in the Interest of N.A.A. and K.D.A., Children ( 2015 )

AFFIRMED; Opinion Filed January 14, 2015.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-13-01311-CV
IN THE INTEREST OF N.A.A. AND K.D.A., CHILDREN
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-52696-06
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Father 1 appeals from the trial court’s order granting Mother’s counter-petition to modify
the parent-child relationship. Representing himself without an attorney, Father presents four
issues in which he (1) challenges the order denying his motion to disqualify Judge Benjamin
Smith of the 380th District Court, (2) asserts all orders rendered by Judge Smith after the denial
of his motion to disqualify are void, (3) complains Judge Smith denied him access to the court by
failing to timely set hearings for his motions, and (4) contends Judge Smith denied him due
process by “failing to provide equal protection under the law” and “not enforcing the Texas
Rules of Civil Procedure on both parties and holding [him] to a higher standard.” Mother did not
file a brief on appeal. For the reasons that follow, we affirm the trial court’s order.
1
Rather than identify appellant and appellee by their full names, we refer to them as “Father” and “Mother”
pursuant to section 109.002(d) of the family code. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
BACKGROUND
Father was divorced from Mother in 2007 pursuant to a decree rendered in the 380th
District Court in Collin County, Texas. In 2012, he filed a petition in the same court to modify
the custody and support provisions in the final divorce decree with respect to the two children of
the marriage. Mother filed a counter-petition to modify the parent-child relationship. Father
filed a motion to disqualify Judge Smith of the 380th Judicial District Court complaining of the
court’s scheduling process and asserting he was denied due process because of his difficulty in
obtaining hearing dates for his motions.2 Judge Smith signed an order referring the motion to the
Presiding Judge of the First Administrative Region. The Regional Presiding Judge then assigned
Scott Becker, active district judge of the 219th District Court in Collin County, Texas to hear and
dispose of Father’s motion to disqualify. The assignment order also directed the clerk to post a
copy of the assignment on the notice board so that attorneys and parties may be advised of the
assignment. A hearing was set for 9:00 a.m. on March 6, 2013 in the 219th District Court. 3
Father did not appear at the March 6 hearing and Judge Becker, sitting by assignment, signed an
order denying the motion to disqualify and instructing all further proceedings take place before
Judge Smith in the 380th District Court.
On May 13, 2013, Judge Smith heard and granted Mother’s motion for sanctions, striking
Father’s pleadings with prejudice to refiling. 4 Ultimately, Judge Smith signed a final order in
favor of Mother on her second amended petition to modify. This appeal followed.
2
In his motion, Father asserted he was a crew member for an airline and needed special consideration for
scheduling hearings.
3
Father acknowledges notice of the March 6 hearing in the 219th District Court was sent to him on or about
February 28, 2013.
4
Father filed a motion for continuance on May 10, 2013 and did not appear at the May 13 hearing. The trial
court denied Father’s motion for continuance and other filings at the May 13 hearing.
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ANALYSIS
In his first issue, Father contends the order denying his motion to disqualify is void as a
matter of law because Judge Becker lacked jurisdiction to hear the motion. Relying on
Alexander v. Russell, 699 S.W.2d 209 (Tex. 1985), Father argues that because the 380th District
Court had continuing, exclusive jurisdiction over this cause pursuant to section 155 of the Texas
Family Code, the case could not have been transferred to any other court except by motion and
transfer order. Alexander was an appeal from a judgment terminating parental rights. Id. at 209.
Although the termination proceedings were conducted in the 243rd District Court and the caption
on the termination judgment read “243rd Judicial District Court,” the judgment was signed by
the judge of the 327th District Court simply as “Judge.” Id. The court reasoned the 243rd
retained exclusive jurisdiction over the matter because there was no motion and order
transferring the cause to the 327th District Court. Id. at 210. The court further concluded that
the record did not show that the judgment of termination was signed by a judge acting as judge
of the 243rd District Court. Id. The cause was therefore remanded to the 243rd District Court
for a new trial. Id. at 211.
Father’s reliance on Alexander is misplaced for several reasons. First, the record here is
clear that Judge Becker was only assigned to dispose of the motion to disqualify rather than hear
the case on the merits. Moreover, the order denying the motion retained the cause number of the
380th District Court and indicated Judge Becker was “sitting by assignment” rather than in his
capacity as active judge of the 219th District Court when he signed the order. To the extent that
Father argues the order is void because Judge Becker did not conduct the hearing in the
courtroom of the 380th District Court in accordance with the Regional Presiding Justice’s
assignment, our review of the assignment order does not support Father’s position as there is no
requirement that the hearing physically take place in the 380th District Court. See also TEX.
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GOV’T CODE ANN. § 24.003(b)(6) (West Supp. 2014) (district judge in county having two or
more district courts may “occupy the judge’s own courtroom or the courtroom of another district
court in the county.”).
Father also complains he was not given notice of the assignment in accordance with
section 74.053 of the Court Administration Act. In relevant part, section 74.053 states:
(a) When a judge is assigned to a trial court under this chapter:
***
(2) the presiding judge shall, if it is reasonable and practicable and if time permits,
give notice of the assignment to each attorney representing a party to the case that
is to be heard in whole or in part by the assigned judge.
TEX. GOV’T CODE ANN. § 74.053(a)(2) (West 2013). The Regional Presiding Judge’s order of
assignment required the clerk to post a copy of the assignment on the notice board to advise the
parties and attorneys. There is no indication in the record that the order of assignment was not
posted. Moreover, Father has not argued, or provided any legal authority suggesting, that posted
notice of the assignment was inadequate under section 74.053. See Dishner v. Huitt-Zollars,
Inc., 162 S.W.3d 370, 374 (Tex. App.—Dallas 2005, no pet.). We resolve Father’s first issue
against him. 5
In his second issue, Father contends that because his motion to disqualify was not ruled
upon by a court of competent jurisdiction, the motion is still pending and all subsequent orders
signed by Judge Smith are void. In light of our disposition of Father’s first issue, this complaint
necessarily fails. We therefore resolve Father’s second issue against him.
Father’s third and fourth issues arguably assert that Judge Smith deprived him of certain
constitutional rights. Father’s brief, however, contains no discussion or argument with respect to
5
Under this issue, Father also suggests the notice of the March 6, 2013 hearing was defective “for it failed to
fully state the issue before the 219th District Court.” Because Father has failed to put forth any discussion with
applicable legal authority to support this contention, we consider the complaint waived due to inadequate briefing.
See TEX. R. APP. P. 38.1(i).
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these issues. The rules of appellate procedure require Father to state concisely his complaints
and provide understandable, succinct, and clear argument for why his complaints have merit in
fact and law, and cite and apply law that is applicable to the complaints being made along with
appropriate record references. See TEX. R. APP. P. 38.1 (f), (h), and (i); Bolling v. Farmers
Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). Because
Father has wholly failed to present any argument with respect to his third and fourth issues, he
has waived these complaints for appellate review. See Bolling, 315 S.W.3d at 895.
We affirm the trial court’s order.
/ David Evans/
DAVID EVANS
JUSTICE
131311F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF N.A.A. AND On Appeal from the 380th Judicial District
K.D.A., CHILDREN Court, Collin County, Texas
Trial Court Cause No. 380-52696-06
No. 05-13-01311-CV Opinion delivered by Justice Evans, Justices
Francis and Stoddart participating.
In accordance with this Court’s opinion of this date, the trial court’s order in suit to
modify parent-child relationship is AFFIRMED.
It is ORDERED that appellee Lisa Ann Astalos recover her costs of this appeal, if any,
from appellant Mitchell Kazu Astalos.
Judgment entered this 14th day of January, 2015.
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