affecting the parent-child
relationship (SAPCR) in which appellee K.B.S. (Father) sought custody
modifications regarding his son, B.W.S. The trial court issued temporary orders on
October 17, 2019, and a final modification order on March 23, 2020. Appellant
N.A.M. (Mother) appeals both orders. She seeks a new trial based on her contention
that the trial court’s allocation of time between the parties at two hearings constituted
an abuse of discretion. We affirm.
1
This memorandum opinion nunc pro tunc corrects an error in the original opinion. The original
memorandum opinion incorrectly stated that the Honorable Justice Leslie Osborne was not a voting member
of the panel.
BACKGROUND
Father and Mother divorced in 2011 and share custody of B.W.S. The divorce
decree named the parties joint managing conservators of B.W.S. and provided Father
with the exclusive right to establish the primary residence of the child. The decree
awarded Mother an expanded standard possession schedule and ordered her to pay
child support. The SAPCR order in effect at the time of the proceedings at issue here
was the trial court’s July 2, 2015, Final Order in Suit to Modify Parent-Child
Relationship.
In June 2019, Father learned of divorce proceedings and a verbal and physical
altercation between Mother and her then husband, S.G.M. Mother and S.G.M. each
filed a motion for protective order against the other following the altercation. One
of S.G.M.’s adult sons, D.M., also informed Father that Mother was using illegal
drugs and drinking excessively at home while B.W.S. was present in the home. In
addition, Father learned from D.M. that Mother obtained a British Passport for
B.W.S. without Father’s knowledge and intended to kidnap B.W.S. and take him to
England if the court proceedings did not go well for her.
The information from S.G.M. and D.M. prompted Father to file a petition to
modify parent-child relationship (the modification motion) in the SAPCR, which
included an emergency motion for ex parte restraining order against Mother and a
request for temporary orders. Father cited his concerns that Mother would physically
harm B.W.S. in her then-current state of agitation, drinking, and drug use. Father
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asked the trial court to, among other orders, deny Mother access to B.W.S. or,
alternatively, permit only supervised visitation. The trial court signed an ex parte
temporary restraining order on June 20, 2019, restraining Mother from all access to
B.W.S. and setting Father’s request for temporary orders in the SAPCR for a
temporary injunction hearing on June 24, 2019 (the temporary orders hearing). The
docket sheet includes a General Docket Entry on June 20, 2019, stating “[b]oth
parties appeared pro se, ex parte granted, set for hearing with other cases, drug
testing ordered”. Before the temporary orders hearing, Father filed a supplemental
request for extraordinary relief on the basis of the potential risk of international
parental abduction of B.W.S. by Mother.
At the start of the temporary orders hearing, the trial judge confirmed that
motions filed in the SAPCR and motions related to the divorce proceeding were set
to be heard that morning. Specifically, the motions set for hearing were the request
for temporary orders in the SAPCR, a motion for temporary orders in the divorce,
the motion for protective order filed by S.G.M. against Mother, and the motion for
protective order filed by Mother against S.G.M. Father appeared pro se at the
temporary orders hearing. Mother and S.G.M. were each represented by counsel at
the hearing in relation to the divorce and their respective motions for protective
order. But Mother appeared pro se regarding Father’s request for temporary orders
in the SAPCR.
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The trial judge asked the parties and counsel if it would “make sense to just
try everything together rather than having different facts repeated several times?”
Father was in favor of proceeding on all four matters. He informed the trial court
that “a lot” of his evidence regarding the request for temporary orders would “be
based largely on the testimony of” S.G.M. and his sons because “they have firsthand
knowledge of the behavior that’s taken place.” Mother, however, complained that
she did not have counsel in the SAPCR. After discussion with counsel and the
parties, the trial court decided Father, S.G.M.’s counsel, and Mother’s counsel would
each have thirty minutes to present their motions, and Mother would have ten
additional minutes to question witnesses concerning Father’s request for temporary
orders in the SAPCR. During the hearing, Mother used her additional ten minutes to
cross-examine one of S.G.M.’s sons, testify pro se regarding the custody issues, and
call and examine three witnesses. Mother ran out of time during her examination of
her third witness.
At the conclusion of the temporary orders hearing, the trial court issued
written letter rulings on all four matters and scheduled the trial on the modification
motion in the SAPCR for November 7, 2019. The trial court’s scheduling order
stated the “time required for trial” would be one hour per side. Mother signed the
first scheduling order as a pro se party.
On September 23, 2019, Father filed his Motion to Enter Temporary Orders
in the SAPCR. Father asked the court to sign and enter temporary orders consistent
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with the court’s June 24, 2019 letter ruling. The court heard that motion on October
17, 2019, and signed temporary orders that day. At the October 17, 2019 hearing,
the trial judge confirmed that trial on the modification motion was scheduled for
November 21, 2019, and each side would be allotted one hour. When the court called
the case for trial on November 21, 2019, the child’s therapist was unavailable. The
court continued the trial to February 10, 2020. Mother’s counsel did not object to the
one-hour time limit at either the October 17, 2019, or November 21, 2019,
proceedings. The scheduling orders issued by the trial court setting trial for
November 21, 2019, and then for February 10, 2020, each stated that the “time
required for trial” would be one hour per side. Mother’s counsel signed each of those
scheduling orders on her behalf.
Father’s modification motion proceeded to trial on February 10, 2020. At that
time, the trial court stated again on the record that the time allotted “for all of these
claims is one hour per side.” Mother’s counsel objected to the time limitation, stating
“I would at this time, on the record, object to the limitation of time as denying my
client the right to due process and equal protection of the law.” The trial judge
overruled the objection.
Mother’s counsel waived opening statements and used her allotted time to
cross-examine Father’s witnesses. Father called Mother as an adverse witness.
Mother’s counsel cross-examined Mother after Father’s direct examination of her
and ran out of time during the cross examination. When the trial court stopped the
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examination, Mother’s counsel again objected to the time limit. The trial court
overruled the objection. Father then conducted a short, nine-question redirect
examination of Mother and then, with thirty seconds remaining of his allotted hour,
gave a short closing argument. Mother’s counsel did not ask to give a closing
argument or object to being unable to give a closing argument due to the time limits.
The trial court rendered a Memorandum of Final Orders on February 10, 2020,
and an Order in Suit to Modify Parent-Child Relationship on March 23, 2020. On
appeal, Mother contends she is entitled to a new trial because the trial court abused
its discretion by imposing time limits on the parties at the temporary orders hearing
and the modification hearing and by denying Mother the ability to cross-examination
S.G.M. at the temporary orders hearing.
STANDARD OF REVIEW
“A trial court has the authority to control the presentation of evidence so as to
avoid needless consumption of time.” In re M.A.S., 233 S.W.3d 915, 924 (Tex.
App.—Dallas 2007, pet. denied). We review a trial court’s imposition of time limits
at trial, and the exclusion of evidence due to the imposition of time limits, using an
abuse-of-discretion standard. See id.; see also Dow Chem. Co. v. Francis, 46 S.W.3d
237, 240–41 (Tex. 2001) (stating “the discretion vested in the trial court over the
conduct of a trial is great” and trial courts “may properly intervene to maintain
control in the courtroom, to expedite the trial, and to prevent what it considers to be
a waste of time”) (internal citations omitted); TEX. R. EVID. 611(a) (“The court
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should exercise reasonable control over the mode and order of examining witnesses
and presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from
harassment or undue embarrassment.”).
ANALYSIS
Mother presents three issue on appeal. Within those issues, however, Mother
makes four distinct arguments, three of which relate to the temporary orders hearing.
Specifically, Mother asserts the trial court abused its discretion by (1)
contemporaneously considering “two separate cases” at the temporary orders
hearing, (2) allocating unequal time limits to the parties during the temporary orders
hearing, (3) denying Mother the opportunity to cross-examine S.G.M. at the
temporary orders hearing, and (4) placing a one-hour time limit per side at the
modification hearing. The only issue properly before this Court is Mother’s
complaint of time limits imposed at the modification hearing. Accordingly, we start
with that issue.
I. Time limits at modification hearing
Mother contends the trial court deprived her of guaranteed constitutional
rights of due process by placing a one-hour time limit on Mother at the modification
hearing. We disagree. Every trial court has the inherent power to control the
disposition of the cases on its docket “with economy of time and effort for itself, for
counsel, and for litigants.” State v. Gaylor Inv. Trust P’ship, 322 S.W.3d 814, 819
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(Tex. App.—Houston [14th Dist.] 2010, no pet.); In re M.A.S., 233 S.W.3d at 924
(“A trial court has the authority to control the presentation of evidence so as to avoid
needless consumption of time.”); TEX. R. EVID. 611(a). That inherent power,
together with applicable rules of procedure and evidence, give trial courts broad, but
not unfettered, discretion in handling trials. Gaylor Inv. Trust P’ship, 322 S.W.3d at
819. “The control given the trial judge must be exercised reasonably, and a party
must be given a fair opportunity to present its case so that the factfinder may
ascertain the truth.” In re Moreno, No. 11-10-00353-CV, 2010 WL 5059519, at *4
(Tex. App.—Eastland Dec. 10, 2010, orig. proceeding) (mem. op.).
Here, the trial court allowed Mother and Father each one hour to present their
cases at the modification hearing. The one-hour limit was noted in the trial court’s
four scheduling orders leading up to the hearing, each of which were signed and
approved by Mother or her counsel. Although Father appeared pro se at the
modification hearing and Mother was represented by counsel, the trial court
nonetheless gave each side the same amount of time to present their case. Mother’s
counsel used Mother’s allotted hour to cross-examine Father’s witnesses, including
Mother. Tellingly, Mother and Father ran out of time at approximately the same
time; during the examination of Mother. When the trial court stopped the cross-
examination of Mother by her counsel because he was “out of time,” Mother’s
counsel objected to the time limit, and the court overruled the objection. Father then
did a quick redirect examination of Mother and used his remaining thirty seconds to
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present a short closing argument. Although Mother’s counsel twice objected to the
time limits, counsel at no time stated that Mother wanted to call additional witnesses
or present an offer of proof. Similarly, Mother did not ask to present a closing
argument.
On this record, we conclude the trial court did not abuse its discretion in
setting time limits at the modification hearing. See TEX. R. EVID. 611(a); see also In
re M.A.S., 233 S.W.3d at 924. Further, the time limits did not violate Mother’s right
to due process. On the contrary, the record shows Mother was provided a fair
opportunity to confront witnesses and present her case. Accordingly, we overrule
Mother’s complaints concerning the time limits imposed at the modification hearing.
II. Remaining issues
Mother’s remaining issues relate to the temporary orders hearing. It is well-
settled that a temporary order is superseded by entry of a final order, rendering moot
any complaint about the temporary order. In re M.L.R., No. 05-15-00647-CV, 2016
WL 5791530, at *2 (Tex. App.—Dallas Oct. 4, 2016, no pet.) (mem. op.) (internal
citations omitted); In re A.C., No. 02-21-00121-CV, 2022 WL 1793419, at *3 (Tex.
App.—Fort Worth June 2, 2022, no pet. h.) (mem. op.) (“complaints about
temporary orders fall by the wayside anyway when a final order has been entered.”);
In re E.R.W., 528 S.W.3d 251, 257 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(“Because the trial court since has rendered a final judgment, Mother’s complaints
about the temporary orders authorizing emergency removal are moot.”); see also In
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re A.K., 487 S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.) (“[A]
temporary order is superseded by entry of a final order of termination, rendering
moot any complaint about the temporary order.”). Complaints concerning a hearing
to obtain temporary orders is similarly mooted by the issuance of a final order. See
In re J.M.L.P., No. 06-15-00043-CV, 2015 WL 7540553, at *2 (Tex. App.—
Texarkana Nov. 25, 2015, pet. denied) (mem. op.) (“The entry of the final order in
this case rendered moot any complaint regarding the trial court holding a temporary
hearing or entering temporary orders.”) (citing cases).
Here, the trial court signed temporary orders on October 17, 2019. The
temporary orders stated they “shall continue in force until further order” of the court.
That order came on March 23, 2020, when the trial court signed the modification
order. Because the trial court has rendered a final judgment, we conclude Mother’s
complaints about the temporary orders hearing and the temporary orders are now
moot and not subject to appeal. See In re A.K., 487 S.W.3d at 684; see also Wright,
749 S.W.2d at 234; Mauldin v. Clements, 428 S.W.3d 247, 261–62 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“Because a final order has been entered in this
case, Marca’s challenges to the temporary orders are moot.”); Coleman v. Tex. State
Dep’t of Pub. Welfare, 562 S.W.2d 554, 556 (Tex. Civ. App.—Tyler 1978, writ ref’d
n.r.e.) (“Upon the entry of the final judgment, the force and effect of a temporary
order ceased.”).
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Further, Mother’s due-process complaints regarding the temporary orders
hearing were cured by the trial court providing due process to Mother at the
modification hearing. See Motheral v. Black, No. 03-21-00671-CV, 2022 WL
1433960, at *10 (Tex. App.—Austin May 6, 2022, pet. filed) (due-process
complaints regarding an initial hearing can be cured if due process is provided at a
subsequent hearing.); see also United Indep. Sch. Dist. v. Gonzalez, 911 S.W.2d 118,
126-27 (Tex. App.—San Antonio 1995, writ denied) (alleged due process violations
during first proceeding cured by subsequent proceeding at which party was provided
opportunity to confront the witnesses and present his version of the facts). We have
determined the trial court did not abuse its discretion by ordering time limits on the
parties at the modification hearing, and Mother was provided an opportunity to
confront the witnesses and present her case. Any alleged due process violations
committed at the temporary orders hearing were, therefore, cured at trial. We
overrule Mother’s issues concerning the temporary orders hearing.
CONCLUSION
We conclude the trial court did not abuse its discretion by imposing time limits
on each side at the modification hearing. We further conclude Mother’s complaints
concerning the temporary orders hearing and temporary orders are moot and not
properly before us on appeal.
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Accordingly, we affirm the trial court’s March 23, 2020 modification order
and dismiss Mother’s remaining issues as moot.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200343F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT NUNC PRO TUNC
IN THE INTEREST OF B.W.S., A On Appeal from the 470th Judicial
MINOR CHILD, District Court, Collin County, Texas
Trial Court Cause No. 470-51685-
No. 05-20-00343-CV V. 2010.
Opinion delivered by Justice Partida-
Kipness. Justices Schenck and
Osborne participating.
In accordance with this Court’s memorandum opinion nunc pro tunc of this
date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee KENNETH BRYAN SHADDOX recover his
costs of this appeal from appellant NAOMI ABRAHAM.
Judgment entered this 13th day of July 2022.
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