Opinions, June 9, 2016: Satan Worshiping, the Fifth Amendment, & Weak Arguments

Today we have two opinions from bizarre, unfortunate cases which make you shake your head in confusion and disappointment. This morning, the Fourteenth Court of Appeals released a published opinion in In re P.A.C. and K.V.C., No 14-14-00799-CV and the First Court of Appeals released a memorandum opinion in Vargas v. Vargas, No. 01-15-00690-CV.

In In re P.A.C. and K.V.C., the Fourteenth Court of Appeals upheld the final order modifying the parent-child relationship. Marisa Lawcasey and Daniel Casey were divorced in May 2012. Both were appointed JMCs of their two children, with Daniel as primary. The trial court ordered Marisa’s access be supervised until the end of July 2012 or until Marisa completed a psychological evaluation, whichever came later. If Marisa completed the evaluation and Daniel did not present good cause to continue the supervised visitation, then Marisa would be entitled to a “step up” order beginning August 1, 2012.

Over the next couple of months the trial court held hearings and Daniel presented evidence of good cause for the supervised access to continue. The trial court signed an order modifying the parent-child relationship on October 4, 2012.

Daniel remarried in June 2013. In 2013 and 2014, both Daniel and Marisa filed original and amended petitions to modify. Marisa sought a SPO and to be designated primary. Daniel sought to be named SMC and that Marisa’s access continue to be supervised.

The matter was tried to a jury in May and June 2014. The jury found Marisa should not be primary, but also found Daniel should not be named SMC. In the final order signed July 23, 2014, the trial court ordered that the parents remain JMCs with Daniel as primary, but also awarded Daniel the exclusive right to consent to the children’s marriages and to represent them in legal actions (rights that had been shared in the prior order). The trial court further ordered that Marisa’s possession continue to be supervised but provided she would be entitled to a step up MSPO if she complied with court-ordered psychological counseling and did not violate the court’s order. Marisa appealed.

In her first issue, Marisa challenged the legal and factual sufficiency of the evidence supporting the jury’s verdict denying her request to be appointed SMC. The trouble is, her pleadings didn’t request to be named SMC and she waived that issue on appeal.

In her second issue, Marisa argued the trial court abused its discretion by awarding the exclusive rights to consent to the children’s marriages and to represent the children in legal actions “where no such relief had been pled by [Daniel].” In his petition to modify, Daniel asked to be named the SMC, but did not specifically ask to have exclusive rights to consent to the children’s marriages and to represent the children in legal actions.

The Court of Appeals held that those rights are enumerated in section 153.132 of the Texas Family Code among the exclusive rights belonging to SMCs. Thus, by requesting to be named SMC, Daniel constructively requested each of the rights that entailed. The Court of Appeals overruled Marisa’s second issue.

In her third issue,¬†Marisa argued the trial court abused its discretion by deviating from the SPO by limiting Marisa’s periods of possession and ordering supervised visitation. In its final order, the trial court found that the presumption that the SPO was in the best interest of the children had been rebutted, rendering an SPO unworkable and inappropriate. Marisa did not request, and the trial court did not make, findings as to why the court found the SPO should be modified. The Court of Appeals then reviewed the evidence in the record which support the finding, including Marisa’s repeated violation of the trial court’s orders, including hostility at exchanges, refusing to shift her visitation times to accommodate the children’s schedules, and complete failure to comply with the rules of the supervised visitation facilities. The court-ordered psychologist diagnosed Marisa with major depressive order and obsessive compulsive personality disorder. The opinion continues reciting evidence that portrayed Marisa in a negative light, including emails and text messages accusing Daniel of worshiping Satan (“Your serving and worshiping Satan is really confusing my children.”; “As we move forward to taking the case to Washington D.C. then you will get your day with the President of the U.S.”).

The Court of Appeals acknowledged that though supervised visitation is rare in JMC cases, it “may be appropriate when dictated by the circumstances.” In summary, the Court of Appeals affirmed the trial court’s order.

In Vargas v. Vargas, the memorandum opinion from the First District Court of Appeals, Nilson Vargas argued the trial court abused its discretion in denying his motion to appoint an attorney ad litem. The Court of Appeals affirmed.

Nilson and Jessica married 1999. Jessica filed for divorce after Nilson admitted he had inappropriate sexual contact with two underage boys. Nilson was indicted for indecency with a child.

The parties entered an agreed order which allowed Nilson supervised visitation but Jessica began to feel less comfortable about the interactions and refused to allow Nilson further visitation with the children.

A month before trial, Nilson filed a motion for appointment of an attorney ad litem which was heard a week before trial. The motion was denied because the trial court concluded the AAL was unnecessary because the parties were well represented by counsel and the court would be able to get “the whole story” through them at trial.

At bench trial, Jessica was the only witness to testify on relevant issues and, based on the foregoing, asked that Nilson be denied any visitation. Nilson was called by Jessica, but he pleaded the Fifth. Nilson did not call any witnesses and did not submit any evidence in support of his argument for visitation with his children. The trial court ordered Nilson could have 32 hours per month of supervised visits.

Nilson’s sole issue on appeal is whether the trial court erred by denying his request to appoint an AAL. The Court of Appeals noted the decision to do so is discretionary and the trial court stated it believed it would be able to get “the whole story” at trial. Nilson argued on appeal that the trial court did not get the whole story at trial because of his inability to testify due to “pending criminal charges” and “exercising his Fifth Amendment rights.” He further argues that there was no expert psychological testimony and that an AAL “could have bridged that gap.”

Kudos to the Court of Appeals for treating this as a serious argument. I doubt I could do it. The Court of Appeals found Nilson’s argument “problematic” because 1) he did not present any testimony from himself or other witnesses, any documents, or any expert testimony of his own; and 2) he was asking the Court of Appeals to conclude the trial court erred in making a pre-trial ruling only by comparing that pre-trial ruling against the subsequent trial, which is improper. In short, the Court of Appeals found the trial court based its ruling on the best interest of the children and did not err.

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