Opinion
No. 12-06-00315-CV
Opinion delivered October 24, 2007.
Appeal from the 402nd Judicial District Court of Wood County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Milam Keith Smith, pro se, appeals from an order on a motion to modify child support, visitation, and access. Smith presents fifteen issues. We affirm.
BACKGROUND
Smith and Deborah Perry Mullen were divorced on March 2, 2001 and are the parents of three minor children, G.L.S., G.B.S, and S.J.S. In the final decree of divorce, Mullen was appointed sole managing conservator and Smith was appointed possessory conservator. Smith was granted access to the children according to the standard possession order, along with telephone visitation one day per week. He was also ordered to pay Mullen fifty percent of the cost of the children's health insurance provided through Mullen's employer and fifty percent of all uninsured medical expenses. Smith was not ordered to pay child support, but he was responsible for all costs of transportation associated with his periods of possession.
On April 13, 2006, Mullen filed a motion to modify alleging that the circumstances of the parties and the children had materially and substantially changed since the final decree of divorce. Mullen requested child support and reimbursement for costs of health insurance and uninsured medical expenses. She also asked that the standard Wednesday night visitation be changed to Thursday and, because Smith was living in a homeless shelter, that weekend visitation be suspended until he procured permanent housing. Smith filed a response and counterclaim, asking that the trial court deny Mullen's request for child support and reimbursement for costs of medical insurance and uninsured medical expenses. In addition, he requested child support from Mullen contending that his inability to secure a permanent residence was caused by Mullen's relocation and child support would enable him to exercise his visitation rights. Both parties were pro se.
The trial court administrator sent both parties a notice of hearing, informing them that a hearing on Mullen's motion was set for July 6, 2006. At the conclusion of the hearing, the trial court modified Smith's child support, found that Smith had an earning capacity of at least $5.15 per hour, and ordered him to pay child support in the amount of $240.00 per month beginning July 15, 2006. The trial court modified Smith's visitation with the children, changing the Wednesday visitation to Thursday, and limiting all other visitation to between the hours of 9:00 a.m. and 6:00 p.m. as long as Smith resided in a homeless shelter. Further, the trial court found that Smith was in arrears for the children's health insurance and uninsured medical expenses in the amount of $5,057.87, and ordered him to reduce that arrearage at the rate of $100.00 per month beginning July 15, 2006. The trial court administrator sent both parties a notice of hearing, informing them that a hearing on entry of the order was set for August 11, 2006. After that hearing, the trial court signed the order on the motion to modify. On August 24, 2006, Smith requested the trial court file findings of fact and conclusions of law. However, the trial court did not do so. This appeal followed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his fourteenth issue, Smith requests that we hold the trial court's failure to file findings of facts and conclusions of law was "a hostile act." We interpret this request as a contention that the trial court's failure to file findings and conclusions was error. Smith requested findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure. Rule 297 provides, in part, that if the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file a notice of past due findings of fact and conclusions of law. TEX. R. CIV. P. 297. Smith did not file the notice required by Rule 297.
We have liberally construed Smith's brief in order to give effect to his arguments, see TEX. R. APP. P. 38.9, and have determined that he has raised fifteen issues.
The failure to file a notice of past due findings of fact and conclusions of law waives the right to complain about the trial court's failure to file findings of fact and conclusions of law. Gaxiola v. Garcia , 169 S.W.3d 426, 429 (Tex.App.-El Paso 2005, no pet.). Because Smith did not file the notice required by Rule 297, he has waived his complaint regarding the trial court's failure to file findings of fact and conclusions of law. See TEX. R. CIV. P. 297; Gaxiola , 169 S.W.3d at 429. We overrule Smith's fourteenth issue.
FAILURE TO PROVIDE FINANCIAL INFORMATION
In his first issue, Smith argues that the trial court erred in allowing the hearing on Mullen's motion to modify to move forward because she failed to provide the financial documents required by section 154.063 of the Texas Family Code. Section 154.063 of the Texas Family Code requires a party to furnish information sufficient to accurately identify that party's net resources and ability to pay child support and to produce copies of income tax returns for the past two years, a financial statement, and current pay stubs. TEX. FAM. CODE ANN. § 154.063 (Vernon 2002). As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). At trial, Smith did not object to Mullen's failure to produce these documents. Thus, Smith has waived this complaint. We overrule Smith's first issue.
This issue relates to Smith's counterclaim for child support from Mullen.
NOTICE OF HEARING
In his second issue, Smith argues that the trial court erred in allowing the hearing on Mullen's motion to modify to move forward because the notice of hearing was given by the trial court, not Mullen. He contends that according to rules 21 and 21a of the Texas Rules of Civil Procedure, the burden of service is on the parties, not the trial court, and that proof of service is required. Because the court administrator gave notice of the hearing, Smith argues that the trial court acted as a party to the suit, is in breach of trust, and may have violated judicial ethics. He also contends that the notice of hearing for entry of the order on the motion to modify was given by the trial court, not Mullen.
Rule 21 of the Texas Rules of Civil Procedure states that an application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing unless otherwise provided by the rules of procedure or shortened by the court. TEX. R. CIV. P. 21. However, the court may set contested cases for final hearing on its own motion. TEX. R. CIV. P. 245. Because the hearing on Mullen's motion to modify was a final hearing, Rule 245 applies. Thus, the trial court was authorized to send the notice of hearing on Mullen's motion. See id.
Smith also complains that the trial court administrator, and not Mullen, sent a notice of hearing for entry of the order on Mullen's motion to modify. Smith did not object to the notice. See TEX. R. APP. P. 33.1(a)(1)(A). Thus, Smith has waived his complaint regarding the notice of hearing for entry of the order. We overrule Smith's second issue.
EXCLUSION OF EVIDENCE
In his third issue, Smith argues that the trial court erred by improperly excluding a document from the State of Washington concerning a child protective services case. In his fourth issue, Smith argues that the trial court improperly excluded a copy of the record of the hearing in the parties' divorce that was the basis for the court's final decree of divorce.
Applicable Law
We review a trial court's evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. Error may be predicated on a ruling that excludes a party's evidence only if the substance of the evidence was made known to the trial court by offer of proof. TEX. R. EVID. 103(a)(2); Smith v. Smith , 143 S.W.3d 206, 211 (Tex.App.-Waco 2004, no pet.); Jones v. Lurie , 32 S.W.3d 737, 745 (Tex.App.-Houston [14th Dist.] 2000, no pet.). An offer of proof is sufficient if it apprised the court of the substance of the testimony and may be presented in the form of a concise statement. Smith , 143 S.W.3d at 211. Excluded evidence also may be preserved for appellate review by a posttrial bill of exception. Id. When the substance of the evidence is apparent from the record, a formal offer of proof may not be necessary. TEX. R. EVID. 103(a)(2); Smith , 143 S.W.3d at 211. When a trial court excludes evidence, a failure to make an offer of proof waives any complaint about the exclusion on appeal. Jones , 32 S.W.3d at 745.
Analysis
At trial, while cross examining Mullen's current spouse, Larry, Smith attempted to introduce into evidence a letter dated June 7, 2005 from the State of Washington concerning a child protective services case filed in 2005. Mullen objected, stating that the letter was irrelevant to child support or visitation and access. Smith responded, stating that Mullen had asked Larry Mullen questions regarding child protective services. The trial court sustained the objection. Smith did not apprise the trial court of the substance of the letter, nor is the substance of the letter apparent from the record. See TEX. R. EVID. 103(a)(2); Smith , 143 S.W.3d at 211. Because Smith failed to make an offer of proof, he has waived this issue. Accordingly, we overrule Smith's third issue.
During Smith's testimony, he attempted to introduce a copy of the record of the court's ruling in the parties' divorce. Mullen objected, stating that the document was irrelevant. The trial court examined the document and sustained the objection, stating that the decree of divorce had been entered and that "whatever the judge said at the time" meant nothing. The substance of the document is not apparent from the record. See TEX. R. EVID. 103(a)(2); Smith , 143 S.W.3d at 211. Because Smith failed to make an offer of proof, he has waived this issue. Smith attached a copy of the prior record to his brief. However, we cannot consider documents attached to an appellate brief that do not appear in the record. Till v. Thomas , 10 S.W.3d 730, 733 (Tex.App.-Houston [1st Dist.] 1999, no pet.). We must determine a case on the record as filed, and may not consider documents attached as exhibits to briefs. Id. Accordingly, we overrule Smith's fourth issue.
MODIFICATION OF CHILD SUPPORT
In his fifth, sixth, and thirteenth issues, Smith argues that the trial court erred in assessing child support that prohibited him from exercising possession, that rendered him unable to secure adequate housing for himself or his children, and that did not consider the best interests of the children. Further, Smith contends that Mullen failed to show that the circumstances of the children or persons affected by the final decree of divorce have materially and substantially changed.
Standard of Review
A court's order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990); In re L.R.P. , 98 S.W.3d 312, 313 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). The test for abuse of discretion is whether the trial court acted without reference to any governing rules or principles. Worford , 801 S.W.2d at 109; In re L.R.P. , 98 S.W.3d at 313. In other words, the issue is whether the trial court's actions were arbitrary or unreasonable. Worford , 801 S.W.2d at 109; In re L.R.P. , 98 S.W.3d at 313.
Under the abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds, but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P. , 98 S.W.3d at 313; Farish v. Farish , 921 S.W.2d 538, 542 (Tex.App.-Beaumont 1996, no writ). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom , 965 S.W.2d 575, 578 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); In re S.B.C. , 952 S.W.2d 15, 17-18 (Tex.App.-San Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom , 965 S.W.2d at 578; In re S.B.C. , 952 S.W.2d at 18.
Applicable Law
A trial court may order either or both parents to support their children. TEX. FAM. CODE § 154.001 (Vernon Supp. 2006). Each parent has the duty to support his or her minor children. Hourigan v. Hourigan , 635 S.W.2d 556, 558 (Tex.Civ.App.-El Paso 1981, no writ). A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition. TEX. FAM. CODE § 156.401(a)(1) (Vernon Supp. 2006). Further, a child support order may be modified if it has been three years since the order was rendered or last modified and the monthly amount of the child support award differs by either twenty percent or $100 from the amount that would be awarded in accordance with child support guidelines. Id. § 156.401(a)(2).
In determining whether the circumstances of the child or a person affected by the order have materially and substantially changed, evidence regarding the parents' or child's financial circumstances and needs at the time of divorce and the time of modification should be considered by the trial court. Farish , 921 S.W.2d at 541; In re Striegler , 915 S.W.2d 629, 635 (Tex.App.-Amarillo 1996, writ denied). A parent who is qualified to obtain gainful employment cannot avoid his or her support obligations by voluntarily remaining unemployed. In re Striegler , 915 S.W.2d at 638. If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment, the court may apply the support guidelines to the earning potential of the obligor. See TEX. FAM. CODE ANN. § 154.066 (Vernon 2002). The amount of a child support order established by the child support guidelines is presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the best interest of the child. TEX. FAM. CODE ANN. § 154.122 (a) (Vernon 2002).
Analysis
At trial, Smith acknowledged that he had never been ordered to pay child support. He was living at the Salvation Army Center in Tyler, Texas and was unemployed. Smith stated that he received a thirty percent disability from the Veteran's Administration ("VA") because of a service related knee injury in 1977. According to Smith, he previously had five operations on his knees, including a left knee replacement. He received approximately $404.00 a month in disability benefits, which included an amount for his three children. He also received a living stipend of approximately $760.00 a month under the VA's vocational rehabilitation program. In total, his monthly income was approximately $1,170.00. In order to receive the full amount of benefits from the VA, he had to be enrolled in school full time according to the VA's vocational rehabilitation program requirements. Smith stated that he was a full time college student, taking three to four classes a semester. The VA paid his tuition. He stated that he intended to obtain a degree and teaching certificate, and that the VA's vocational program allowed him forty-eight months to complete his degree. Smith also stated that he received a settlement from the VA in 2005, but did not know the amount he received.
Smith paid between $210.00 and $260.00 a month for rent to the Salvation Army. After paying rent, he had approximately $900.00 a month in disposable income. In order to obtain an apartment for himself and the children, he would need approximately $500.00 to $600.00, plus a deposit. He stated that he did not have the money to look for a residence until September 2006. Smith said he was unable to pay child support because he was trying to go to college and he could not work while attending college full time. According to Smith, "any payment at this time [was] beyond [his] ability to pay because [he could] not save up money to get a place" to live. Smith stated that he had limited time for part time employment because he was required to maintain a certain grade point average. He also stated that if he got a job, he would have to give up the opportunity to obtain a degree and be a teacher. He admitted that his disability from the VA did not prevent him from working and that he could "do something." However, Smith stated that he could work only for a time before his condition would worsen. He stated that he could not pass a physical examination for employment and that both knees were unstable. He testified that the pain was virtually gone, but he suffered discomfort depending on the amount of time he spent standing, lifting, or walking.
Mullen requested that the trial court base Smith's child support on his VA benefit plus the amount of a forty hour work week at minimum wage. The trial court modified Smith's child support, found that Smith had the capacity to earn at least $5.15 per hour, and ordered him to pay child support in the amount of $240.00 per month.
We must first determine whether there has been a material and substantial change in the circumstances of the children or persons affected by the final decree of divorce. See TEX. FAM. CODE § 156.401(a)(1). The date of the final decree of divorce was March 2, 2001, more than three years before Mullen filed the motion to modify in April 2006. Further, Smith was not ordered to pay any child support at that time. Because more than three years had passed since the final decree of divorce and the monthly amount of child support differed by either twenty percent or $100 from the amount that would be awarded in accordance with child support guidelines, we conclude that there was a material and substantial change in the circumstances of the children or persons affected by the final decree of divorce. See id. § 156.401(a)(1), (2).
Although Smith complains about being ordered to pay child support, he has a duty to support his minor children. See Hourigan , 635 S.W.2d at 558. Smith admitted that he had approximately $900.00 in disposable income after paying rent and that he "could" find employment even if he could not work to his full ability. Smith stated that he could not work, attend college full time, and save for an apartment. However, if he is qualified to obtain gainful employment, Smith cannot avoid his support obligations by voluntarily remaining unemployed. See In re Striegler , 915 S.W.2d at 638. Although Smith disputed that he could work, the trial court, as fact finder in a bench trial, is the sole judge of the credibility of the witnesses. Sw. Bell Media, Inc. v. Lyles , 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied). As fact finder, the court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. The trial court could have disbelieved Smith's testimony, and believed that he could obtain some employment, even while attending college. Because Smith testified that he could obtain employment and had $900.00 in disposable income even while not working, there was sufficient evidence to support the judgment and the trial court did not abuse its discretion in ordering child support. See Nordstom , 965 S.W.2d at 578; In re S.B.C , 952 S.W.2d at 18.
Smith also argues that the trial court did not consider the best interests of the child. Under the Texas Family Code, the net monthly income of an employed person earning the federal minimum wage of $5.15 per hour is $805.53. See TEX. FAM. CODE ANN. § 154.061 (Vernon Supp. 2006). According to the child support guidelines, the amount of child support for three children should be thirty percent of Smith's net monthly resources or, based on the federal minimum wage of $5.15 per hour, $240.00 per month. See id. § 154.125 (Vernon 2002). Thus, Smith's child support was within the Texas Family Law guidelines and, therefore, presumed to be in the best interest of the children. See id. § 154.122 (a). Moreover, the trial court found that its order was in the best interest of the children. Although Smith had the burden to overcome the statutory presumption, he did not demonstrate how the child support order was not in the best interest of the children. Because Smith did not rebut the presumption that the order was in the children's best interest, we conclude that the trial court did not abuse its discretion in ordering child support within the Texas Family Law guidelines, and that this order was in the children's best interest. Accordingly, we overrule Smith's fifth, sixth, and thirteenth issues.
MEDICAL AND INSURANCE ARREARAGES
In his seventh issue, Smith argues that the trial court erred in assessing arrearages for uninsured medical expenses and health insurance payments. He contends that Mullen failed to furnish proof that she provided him with uninsured medical expenses within ten days and failed to provide him with an insurance policy.
We review a trial court's confirmation of arrrearages for uninsured medical expenses and health insurance payments under an abuse of discretion standard. Beck v. Walker , 154 S.W.3d 895, 901 (Tex.App.-Dallas 2005, no pet.). At trial, Smith testified that he had not received a copy of the children's insurance policy and had not been notified within ten days of any uninsured medical expenses. The trial court admitted a letter dated June 24, 2002 into evidence in which Mullen asked Smith "for medical insurance and unpaid medical arrearages." Smith conceded that he received a similar letter. Mullen testified that she did not send him receipts of uninsured medical expenses within ten days because she did not have his address for many years and he was homeless. However, she stated that she frequently hand delivered the receipts. Further, she stated that she gave him insurance cards during a hearing in 2000. The trial court found that Smith was in arrears on health insurance payments and reimbursement of uninsured medical costs in the amount of $5,057.87. He was ordered to reduce the arrearage in the amount of $100.00 per month beginning July 15, 2006.
Smith asserts here that he always provided notice of his address and refers to an exhibit attached to his brief, but the reporter's record of the hearings does not include the exhibits that were admitted into evidence. We cannot consider documents attached to an appellate brief that do not appear in the record. Till , 10 S.W.3d at 733. Smith also disputes that he received proper notice of uninsured medical expenses or the insurance cards. In a bench trial, however, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Sw. Bell Media, Inc. , 825 S.W.2d at 493. The trial court could have believed Mullen's testimony that she hand delivered most of her receipts of uninsured medical expenses and insurance cards, and disbelieved Smith's testimony to the contrary. Because there was some evidence that Mullen gave Smith copies of uninsured medical expenses and insurance cards, the trial court did not abuse its discretion in assessing arrearages. See Nordstom , 965 S.W.2d at 578; In re S.B.C , 952 S.W.2d at 18.
Additionally, Smith argues that new evidence shows Mullen does not currently notify him of uninsured medical costs within ten days and refers to an exhibit attached to his brief. He also argues that new evidence shows Mullen misrepresented the amount of arrearages for health insurance payments. The jurisdiction of this court is, except where otherwise specially provided, appellate only. TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 2004); see also Thorp Springs Christian College v. Dabney , 37 S.W.2d 193, 196 (Tex.Civ.App.-Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail , 435 S.W.2d 624, 625-26 (Tex.Civ.App.-Tyler 1968, no writ); see also Walker v. Koger , 131 S.W.2d 1074, 1075 (Tex.Civ.App.-Eastland 1939, writ dism'd) (stating that the subject matter of an assignment of error is some ruling or action of the court). Here, Smith complains of Mullen's failure to comply with the trial court's final order, not a decision of the trial court. Because we can review only decisions of a lower court, we do not address these arguments.
Finally, Smith contends that the trial court refused to let him question Mullen regarding a 2003 hearing in the State of Washington during which she requested medical arrearages. We cannot locate in the reporter's record Smith's request to question Mullen about this hearing or the trial court's refusal to allow it. Moreover, Smith does not cite the portion of the record where the trial court refused to let him question Mullen regarding the 2003 hearing. Therefore, Smith has presented nothing for our review.
We overrule Smith's seventh issue.
WITHHOLDING FROM EARNINGS
In his eighth issue, Smith argues that the trial court erred in giving undue authority to the Attorney General of Texas to attach his earnings and order contempt that violated his rights of due process and equal treatment under the Fourteenth Amendment to the United States Constitution. Smith further argues that the child support ordered by the trial court immediately placed him in noncompliance and contempt and, therefore, an attorney should have been appointed for him by the trial court.
Applicable Law
Section 158.001 of the Texas Family Code states that in a proceeding in which periodic payments of child support are ordered, modified, or enforced, the court shall order that income be withheld from the disposable earnings of the obligor. TEX. FAM. CODE ANN. § 158.001 (Vernon 2002). However, section 158.002 of the Texas Family Code states that a court may provide, for good cause shown or on agreement of the parties, that the order withholding income need not be issued or delivered to an employer until (1) the obligor has been in arrears for an amount due for more than thirty days; (2) the amount of the arrearages is an amount equal to or greater than the amount due for a one month period; or (3) any other violation of the child support order has occurred. Id. § 158.002 (Vernon 2002). Moreover, section 158.104 states that a request for issuance of an order of withholding may be filed with the clerk of the court by the prosecuting attorney, the Title IV-D agency (the Attorney General), the friend of the court, a domestic relations office, the obligor, the obligee, or an attorney representing the obligee or obligor. Id. §§ 158.104, 231.001 (Vernon 2002).
Analysis
The trial court's order on the motion to modify provides that if Smith was delinquent or violated the child support order, Smith's employer would "be ordered to withhold from earnings for child support from [Smith's] disposable earnings." All child support payments would then be made pursuant to that order. The trial court stated that it had signed an employer's order to withhold earnings for child support. On request by the prosecuting attorney, the attorney general, Mullen, or Smith, a certified copy of that order would be delivered to Smith's employer. The trial court had no discretion in ordering withholding of Smith's earnings. See id. § 158.001 ("The court . . . shall order that income be withheld. . . .") (emphasis added). Further, the order to withhold earnings would not take effect until Smith was delinquent or violated the child support order, and the order on the motion to modify correctly identified those parties or agencies who were allowed to request an issuance of an order of withholding. See id. §§ 158.002, 158.104, 231.001. Thus, the trial court did not err in ordering withholding of Smith's earnings if he became delinquent or violated the child support order.
We cannot find any language in the order on the motion to modify stating that Smith would be in contempt or "immediate" contempt from this order without due process of law. Further, the clerk's record does not contain the employer's order to withhold earnings. Thus, we cannot determine whether the order contained an order of contempt without due process. The burden is on the complaining party to present a sufficient record to the appellate court to show error requiring reversal. Aguero v. Aguero , 225 S.W.3d 236, 238 (Tex.App.-El Paso 2006, no pet.). Because Smith has not presented a record sufficient to show that the trial court ordered contempt without due process in its employer's order to withhold earnings, he has waived this complaint. Accordingly, we overrule Smith's eighth issue.
CONSTITUTIONAL ISSUES
In his ninth issue, Smith asserts that the trial court erred in following Texas Family Code guidelines that violated his rights of due process and equal treatment under the Fourteenth Amendment to the United States Constitution. He also contends that the trial court erred in following Texas Family Code guidelines that violated "prior Supreme Court Rulings," specifically sections 154.062 and 151.181 of the Texas Family Code. Other than parenthetical citations to two sections of the family code, Smith cites no case authority and provides no analysis as to how the trial court erred in following the family code guidelines. Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that a brief must 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(h). Failure to cite applicable authority or provide substantive analysis waives an issue on appeal. Huey v. Huey , 200 S.W.3d 851, 854 (Tex.App.-Dallas 2006, no pet.). Because Smith does not cite to authorities and offers no analysis, he has waived his complaint regarding the trial court's following the cited Texas Family Code guidelines. Accordingly, we overrule Smith's ninth issue.
In his tenth issue, Smith argues that the trial court erred in conducting the hearing with a lack of impartiality, as an indifferent juror, or in a manner favorable to one party, and/or acted as a client for one party or the state, or acted in a manner that violated his rights under Articles 1 and 3a of the Texas Constitution. More specifically, Smith contends that he was served a notice of hearing by the trial court and that the trial court excluded evidence that unduly protected a witness for Mullen. We have already held that the trial court did not err in serving Smith with a notice of hearing or in excluding the evidence Smith refers to. Accordingly, we overrule Smith's tenth issue.
We interpret this as a reference to sections 1 and 3a of article I of the Texas Constitution. Neither section pertains to trials or the lack of impartiality of a trial court.
SUPREME COURT RULINGS
In his eleventh issue, Smith argues that the trial court erred by using the parties' ignorance of the law as an excuse for not seeking justice and diligently exercising "due process of procedure" to discover the facts of the case in violation of rulings by the United States Supreme Court. He contends that prior rulings deemed it appropriate for a court to "guide procedure presented by Pro Se parties to best serve justice." Smith cites no case authority and offers no analysis relating to how the trial court erred. Because Smith does not cite to authorities or the record and offers no analysis, he has waived his complaint regarding the trial court's alleged violation of Supreme Court rulings. See TEX. R. APP. P. 38.1(h); Huey , 200 S.W.3d at 854. Accordingly, we overrule Smith's eleventh issue.
JUDICIAL BIAS
In his twelfth issue, Smith contends that the trial court violated judicial canons 2(B); 3(B), subsections (4) and (8); and 6(C), subsections (1)(a) and (2). He argues that the trial court failed to properly hear his case by preparing orders beneficial to Mullen, threatened him with contempt when he protested, and intimidated him throughout the hearings, making it impossible for him to present his evidence in full. As a result, Smith contends that certain evidence was not presented to the trial court.
Applicable Law
Due process requires a neutral and detached hearing body or officer. Earley v. State , 855 S.W.2d 260, 262 (Tex.App.-Corpus Christi 1993), writ dism'd, improvidently granted, 872 S.W.2d 758 (Tex.Crim.App. 1994) (citing Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973)). In the absence of a clear showing to the contrary, we will presume the trial court was a neutral and detached officer. Id. (citing Fielding v. State , 719 S.W.2d 361, 366 (Tex.App.-Dallas 1986, pet. ref'd)). The complaining party must show the judge acted improperly and that the party suffered probable prejudice as a result. Rymer v. Lewis , 206 S.W.3d 732, 735-36 (Tex.App.-Dallas 2006, no pet.). In conducting our review, we examine the entire record. Id. at 736.
Judicial rulings alone almost never constitute a valid basis for a bias or impartiality motion. Liteky v. United States , 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994). Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the trial court learned from participation in the case. See In re K.L.R. , 162 S.W.3d 291, 312 (Tex.App.-Tyler 2005, no pet.). A trial court has the inherent power to control the disposition of cases. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 240 (Tex. 2001).
Canon 2(B) states that a judge shall not allow any relationship to influence judicial conduct or judgment or lend the prestige of judicial office to advance the private interests of the judge or others. TEX. CODE JUD. CONDUCT, Canon 2(B), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005). Canon 3(B)(4) states that a judge should be patient, dignified, and courteous to litigants and others with whom the judge deals in an official capacity. TEX. CODE JUD. CONDUCT, Canon 3(B)(4), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005). Canon 3(B)(8) provides that a judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. TEX. CODE JUD. CONDUCT, Canon 3(B)(8), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005).
Smith also cites canon 6(C), subsections (1)(a) and (2). This canon pertains to justices of the peace and municipal court judges. See TEX. CODE JUD. CONDUCT, Canon 6(C)(1)(a), (2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005). The trial judge in this case was a district judge. Therefore, this canon does not apply.
Analysis
We review the entire record in determining whether the trial court was fair and impartial. See Rymer , 206 S.W.3d at 736. Regarding canon 2(B), Smith appears to argue the trial court prepared orders beneficial to Mullen "prior to rest." In liberally interpreting Smith's argument, we conclude that he is referring to the order on the motion to modify to which he objected. At a hearing on the order, Smith objected to a number of paragraphs and provisions in the order, and the trial court overruled all but one objection. Regarding canon 3(B), subsections (4) and (8), Smith contends that the trial court intimidated him, threatened him with contempt, and allowed Mullen to present hearsay without proof.
The record demonstrates that contrary to Smith's assertions of bias and intimidation, the trial court was patient, attentive, and professional. We cannot find any examples of intimidation or threats to hold Smith in contempt. Even though Smith complains that the trial court violated judicial canon 2(B), he does not specify in what manner this canon was violated. Further, Smith does not identify any extrajudicial source that influenced the trial court's decision nor has he directed us to any evidence in the record from which we might conclude any such influence existed. See In re K.L.R. , 162 S.W.3d at 312. Thus, in substance, he complains only of actions taken by the trial court while acting in its judicial capacity at trial. Based upon our review of the record, we conclude that Smith has failed to make a clear showing that the trial court was biased, intimidating, or threatening and, therefore, we must presume that the trial court was a neutral and detached officer. See Earley , 855 S.W.2d at 262. We overrule Smith's twelfth issue.
VISITATION
In his fifteenth issue, Smith argues that the trial court erred in changing when he must designate whether he intended to pick up the children from school on his midweek visitation. Smith contends that the changed provision was not presented or heard during the hearing, that the trial court specifically stated that anything not mentioned would not be modified from the original decree, and, thus, this provision should be stricken from the order. The standard possession order in the final decree includes only one reference to a twenty-four hour notice. Specifically, a handwritten addition to the order provides that "for all periods of visitation [where the] parties reside less than 100 miles apart, Mr. Smith shall have the right to pick up the children from their school, provided Mr. Smith gives [Mullen] verbal or written notice 24 hours in advance of each period of possession."
The proposed order on the motion to modify stated that if Smith gives Mullen "written notice prior to the beginning of the school year, [Smith] shall have the right to pick up the children from school on Thursdays that school is in session, at the time that school is dismissed for that day, and return [the] children to the home of [Mullen] at 8:00 [p.m.] that night." After Smith objected to this language at the hearing, the trial court added a handwritten provision to the order to alleviate Smith's concern that he might not be able to anticipate when he could exercise midweek visitation. The additional language provided that "all visitation from school [was] cancelled unless [Smith] gives prior notice at least twenty-four hours in advance."
The handwritten addition in the original divorce decree did not specifically reference the midweek visitation and applied to "all periods of visitation." The handwritten provision in the order on the motion to modify relates only to the visitation from school but does not change the amount of notice required. In our view, this does not significantly change the original order. Therefore, we cannot conclude that the trial court erred by including the challenged provision in the motion to modify. Accordingly, we overrule Smith's fifteenth issue.
DISPOSITION
The judgment of the trial court is affirmed . Mullen's motion for sanctions is overruled