Supervised Visitation & Judgment Nunc Pro Tunc: Opinions, Sept. 12, 2017

The Fourteenth Court of Appeals released a published opinion and a memorandum opinion this morning. The published opinion is on supervised visitation and the memorandum opinion is yet another installment in the Reynolds Saga, which I previously blogged about here and here and here.

In In re A.G. & A.F.G., No. 14-16-00341-CV, a father challenged the trial court’s modification order which required the father’s visitation be supervised and the denial of his motion for enforcement against the mother.

Mother and father were divorced in Austin County in 2006. Under the decree, mother had primary custody of their two children and father had an SPO. In 2014, the father filed a modification seeking primary custody of the son who had not yet aged out. After a hearing, the trial court entered TO awarding primary custody to the father. The case was then transferred to Harris County. In March 2015, the parties entered into a Rule 11 agreement under which the child returned to live with the mother as primary and father had a SPO. But in his first amended petition, the father reiterated his request for primary. In her second amended petition, the mother requested the father be denied access to the children or, alternatively, supervised because he posed a danger to the children’s physical and emotional well-being. In November 2015, the father filed a motion for contempt, alleging the mother had been preventing his visitation with the children under the Rule 11 agreement.

The case was tried in March 2016. A licensed professional counselor testified she had made a written report to CPS regarding allegations of the father beating the children. The father denied having struck the children. The mother testified to having observed bruises on the child when he returned from visitation with the father and that the children had told her that the father beat them. The children conferred with the judge in chambers. At the end of trial, the judge ruled the father’s visitation needed to be supervised and denied the father’s enforcement.

The COA noted that the record indicated findings of fact were not requested or entered and therefore the court must infer that the trial court made all findings necessary to support its judgment (reading between the lines: no dice for appellant). Because there was some evidence of the father posing a physical danger to the children which was legally and factually sufficient, the ruling was affirmed.

In his second issue, the father alleged the trial court abused its discretion by denying his motion for enforcement and granting the mother’s motion for judgment which evidently objected to the father’s motion for enforcement as not complying with the statutory requirements of an enforcement motion. At trial and before signing the judgment, the trial court had questioned whether the father’s motion met the requirements of TFC 157.002. The COA found the motion was deficient in several ways (it did not identify the provisions of the decree allegedly violated, or state the times and locations in which the order was violated). The father also filed a supplemental motion which also failed to provide the date, place, time, or manner of noncompliance for each alleged violation. The father argued that the mother waived these objections by not filing special exceptions, but the COA noted that these deficiencies were “the very subject of” the mother’s motion for judgment.

Both of father’s issues were overruled and the trial court was affirmed.

In In re Reynolds, No. 14-17-00614-CV, the COA partially granted and partially denied a petition for writ of mandamus.

The parties, Wilma and David Reynolds, were divorced in July 2008. A final decree was signed in May 2009. Wilma appealed the property division and the COA affirmed it because Wilma had waived her right to appeal by accepting the benefits of that judgment. More than eight years after the decree was signed, she filed a motion for judgment nunc pro tunc in July 2017 asking the trial court to modify certain provisions of the decree based on alleged clerical errors which, she argued, did not conform to the trial court’s pronouncement of judgment at trial. David responded, asking the trial court to deny the motion and to impose sanctions on Wilma and her attorney for prosecuting an allegedly frivolous case. After a hearing, the trial court denied Wilma’s motion and granted David’s motion, ordering Wilma’s attorney to pay a penalty and attorney’s fees in the amount of $40,000.

The COA observed that the law states that proof of a difference between the judgment rendered and the judgment entered is not enough to require correction by JNPT; there must also be a fact finding, support by evidence of the trial judge’s personal recollection, that the variance resulted from clerical error.

Wilma asserts the oral division of property differed from the written judgment as to four different categories of property. After examining each category, the oral pronouncement, the findings of fact and conclusions of law and the written decree, the COA disagreed on each and affirmed the trial court.

Turning to the sanctions order, the opinion paused to examine the parties and the procedural posture. Specifically, the sanctions order is predicated on conduct of Wilma and her attorney and, though not crystal clear, it appears to impose sanctions on both Wilma and her attorney. But Wilma was the only named relator in the mandamus petition and Wilma only has standing to challenge the sanctions awarded against her. That is, because her attorney did not seek appellate review in his own capacity, the COA can only address the sanctions order as it relates to Wilma.

Nonetheless, a trial court cannot enter a sanctions order after its plenary jurisdiction has expired and the trial court’s plenary jurisdiction had long since expired in this case and thus the sanctions order was void.

Will this be the end of the Reynolds Saga? Time will tell.

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