in the Interest of A.F.S., A.F.S., and A.F.S., Children

• Court: Court of Appeals of Texas
• Decided: July 17, 2018
• Docket: 05-16-01123-CV
• Status: Published

Opinion

Affirmed and Opinion Filed July 17, 2018

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01123-CV

IN THE INTEREST OF A.F.S., A.F.S., AND A.F.S., CHILDREN

On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-15-22319

MEMORANDUM OPINION Before Justices Bridges, Myers, and Schenck Opinion by Justice Bridges Muhammad Fiyaz Sabir appeals from the trial court’s final decree of divorce. In two

issues, Sabir argues the trial court erred in limiting his conservatorship, visitation, and custody and

denying his motion for a continuance before the trial setting. We affirm the trial court’s judgment.

In December 2015, Sabir filed an original petition for divorce from his wife, Riffat Razaq

Raja, seeking, among other things, that he and Raja be appointed joint managing conservators of

the children. In January 2016, Raja filed a counterpetition for divorce seeking to have herself

appointed sole managing conservator of the children. On June 24, 2016, the trial court entered a

final decree of divorce appointing Raja sole managing conservator of the couple’s three children

and appointing Sabir possessory conservator. On September 19, 2016, Sabir filed his notice of

appeal.

On October 25, 2016, the Clerk of this Court notified the parties that the reporter’s record

was overdue and directed the court reporter to file the record within thirty days. On October 26, 2016, the court reporter notified the Clerk of this Court that counsel for Sabir had not contacted

her to request a reporter’s record, and no payment arrangements had been made. That same day,

the Clerk of this Court notified Sabir of the court reporter’s correspondence and directed Sabir to

provide within ten days (1) notice that he had requested preparation of the reporter’s record and

(2) written verification that he had paid or made arrangements to pay the reporter’s fee or written

documentation that he had been found to be entitled to proceed without payment of costs. The

notice warned Sabir that, if the Court did not receive the required documentation within the time

specified, the case could be submitted without the reporter’s record.

By order dated December 16, 2016, this Court notified Sabir that this case would be

submitted without the reporter’s record because Sabir failed to comply with the Court’s October

26, 2016 directive to file written verification he had requested the reporter’s record and either made

arrangements to pay the reporter’s fee or had been found entitled to proceed without payment of

costs. Because the clerk’s record had been filed, Sabir was further ordered to file his brief on the

merits no later than January 16, 2017.

On February 23, 2017, a memorandum opinion issued dismissing Sabir’s appeal. The

opinion noted that Sabir failed to file a brief by January 16, 2017, and Sabir was notified by

postcard dated January 18, 2017, that failure to file his brief within ten days would result in the

dismissal of his appeal. The opinion stated that, as of the date of the opinion, Sabir had not filed

his brief or otherwise corresponded with this Court regarding the status of his appeal.

On March 2, 2017, Sabir filed a motion to reinstate his appeal and a motion to extend the

time for filing a brief. By order dated March 16, 2017, this Court reinstated Sabir’s appeal and

ordered Sabir to file a brief by April 13, 2017. On April 13, 2017, Sabir filed his brief. By

correspondence dated April 24, 2017, the Clerk of this Court notified Sabir that his brief did not

satisfy the requirements of rule 38 of the rules of appellate procedure in that it (1) did not contain

–2– a concise statement of the facts supported by record references, (2) presented argument that did

not contain appropriate citation to authorities or the record, and (3) did not contain a proper

certificate of compliance. The notice advised appellant that failure to file an amended brief within

ten days could result in the dismissal of his appeal.

Appellant’s brief raises two issues: whether the trial court erred in limiting his

conservatorship, visitation, and custody and denying his motion for a continuance before the trial

setting. When, as in this case, there is no reporter’s record and findings of fact and conclusions of

law are neither requested nor filed, the judgment of the trial court implies all necessary findings of

fact to sustain its judgment. Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.—Dallas

2008, no pet.); Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006,

pet. denied). In other words, we must presume the missing reporter’s record supports the decisions

of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex.2002) (stating that the “court

of appeals was correct in holding that, absent a complete record on appeal, it must presume the

omitted items supported the trial court’s judgment.”). Similarly, statements in a brief that are

unsupported by the record cannot be accepted as facts by an appellate court. Bard v. Frank B. Hall

& Co., 767 S.W.2d 839, 845 (Tex. App.—San Antonio 1989, writ denied).

Because there is no reporter’s record, we must presume the missing record supports the

trial court’s decisions regarding conservatorship, visitation, and custody. See Bennett, 96 S.W.3d

at 230; Waltenburg, 270 S.W.3d at 312. Moreover, in the absence of a reporter’s record, we cannot

review any evidence that might have been presented at a hearing related to Sabir’s continuance

motion. We must presume that the evidence supported the trial judge’s denial of Sabir’s motion

for continuance. See Green v. Kaposta, 152 S.W.3d 839, 842 (Tex. App. —Dallas 2005, no pet.).

We overrule Sabir’s first and second issues.

–3– We affirm the trial court’s judgment.

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

161123F.P05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF A.F.S., A.F.S., On Appeal from the 255th Judicial District AND A.F.S., CHILDREN Court, Dallas County, Texas Trial Court Cause No. DF-15-22319. No. 05-16-01123-CV Opinion delivered by Justice Bridges. Justices Myers and Schenck participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Riffat Razaq Raja recover her costs of this appeal from appellant Muhammad Fiyaz Sabir.

Judgment entered July 17, 2018.

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