Modification in Less Than a Year & Partial Revocation of a Rule 11: Opinions, July 11, 2017

Yesterday, the Fourteenth Court of Appeals released a published opinion, In re J.R.P., No. 14-15-00912-CV, and a memorandum opinion, In re D.R.G., No. 14-16-00023-CV. The published opinion concerns modifications of custody within a year of a final order and the memorandum opinion is on partial revocation of a Rule 11 agreement.

Taking the published opinion first, In in re J.R.P., a conservatorship order was entered in December 2013, naming the parents as JMCs with mother as primary. Father filed a mod in May 2014 and alleged in his affidavit that the mother had been taking drugs. At a temporary orders hearing in June, the mother requested the case be dismissed because father’s affidavit was not sufficient to support a less-than-a-year mod. The trial court declined to dismiss the case and the parties agreed the mother would submit to drug testing the next day. Within a few weeks, the father filed an amended mod petition with a revised affidavit which stated the mother had tested positive for drug use. The court conducted a temporary orders hearing and found the child’s living environment with mother endangered the child. The trial court awarded father primary and mother supervised visitation.

Trial took place in May and July 2015 at which further evidence of mother’s drug use was presented. Mother represented herself pro se. In August, the trial court granted the father’s petition to modify and entered an order appointing father and mother as JMCs with father as primary. After her motion for new trial was denied, mother appealed.

In her first two issues, mother argued the trial court erred in not dismissing the mod after finding father’s first supporting affidavit was insufficient and when it ruled the second affidavit was sufficient. The Court of Appeals found that the trial court did not abuse its discretion because the statute does not require dismissal and the trial court’s findings of fact and conclusions of law set forth its findings that the second affidavit was sufficient under the statute.

In her third issue, mother argued the trial court erred by granting the mod when there was no material and substantial change. This argument did not get very far because the evidence showed that since the entry of the prior order in December 2013, the mother had tested positive for drugs, refused to participate in CPS services or drug testing, admitted to using drugs (including crystal meth and marijuana), and there was testimony that mother’s behavior was erratic. The opinion also includes the following sentence presented without comment: “To the extent [the mother] argues that she was unstable and had a drug habit prior to the agreed final order in December 2013 and her use of drugs after that order was a continuation of established behavior, the trial court could have rejected this argument based on [the father]’s testimony that she had passed a drug test prior to the final order and he thought she had stopped using drugs.” The COA overruled the third issue.

In her fourth issue, the mother alleged the trial court erred by relying on “hearsay statements of an admitted perjurer,” i.e. the father. The COA found there was sufficient non-hearsay evidence to support the judgment.

The COA overruled the mother’s fifth issue concerning admissibility of evidence because the issue was not preserved. The judgment was affirmed.

In In re D.R.G., parents who had been named JMCs in the prior order filed competing mod petitions. They then signed a Rule 11 agreement on all issues, including their agreement to remain JMCs with father’s child support increasing. One provision allowed the child to travel by air without the father’s supervision upon reaching the age of ten. But in his amended petition, the father requested an order allowing the child to fly alone beginning at the age of five. Four months after signing the Rule 11, the father filed a motion for partial revocation of the Rule 11, specifically with regard to the travel age provision.

At trial, the trial court requested evidence to show the agreement was in the best interest of the child. The mother testified that she did not believe it was in the child’s best interest to fly alone at the age of six. The father testified that the child would be accompanied by a flight attendant and the child would never be left alone and would not be in danger. He also testified that he felt coerced into authorizing his attorney to sign the Rule 11 agreement because the mother had allegedly refused to turn over possession of the child to be the ring-bearer in the father’s wedding unless he signed the Rule 11.

The trial court signed an order which found the child could travel by air unaccompanied after the age of five. The mother appealed, seeking modification of the judgment to prohibit the child to fly alone until the age of ten.

On appeal, the mother asserted two issues: 1) the evidence was insufficient to support the father’s allegation that he was under duress and coercion when he signed the Rule 11 agreement; and 2) the Rule 11 was unambiguous and the trial court was required to sign a judgment consistent with the Rule 11 agreement because a) the father withdrew his consent to only a portion of the agreement which is not effective to withdraw consent because the agreement was an integral whole, and b) the father’s attorney signed the Rule 11 agreement with the father’s permission.

The Court of Appeals found the father’s partial revocation was sufficient to prevent the trial court from rendering an agreed judgment and the trial court did not err in rendering a judgment on the issues raised by the parties’ petitions in accordance with the best interests of the child.

The COA found that the father’s partial revocation was effective, contrary to the mother’s argument, citing the “familiar principle” that partial revocation of a Rule 11 prevents a court from entering an agreed or consent judgment.  The agreement was not an MSA, which would have required the trial court to enforce the MSA, regardless of a party’s revocation of consent. Additionally, the mother did not challenge the trial court’s best interest finding, so the COA was not required to review it. The judgment was affirmed.









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