In Re Mas

222 S.W.3d 854, 2007 WL 1139634
CourtCourt of Appeals of Texas
DecidedMay 30, 2007
Docket05-05-01081-CV
StatusPublished

This text of 222 S.W.3d 854 (In Re Mas) 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
In Re Mas, 222 S.W.3d 854, 2007 WL 1139634 (Tex. Ct. App. 2007).

Opinion

222 S.W.3d 854 (2007)

In the Interest of M.A.S.

No. 05-05-01081-CV.

Court of Appeals of Texas, Dallas.

April 18, 2007.
Rehearing Overruled May 30, 2007.

*857 Barbara A. Dakin, Frisco, for appellant.

Jerry Sanger, Oklahoma, OK, for appellee.

Before Justices WRIGHT, O'NEILL, and LANG.

OPINION

Opinion by Justice WRIGHT.

In this child custody case, Mother appeals from a judgment awarding sole conservatorship of her son to Father. Mother also appeals from a sanctions award. In twelve issues, Mother contends generally: (1) the trial court erred in instructing the jury; (2) the evidence is legally and factually insufficient to support modification of the child custody order; (3) the trial court erred in not filing findings of fact and conclusions of law; (4) the trial court erred in ruling on evidence; (5) the trial court abused its discretion in limiting Mother's case-in-chief; (6) the trial court erred in entering the sanctions order following the expiration of its plenary power; (7) the evidence is legally and factually insufficient to support the award of attorney's fees as sanctions; and (8) the evidence is legally and factually insufficient to support the trial court's finding that Mother is a vexatious litigant. We sustain Mother's *858 sixth issue to the extent that we modify the possession order in two respects. As modified, we affirm the trial court's modification order. With respect to the sanctions order, we sustain Mother's tenth issue and reverse the trial court's sanctions order as void.

Background

Mother and Father had one son born on July 7, 1992. In 1994, Mother and Father divorced and Mother was awarded sole conservatorship of the child. On August 16, 2004, Father filed a petition to modify the parent-child relationship. He sought to be appointed sole managing conservator of the child. Father lives in Oklahoma and Mother lives in Texas.

The case proceeded to trial before a jury. Father presented several witnesses. Michael Navarro, a psychotherapist, testified that he had seven sessions with the child in Oklahoma. Father brought the child for counseling to help him. At their first session, the child asked how he could escape from his Mother's home. The child stated that his Mother told him that she wished she had aborted him. Mother had been physically abusive to the child as well. She had punched him in the stomach and thrown a bookshelf at him. At nearly every session, the child stated that he wanted to live with his Father. Navarro testified that the child appears to be truthful. Navarro testified that the child had a good relationship with Steven, Father's first son from a previous marriage. Navarro did state that the child loved his Mother and that he tried to protect her.

Kristi Sanger testified that she had been married to Father since 1997 and that they had a three-year-old son named Jason. The child gets along well with Jason. He stated that the child sometimes cries after speaking on the phone with his Mother. She testified that Mother had refused to allow Father access to the child. Sanger testified that she and Father could provide a stable home for the child.

Records from the Frisco Police Department were admitted into evidence. The records detail numerous calls to Mother's home. In one incident, the child reported that his Mother picked up a bookshelf and said, "I will kill you with this if you don't go to your room." The child got scared and ran into his Mother's home office where she picked up a paperweight and said, "I'll bash your head in with this if you do not go to your room." The child also stated in the report that in the past, his Mother had made similar threats toward him while holding a knife in her hands.

Frisco Police Officer Brandon Adams testified that he was called to Mother's home on August 9, 2004 to take a runaway report. Mother and child had an argument about him wanting to quit band. She did not want him to quit because she had just purchased an instrument for him. Frisco Police Officer Joshua Storm testified that he picked the child up at a neighbor's house on August 10, 2004 and took him into custody. The child stated that his Father was coming to get him. His Father came to the police station. However, the child was released to his Mother. Storm testified that the Father seemed concerned about the child's well-being and that it appeared the child wanted to go with his Father.

Officer Adams was called to the house again on September 17, 2004 after receiving a welfare call from Father. Father was at the airport in Oklahoma City to pick up the child and he was not there. Father was unable to reach the child on his cell phone.

Terry Lynn Pogue, Jr. is the assistant principal at Clark Middle School in Frisco. The child had recently been suspended from school because he had threatened to stab another student. The child admitted *859 to his actions. Pogue believes the child tells the truth. Pogue testified that Father had called the school on several occasions to see how the child was doing. Father always behaved appropriately in his contacts with the school. Mother's contacts with the school, on the other hand, were more contentious. Mother had a conversation with one of the child's teachers and upset the teacher so much that she cried. After that incident, Mother had to go through the principal's office when she wanted to speak with any of the child's teachers. Mother also got upset when Father picked up the child early from football practice with the coach's approval. She came to the school with the police.

Debra Moore, Father's neighbor for three and one-half years, testified that Father is very calm and patient. She testified that the child has a good relationship with his half-siblings.

Father testified that he had purchased at least twelve airplane tickets for the child and Mother failed to put him on the plane. He testified that communication with Mother is very difficult. Mother had clawed Father's neck and thrown things at him. Father believed the child when he told him that Mother was abusive. Father testified that Mother's animosity toward him had increased along with her attempts to limit his access to the child. Following the conclusion of Father's testimony, he rested his case.

Mother, a lawyer licensed to practice law in Oklahoma, represented herself at trial. She testified on her own behalf and did not present any other witnesses. She denied ever hurting the child. She said Father constantly threatens her with legal action. Mother contends Father discussed the custody litigation with the child and that he extended the child's summer visitation without agreement. She testified that several times the child returned with injuries from visitation with his Father. She testified that Father is disrespectful in his communications with her.

Mother also testified that the child is involved in church, school, and sports activities and that he wanted to continue in those activities. The child loves animals and he has several pets. She provides him with a nice home. She said that the child is happy living with her.

Jury Charge

In her first issue, Mother contends the trial court misapplied the family code resulting in the infringement of her fundamental right of conservatorship. At trial, Mother and Father both objected to the original charge. Father objected on the grounds that the statute required the jury to find, in addition to best interest of the child, that either a substantial change in circumstances had occurred or,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Willis v. Donnelly
199 S.W.3d 262 (Texas Supreme Court, 2006)
Pickens v. Pickens
62 S.W.3d 212 (Court of Appeals of Texas, 2001)
Cameron v. Cameron
158 S.W.3d 680 (Court of Appeals of Texas, 2005)
Huey v. Huey
200 S.W.3d 851 (Court of Appeals of Texas, 2006)
Seidel v. Seidel
10 S.W.3d 365 (Court of Appeals of Texas, 1999)
Worford v. Stamper
801 S.W.2d 108 (Texas Supreme Court, 1991)
Scott & White Memorial Hospital v. Schexnider
940 S.W.2d 594 (Texas Supreme Court, 1996)
Dunn v. Dunn
177 S.W.3d 393 (Court of Appeals of Texas, 2005)
Deltuva v. Deltuva
113 S.W.3d 882 (Court of Appeals of Texas, 2003)
City of Keller v. Wilson
168 S.W.3d 802 (Texas Supreme Court, 2005)
Jobe v. Lapidus
874 S.W.2d 764 (Court of Appeals of Texas, 1994)
Owens-Corning Fiberglas Corp. v. Malone
972 S.W.2d 35 (Texas Supreme Court, 1998)
Owens-Corning Fiberglas Corp. v. Malone
916 S.W.2d 551 (Court of Appeals of Texas, 1996)
In the Interest of E.A.C.
162 S.W.3d 438 (Court of Appeals of Texas, 2005)
In the Interest of M.A.S.
222 S.W.3d 854 (Court of Appeals of Texas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
222 S.W.3d 854, 2007 WL 1139634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mas-texapp-2007.