Opinion
01-20-00186-CV
08-10-2021
JENNIFER PLACE, Appellant v. LOGAN MCCOY, Appellee
On Appeal from County Court at Law No. 3 Galveston County, Texas Trial Court Case No. 09-FD-1439
MEMORANDUM OPINION
Richard Hightower Justice
Appellee Logan McCoy filed the underlying petition for modification of the parent-child relationship, seeking to modify the custody arrangement regarding his minor child, C.M., with appellant Jennifer Place. The trial court granted the modification, ordering that McCoy and Place be joint managing conservators and naming McCoy as the parent with the exclusive right to designate C.M.'s primary residence and to make educational decisions for C.M. The trial court further granted Place visitation in accordance with a standard possession order, with custody of C.M. on the first, third, and fifth weekends from Friday after school until Sunday evening in addition to some summer and holiday visits.
Place challenges the final order, arguing that the trial court (1) erred "by not accepting critical evidence during trial"; (2) "violated [the] Texas Code of Judicial Conduct by unequal enforcement of a rule he issued in court" related to the parties' interactions with the minor child, C.M., which "allowed coached testimony into evidence"; (3) erred "by ignoring [her] counter-petition filed November 12, 2019"; and (4) was biased against her.
We affirm.
Background
In 2010, Place and McCoy divorced, and the trial court named both parents as joint managing conservators of their minor child, C.M., who was two years old at the time. Place and McCoy agreed to share custody, with C.M. spending two weeks at a time with each parent. McCoy agreed to pay child support and medical expenses.
In 2012, McCoy petitioned for a modification of the custody and support orders for C.M., alleging that the need for C.M. to enroll in kindergarten and Place's move from Galveston to Irving necessitated a change to the previous custody arrangement. He asked that he be appointed as the party with the exclusive right to designate C.M.'s primary residence. McCoy further asked to be granted the exclusive right to make educational decisions, and he asked that Place be granted visitation in accordance with a standard possession order.
The trial court rendered a final order (the 2012 order) naming Place and McCoy joint managing conservators, and it granted McCoy the exclusive rights to designate C.M.'s primary residence and to make decisions concerning C.M.'s education. The trial court further rendered an expanded possession order granting Place regular visitation, and the trial court ordered that Place pay $223 per month in child support.
In 2019, McCoy again filed a petition to modify the parent-child relationship. Place had relocated from Irving to Texas City and had regular visitation with C.M. C.M. was enrolled in school in the Clear Creek Independent School District, where McCoy resided. McCoy asked that the trial court-now with a new presiding judge-reduce Place's possession so that C.M. did not spend any school nights with her, and he asked the trial court to "order reasonable periods of electronic communication" between them to supplement her periods of possession. He alleged that C.M. would be entering sixth grade and the current custody arrangement was no longer adequate to meet C.M.'s needs. He asserted that, when Place had possession on school nights, C.M. was frequently tardy. He alleged that allowing C.M. to remain in his possession on all school nights would ensure that C.M. was properly rested, dressed, and prepared for school the following mornings. The associate judge for the court signed temporary orders granting the relief requested by McCoy.
Place filed a counter-petition to modify the parent-child relationship, asking that she be named as the party with the exclusive right to designate C.M.'s primary residence. She also filed a motion asking the trial court to confer with C.M. regarding his wishes.
The final hearing on the petition and counter-petition was conducted by the trial court. McCoy testified that C.M. was tardy on more than 40 occasions- exclusively on the mornings following Place's periods of possession-in the school years leading up to the petition for modification. He stated that he had obtained the information from school records that he could access through the website that allowed parents to track their child's grades and attendance. McCoy testified that repeatedly arriving late was a problem because it prevented C.M. from attending tutoring and trombone lessons, which were held before school started. McCoy further testified that he was concerned this would be even more detrimental to C.M. once he began middle school, where he would be required to wear a particular uniform and would have more need for tutoring.
Place did not deny that C.M. was frequently tardy on mornings that she was responsible for getting him to school, but she explained it by stating that the tardies accumulated while she was going through a hard time with her daughter from another relationship.
Place also testified regarding her relationship with C.M. and her co-parenting relationship with McCoy. She did not believe that her conduct had endangered C.M. or undermined his well-being, and she did not think that limiting her visitation so that it no longer included school nights was appropriate. Rather, she asked the trial court to grant her the exclusive right to designate C.M.'s primary residence, stating that it was in C.M.'s best interest to spend more time with her. Place asked the trial court to confer with C.M. directly regarding his wishes, and the trial court agreed to do so.
Following this bench trial, the trial court rendered its final order, ordering that McCoy and Place continue as joint managing conservators and that McCoy continue as the party with the exclusive right to designate C.M.'s primary residence. The trial court further granted Place visitation according to a standard possession order, with her weekend custody starting after school Friday and ending at 6:00 p.m. Sundays and including summer and holiday visitation. The trial court ordered that the remainder of the 2012 order, including the order for Place to continue paying child support, continue in effect.
Evidentiary Complaints
In her first two issues, Place complains about the trial court's evidentiary rulings. We review the trial court's decision to admit or exclude evidence for an abuse of discretion. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007); D &M Marine, Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
In her first issue, Place argues that the trial court "erred by not accepting critical evidence" demonstrating "that no conduct was taken on the part of Ms. Place that produced a significant change to [C.M.'s] mental or physical development." Place argued generally that she "attempted to bring evidence into court, to demonstrate both Mr. McCoy's abusive behavior, as well as his willful neglect of the minor child's mental development." She referenced a series of text messages that she argues showed that McCoy "declined to allow [C.M.] to go to a psychologist."
Place attempted to introduce 35 pages of text messages that she alleged were exchanged between herself and McCoy. The trial court admitted two pages of text messages that McCoy confirmed passed between himself and Place. Regarding the remaining pages, the trial court ruled, "He's only identified that one part of the text. I'm going to give you an opportunity to further question him. At this time, I'm going to sustain the objection [to the admissibility of] the remaining texts, unless you properly authenticate the remaining pages of those texts that you're offering." Place did not provide a predicate for the admission of the remaining texts, and they were not admitted into evidence or included in the reporter's record. Place did not make an offer of proof regarding the excluded text messages, and the excluded messages are not included in the appellate record.
To challenge the exclusion of evidence on appeal, the complaining party must present the excluded evidence to the trial court by an offer of proof or formal bill of exception and obtain a ruling. In re Estate of Miller, 243 S.W.3d 831, 837-38 (Tex. App.-Dallas 2008, no pet.); Bishop v. Comm'n for Lawyer Discipline, No. 01-18-01115-CV, 2020 WL 4983246, at *12 (Tex. App.-Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.) (discussing offer of proof or bill of exception sufficient to preserve error); see TEX. R. EVID. 103(a); TEX. R. APP. P. 33.2. Because Place did not make an offer of proof or file a bill of exceptions to preserve the evidence for the appellate record, she has waived her complaint that the trial court erred in refusing to admit the evidence.
To the extent Place is complaining of the exclusion of some other evidence, we observe that the record must show that she offered the evidence and that the trial court actually excluded the evidence. See TEX. R. APP. P. 33.1(a); In re Marriage of Rangel &Tovias-Rangel, 580 S.W.3d 675, 679 (Tex. App.-Houston [14th Dist.] 2019, no pet.) ("To show that the trial court abused its discretion in excluding evidence, a complaining party must preserve error by actually offering the evidence and obtaining an adverse ruling from the court."). There is no such showing regarding any other evidence.
We overrule Place's first issue.
In her second issue, Place argues that the trial court "violated [the] Texas Code of Judicial Conduct by unequal enforcement of a rule he issued in court" related to the parties' interactions with the minor child, C.M., which "allowed coached testimony into evidence." Place's brief does not clearly identify the "rule" or order that the trial court purportedly failed to enforce equally, nor does she identify the complained of "coached testimony." Place argues only that the trial court "erred in that he allowed corrupted testimony be entered into evidence while speaking to the minor child."
On the record, at the conclusion of the bench trial, the trial court admonished both McCoy and Place to remember that "[t]he best thing [they] can do for this child is to make sure that [they, ] in making decisions, in speaking with this child and speaking in the presence of this child, make sure that whatever differences you have that you put this child's interest first and foremost." The trial court then stated that it would grant Place's request that he talk with C.M. prior to ruling on the petition for modification, but no record was made of any such meeting. C.M. did not testify during the bench trial. The record does not contain any orders addressing the parties' communications with C.M. about the legal proceedings. Again, Place has failed to demonstrate that the complained-of evidence was offered into evidence and that she objected to it, and she has failed to identify the order or rule that the trial court purportedly failed to enforce. See TEX. R. APP. P. 33.1(a). Because the underlying factual basis for her complaint is not supported by the record, we conclude that she has not shown error. See Radbil v. Medard Interest, Inc., No. 01-19-00762-CV, 2021 WL 1096319, at *2 (Tex. App.-Houston [1st Dist.] Mar. 23, 2021, no pet.) (mem. op.) ("A party asserting error on appeal bears the burden of showing that the record supports the contention raised and of specifying the place in the record where matters upon which it relies or of which it complains are shown.").
We overrule Place's second issue.
Counter-Petition
In her third issue, Place contends that the trial court erred by "ignoring" her counter-petition. This complaint is, likewise, not supported by the record.
As the bench trial began, the trial court summarized the issues to be addressed. McCoy's attorney stated that "[p]ossession and access and an injunction against a person" were the remaining issues, based on McCoy's petition. Place informed the trial court that she had filed a counter-petition seeking custody of C.M., and the trial court responded, "So, conservatorship is an issue, too, based upon [Place's] pleadings." During his case-in-chief, McCoy addressed Place's conservatorship issues and request to be named as the party with the exclusive right to designate C.M.'s primary residence. McCoy testified that he had concerns about the quality of the schools in Texas City, where Place resided. He testified that he lived in the Clear Creek Independent School District, which had some of the best schools in the area. McCoy believed it was in C.M.'s best interest for Place and him to remain joint managing conservators and for him to retain the right to choose C.M.'s primary residence. The trial court further allowed Place to make her closing arguments, including a request that the conservatorship be changed and that she be named as the party with the exclusive right to designate C.M.'s primary residence. At the close of the bench trial, the trial court stated on the record that he was going to take the "requests for relief as far as conservatorship, possession and access, . . . and injunctive relief . . . under advisement[.]"
Thus, the factual basis for this complaint is not supported by the record. See id. The record demonstrates that the trial court did consider her counter-petition.
We overrule Place's third issue.
Bias
In her fourth issue, Place argues that the trial court was biased against her. She asserts that the trial court demonstrated "affirmation bias" in deferring to previous rulings of prior judges, including deferring to the 2012 order. Place argues that the trial court failed to fully consider the history of the case and to address the participation of other purportedly biased judges in the past. She further complains that the trial court's rulings excluding evidence and "failing to follow his own rules given at trial," as discussed above, demonstrated his bias.
Place also complains regarding the conduct of prior judges, particularly in connection with the 2012 order. However, this Court has no jurisdiction to consider complaints raised regarding the 2012 order because the deadline for appealing that final order passed before the underlying petition for modification was filed. See In re R.R.K., 590 S.W.3d 535, 539 (Tex. 2019) (holding that party may appeal "final order" in suit affecting parent-child relationship, including final order in modification proceeding, and party seeking to appeal it must file notice of appeal within 30 days of final order). And to the extent she is complaining about the temporary orders rendered on the underlying petition, we further observe that a temporary order is superseded by entry of a final order and renders the temporary orders moot. See Mauldin v. Clements, 428 S.W.3d 247, 262 (Tex. App.-Houston [1st Dist.] 2014, no pet.).
Parties have a right to a fair and impartial trial. Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (citing Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App.-Houston [1st Dist.] 1994, writ denied)). One of the fundamental components of a fair trial is a neutral and detached judge. Id. (citing Ward v. Village of Monroeville, 409 U.S. 57, 62 (1972)). "To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed and (2) probable prejudice to the complaining party." Id. (quoting Metzger, 892 S.W.2d at 39).
Here, Place provides no evidentiary basis for her opinion that the trial court did not fully consider her case and its history. She did not object to any comments, rulings, or actions of the trial court based on bias. An objection is normally required to preserve complaints about judicial misconduct, such as bias. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (holding that objection to allegedly improper conduct was required unless conduct cannot be rendered harmless by proper instruction); In re M.J.M., 406 S.W.3d 292, 299-300 (Tex. App.-San Antonio 2013, no pet.). In the absence of clear proof to the contrary, we presume a trial judge is impartial and unbiased. Hammack v. Pub. Util. Comm'n of Tex., 131 S.W.3d 713, 731 (Tex. App.-Austin 2004, pet. denied) ("Decision makers are presumed fair, honest, and unbiased."). Contrary to Place's general contentions, the record here demonstrates that the trial court held a full hearing and considered all the evidence and pleadings before it. The trial court ultimately ruled that Place and McCoy should remain joint managing conservators and that McCoy should continue as the parent with the exclusive right to designate C.M.'s primary residence. The trial court further determined that adjusting the previous custody schedule so that Place had visitation on a standard possession order and McCoy had custody on school nights. This ruling does not demonstrate bias, particularly in light of the evidence that C.M. was tardy to school on numerous occasions while in Place's custody.
Regarding the bias purportedly demonstrated by excluding evidence and ruling against her on her petition to be named the party with the right to designate C.M.'s primary residence, we observe that "judicial rulings alone almost never constitute a valid basis" for showing the trial court's bias or partiality. Francis, 46 S.W.3d at 240. Reversible bias or partiality occurs only when the judge's conduct showed "a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The trial court's ruling excluding unauthenticated text messages and any actions undertaken by the trial court in conferring with C.M. off the record do not rise to the level of demonstrating "deep-seated favoritism or antagonism." See id.; see also Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 185 S.W.3d 555, 574 (Tex. App.-Austin 2006, pet. denied) ("A decisionmaker exhibits impermissible bias when '[t]he bias . . . come[s] from an extrajudicial source and result[s] in an opinion on the merits of the case other than what the judge learned from participating in the case.'") (quoting Rosas v. State, 76 S.W.3d 771, 774 (Tex. App.-Houston [1st Dist.] 2002, no pet.)). We conclude that Place has failed to demonstrate that the trial court was biased against her.
We overrule Place's fourth issue.
Conclusion
We affirm the judgment of the trial court.
Panel consists of Justices Kelly, Landau, and Hightower.