Opinions, Nov. 22, 2016: The Perils of Appealing with a Partial Record

The Fourteenth Court of Appeals released a memorandum opinion today in In re A.I.F., No. 14-16-00016-CV which concerned an appeal of a modification. While it is not at all clear that appellant’s appeal would have fared substantially better with a full and complete record, it is clear that the partial record precluded even a fair hearing of his appeal.

Mother and Father were divorced in November 2013 and Mother was awarded SMC. Father was awarded supervised visitation for twelve hours each week. A few months later, Father filed a motion to modify possession and access. A jury heard Father’s request to change conservatorship but the jury declined to change conservatorship. The Father tried the issue of expanded access to the bench, but the judge (in the 311th judicial district court) rendered a final order further limiting Father’s access to ten to twelve hours a month. After his motion for new trial was denied, Father appealed.

Father asserted ten issues on appeal. Mother alleged the appeal was frivolous and asked to be awarded damages. The Court of Appeals addressed Father’s issues not in the order he briefed them, but roughly chronologically.

First, regarding Father’s complaints concerning the trial, the reporter’s record was incomplete and contained only a transcript of the hearing on Father’s motion for new trial. The Court of Appeals noted that an incomplete record is not always fatal to an appeal, but then held that because the record in this case did not include the parties’ agreement to a partial reporter’s record, an agreed statement of the case, or a statement of Father’s issues to be presented on appeal, the COA must presume the material omitted from the record supported the trial court’s judgment. This led the COA to overrule Father’s first, third, fourth, fifth, sixth, and eighth issues (i.e. six of ten).

Father also challenged the fees awarded to the amicus, evidently misstating the amounts awarded in his brief. But even if he had challenged the correct amounts, the COA held it would have overruled the issue because it must presume the missing portions of the record would have supported the award.

Father also challenged a statement made by the trial court after ruling on his post-judgment motions but the COA found the trial court’s statement was correct and unobjectionable. After the trial court denied Father’s motion for new trial and excused the litigants, Father remarked “Your Honor, my son is suffering the consequences of the decision of this Court.” The trial court responded (correctly, as the COA noted) “Mr. [Father], your appropriate remedies now don’t lie in this Court. Okay? You’re excused. Thank you.” The issue–and even the Court of Appeals wasn’t sure what it was–was overruled.

In his seventh issue, the Father challenged Associate Judge Newey presiding over cases and signing orders past the retirement age of 75. The COA found that whether Judge Newey’s appointment as an AJ violated the Texas Constitution or the Family Code depends on the date of his birth, which was not a fact litigated in the case. The issues was overruled.

In his final issue, Father argued a California trial court reached an erroneous judgment in his 1994 personal-injury suit. The issue was overruled.

Finally, the Court of Appeals turned to Mother’s request for sanctions. She argued the appeal was frivolous and brought in bad faith. The Court of Appeals noted it generally awards sanctions “only in truly egregious circumstances” and declined Mother’s request.

The trial court was affirmed.

 

 

 

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