Blackwell v. Humble

241 S.W.3d 707, 2007 Tex. App. LEXIS 9725, 2007 WL 4354425
CourtCourt of Appeals of Texas
DecidedDecember 14, 2007
Docket03-05-00118-CV
StatusPublished
Cited by34 cases

This text of 241 S.W.3d 707 (Blackwell v. Humble) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackwell v. Humble, 241 S.W.3d 707, 2007 Tex. App. LEXIS 9725, 2007 WL 4354425 (Tex. Ct. App. 2007).

Opinions

OPINION

DAVID PURYEAR, Justice.

Appellant Angela M. Blackwell appeals from the trial court’s judgment limiting her access to her children. Blackwell argues that the trial judge should have re-cused himself sua sponte, that an assigned judge should have ordered the trial judge’s recusal, and that the trial court abused its discretion in limiting her access to the children, allowing the children’s grandmother and uncle to intervene, and naming [711]*711them possessory conservators. We reverse the trial court’s judgment in part and remand the cause for further proceedings.

Background

In October 2002, the trial court signed a final decree granting a divorce to Blackwell and appellee Mark M. Humble and naming them joint managing conservators of their children, Mt., a son born in June 1996, and Md., a daughter born in November 1999. The children’s primary place of residence was with Humble, and Blackwell had visitation rights.

In January 2003, Humble filed a motion for enforcement and a motion to modify, asserting that Blackwell had refused to return the children to Humble’s care after a visit and had threatened Humble in front of the children. Humble asked that Blackwell be held in contempt for violating the divorce decree and sought orders barring her from speaking to him and requiring her to arrange for a third-party to drop off and pick up the children. A hearing was held on Humble’s motion on February 13. On the morning of the hearing, Humble filed a supplemental petition asking the court to suspend visitation pending a mental health evaluation of Blackwell, alleging that Mt.’s grades had dropped recently, that Mt. seemed stressed, and that Blackwell told Md. to say that Betty French, the children’s paternal grandmother and Humble’s mother, had “choked her and kicked her.”

On March 7, the trial court signed an order requiring third-parties for pick-ups and drop-offs, ordering psychological evaluations of both children, and holding Blackwell in contempt, suspending a thirty-day jail sentence if Blackwell complied with the court’s orders, paid $3,000 in attorney’s fees, refrained from interfering with the psychological evaluations and any recommended treatment, and refrained from communicating with Humble except through the parties’ attorneys.

On March 10, Humble filed an “amended supplemental” petition, describing more troubling behavior by the children following visits with Blackwell. Humble alleged that the children acted wild and uncontrollable after an extended visit with Blackwell and that Mt. was exhibiting behavior similar to Blackwell’s older son, who was placed in an in-patient psychiatric facility when he was six years old but returned to normal behavior after he was removed from Blackwell’s care. Humble asserted that the children’s troubling behavior diminished when they were away from Blackwell for prolonged periods of time. Humble feared Blackwell would place “enormous pressure” on the children when they underwent their psychological evaluations and asked the court to suspend Blackwell’s visitation or, alternatively, to order supervised visitations.

On March 21, five days before the hearing on Humble’s motion, Blackwell filed a motion to recuse the trial court judge, Ed Magre, because he and Humble had practiced law together in the past. Judge Magre referred the motion to Judge B.B. Schraub, the presiding judge of the Third Administrative Judicial Region, who denied the motion without a hearing on March 25 because the motion was not timely filed and did not allege sufficient grounds for recusal. The March 26 hearing went forward as scheduled, and on April 2, the trial court signed an order limiting Blackwell to two supervised two-hour visits with the children per month and ordering her not to make disparaging remarks about Humble or his family. Because Dr. Frank Pugliese, the psychologist initially selected by the court to evaluate the children, was unavailable, the court ordered that Dr. David Poole evaluate the [712]*712children within three weeks. The court set a status hearing in ninety days. On May 23, Humble sent a letter to the trial court in which he stated that Dr. Poole’s “reports will be done as soon as he gets a bit of additional information.” On May 30, the trial court sent Blackwell a letter stating that enclosed with the letter were copies of Dr. Poole’s reports; the reports themselves, however, are not included in the record.

On June 19, Blackwell filed a second motion to recuse Judge Magre, stating that he and Humble practiced law together in the past and citing to rule 18b of the rules of civil procedure. Blackwell asserted that Judge Magre should have recused himself on his own motion or on Blackwell’s first motion. Judge Magre again referred the motion to Judge Schraub, who assigned it to Judge James Clawson, Jr. Humble filed a response, asserting that the grounds for recusal had been disclosed during the divorce proceeding in October 2002 and that Blackwell had waived her right to seek recusal. Following a hearing, Judge Clawson denied Blackwell’s motion to recuse.

In August 2004, Betty French and Monty Humble, Humble’s brother, filed a petition in intervention seeking to be named possessory conservators of the children. Blackwell opposed the petition in intervention, arguing that the intervenors lacked standing to intervene. The trial court held a hearing in September 2004 to consider the petition in intervention and to reconsider Blackwell’s visitation schedule. Following a hearing in September 2004, the trial court signed a judgment in January 2005, finding that the intervenors had had substantial and continued contact with the children sufficient to warrant standing to intervene under the family code, naming the intervenors as possessory conservators, and continuing to limit Blackwell’s visitation with the children to two supervised visits each month. It is from this judgment that Blackwell appeals.

Recusal

In her first two issues, Blackwell argues that the trial court judge should have re-cused himself from the case sua sponte. In' her third issue, she argues the judge should have recused himself when she filed her motion to recuse on June 19, 2003, and in her fourth issue, she contends that the assigned judge should have granted her June 2003 motion.

Rule 18a of the rules of civil procedure governs the recusal or disqualification of judges. A trial court may raise the issue of recusal on its own motion, Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 88 (Tex.App.-El Paso 2005, no pet.), or a party may file a motion at least ten days before the date of trial or a hearing stating grounds for the trial judge’s recusal. Tex.R. Civ. P. 18a(a). The judge shall then either recuse himself or refer the matter to the presiding judge of the administrative judicial district, who should either consider the motion or assign another judge to hear the motion. Tex.R. Civ. P. 18a(c), (d). Grounds for recusal of a trial judge include that “he or a lawyer with whom he previously practiced law has been a material witness” in the case. Tex.R. Civ. P. 18b(2)(c).

We review a trial court’s decision on a motion to recuse for an abuse of discretion. McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The erroneous denial of a motion to recuse does not void or nullify the court’s later rulings.

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Cite This Page — Counsel Stack

Bluebook (online)
241 S.W.3d 707, 2007 Tex. App. LEXIS 9725, 2007 WL 4354425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackwell-v-humble-texapp-2007.