Guardianship of Jodi Tyler, an Incapacitated Person , 408 S.W.3d 491 ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-11-00213-CV
IN THE MATTER OF §
Appeal from
THE GUARDIANSHIP §
Probate Court
OF JODI TYLER, §
of Denton County, Texas
AN INCAPACITATED PERSON §
(TC # PR-2010-00559)
OPINION
Garrod Tyler appeals an order finding him unsuitable to serve as the guardian of Jodi
Tyler, an incapacitated person, and appointing Julie Alonzo-Calteaux as guardian. For the
reasons that follow, we affirm.
FACTUAL SUMMARY
On March 25, 2010, Garrod Tyler filed a divorce petition against his wife, Jodi Tyler, in
the 393rd District Court of Denton County (Cause Number 2010-60775-393. The district court
granted Garrod’s motion to appoint a guardian ad litem for Jodi and appointed Camille S.
Milner. Milner filed a petition in the probate court for a court-initiated guardianship pursuant to
Section 683 of the Probate Code. The probate court appointed Derbha Jones as the guardian ad
litem for Jodi and appointed Jean Manion as the probate court investigator. The probate court
later entered an order transferring the divorce action pursuant to Section 608 of the Probate
Code. Jodi’s sister, Julie Alonzo-Calteaux, filed an application to be appointed the permanent
guardian. Garrod subsequently non-suited the divorce and on the same date filed an application
to be appointed Jodi’s permanent guardian. On December 16, 2010, the probate court entered an
order vacating any prior do-not-resuscitate orders pending further order of the court. Following
a three-day bench trial occurring on March 21-23, 2011, the probate court determined that
Garrod was disqualified and unsuitable to be appointed guardian and the court appointed
Alonzo-Calteaux as Jodi’s permanent guardian. The probate court filed written findings of fact
and conclusions of law.
INCOMPLETE REPORTER’S RECORD
Garrod Tyler contends in three issues that the probate court erred by giving certain rights
to Alonzo-Calteaux (Issue One), by vacating all previously executed powers of attorney and do-
not-resuscitate orders (Issue Two), and by finding him unsuitable and disqualified to serve as
guardian (Issue Three). Alonzo-Calteaux responds that Tyler has waived all three issues because
he has not provided a reporter’s record of the three-day trial.
Under Rule 34.6(b) of the Rules of Appellate Procedure, an appellant must request in
writing that the official court reporter prepare the reporter’s record and designate the portions of
the portions of the proceedings to be included. TEX.R.APP.P. 34.6(b). If the appellant requests a
partial reporter’s record, the appellant must include in the request a statement of the points or
issues to be presented on appeal and will then be limited to those points or issues. TEX.R.APP.P.
34.6(c)(1). This gives other parties the opportunity to designate additional exhibits and portions
of the testimony to be included in the reporter’s record. TEX.R.APP.P. 34.6(c)(2). If the
appellant complies with these requirements, the appellate court must presume that the partial
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reporter’s record constitutes the entire record for purposes of reviewing the stated points or
issues. TEX.R.APP.P. 34.6(c)(4).
The probate court’s findings of fact and conclusions of law recite that the case was tried
on March 21, 22, and 23, 2011, and the court heard the evidence and testimony of witnesses in
support of the various applications for appointment of guardian of the person and estate of Jodi.
The record does not include any request by Garrod for the reporter’s record nor does it include
any portion of the reporter’s record from the trial on the merits conducted in March of 2011. We
have been presented only with the reporter’s record from a hearing on May 4, 2011 during which
the probate court announced its ruling. The record also does not include any statement of the
points or issues Garrod intended to raise on appeal as required by Rule 34.6(b). Absent
compliance with Rule 34.6(c)’s requirements, we will not apply Rule 34.6(c)(4)’s presumption,
and will instead presume that the omitted portions of the reporter’s record are relevant and
support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); In
re A.W.P., 200 S.W.3d 242, 244-45 (Tex.App.--Dallas 2006, no pet.). We will now consider the
impact of this presumption on the issues presented on appeal.
Issue One
In Issue One, Garrod contends that the probate court erred by taking away certain rights
from Jodi and giving them to Alonzo-Calteaux because the decision was contrary to findings
made by the physician who examined her. In support of this argument, Garrod directs our
attention to a document titled “Physician’s Certificate of Medical Examination” which was
attached as an exhibit to his amended application for appointment of a permanent guardian. The
probate court conducted a three-day trial on the merits and received evidence and testimony on
the issues, but the reporter’s record of the trial has not been included in the appellate record. We
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are required to presume that the omitted portions of the record are relevant to this issue and
support the trial court’s judgment. See Bennett, 96 S.W.3d at 229; In re A.W.P., 200 S.W.3d at
244-45. Consequently, Issue One is overruled.
Issue Two
In his second issue, Garrod argues that the probate court erred by vacating all previously
executed powers of attorney and do-not-resuscitate orders. These are two separate orders. The
record reflects that the probate court entered an order on December 16, 2010 vacating all existing
do-not-resuscitate orders regarding Jodi. The order was entered without a hearing. An appellate
court is required to examine the entire record to determine whether an error probably caused the
rendition of an improper judgment. TEX.R.APP.P. 44.1; see Christiansen v. Prezelski, 782
S.W.2d 842, 843 (Tex. 1990). Even if we determined that the probate court erred by entering the
December 16, 2010 order, a matter we do not decide, we are unable to find reversible error due
to the absence of the reporter’s record.
The second part of this issue concerns an order entered on April 6, 2011 granting a
motion filed by Jodi’s guardian ad litem to suspend all medical powers of attorney executed by
Jodi. The order also granted injunctive relief requested by the guardian ad litem. The order
recites that the probate court considered the argument of counsel and prior sworn testimony. We
are required to presume that the omitted portions of the reporter’s record are relevant to the order
and support it. Further, as was the case with the other order addressed in this same issue, the
absence of the record prevents us from determining that any error is harmful. For these reasons,
we overrule Issue Two.
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Issue Three
In his third issue, Garrod challenges the trial court’s ruling on the competing applications
to be appointed guardian. An appellate court reviews a probate court’s appointment of a
guardian for an abuse of discretion. In re Guardianship of Alabraba, 341 S.W.3d 577, 579
(Tex.App.--Amarillo 2011, no pet.). We engage in a two-pronged inquiry: (1) Did the trial court
have sufficient information upon which to exercise its discretion, and (2) did the trial court err in
its application of discretion? Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex.App.--El Paso 2002,
no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The
traditional sufficiency inquiry applies to the first question. Hodson, 81 S.W.3d at 367; Lindsey,
965 S.W.2d at 592. Once we have determined whether sufficient evidence exists, we must then
decide whether the trial court made a reasonable decision. Hodson, 81 S.W.3d at 367. In other
words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81
S.W.3d at 367.
In this case, the trial court has entered written findings of fact and conclusions of law in
support of its determination that Garrod is unsuitable and disqualified from serving as the
permanent guardian and that Alonzo-Calteaux is qualified and suitable to serve as the permanent
guardian of the person of Jodi Tyler. Garrod challenges certain aspects of the findings and the
probate court’s ruling. In the absence of a reporter’s record, we presume that sufficient evidence
was introduced to support the findings of fact and the judgment. Nelkin v. Panzer, 833 S.W.2d
267, 268 (Tex.App.--Houston [1st Dist.] 1992, writ dism’d w.o.j.), citing Mays v. Pierce, 154
Tex. 487, 281 S.W.2d 79, 82 (1955). This is the same presumption applied to the judgment
when the reporter’s record is incomplete and the appellant has failed to comply with Rule
34.6(c). The probate court’s findings of fact support its ruling on the applications for
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appointment of a guarding. Accordingly, we find that the probate court did not abuse its
discretion. Issue Three is overruled. Having overruled each issue, we affirm the judgment of the
probate court.
April 17, 2013
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
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