in the Interest of B.G and A.G

• Court: Court of Appeals of Texas
• Decided: June 13, 2006
• Docket: 14-04-00944-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 13, 2006

Affirmed and Memorandum Opinion filed June 13, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00944-CV

IN THE INTEREST OF B.G AND A.G

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 99‑57667

M E M O R A N D U M  O P I N I O N

In this suit to modify the parent-child relationship, appellant, Garrett Gadd (AGarrett@), appeals from an order modifying conservatorship of his minor children, modifying  the terms of his possession and access, and enjoining him from certain acts.  We affirm.^[1]

I.  Background

Garrett and appellee, Nicole Gadd (ANicole@), were previously divorced and appointed joint managing conservators of their two children.  Subsequently, Nicole filed a motion to modify conservatorship and the terms of Garrett=s possession and access.  As a result of two initial hearings in October 2003, the trial court entered two temporary orders^[2] including an order  requiring that Garrett submit to a psychological examination, both parties submit to drug testing, and Garrett=s visitation be supervised temporarily through the S.A.F.E. Program.^[3]  Garrett did not submit to the psychological examination or the drug testing.

In August 2004, the trial court resumed the hearing on the motion to modify.  As a result of that hearing, the trial court signed an AOrder in Suit To Modify Parent-Child Relationship@ on September 27, 2004.  The trial court removed Garrett and Nicole as joint managing conservators, appointed Nicole as sole managing conservator, and appointed Garrett as possessory conservator.  The trial court also ordered that Garrett=s visitation be supervised through the S.A.F.E. Program.  Finally, the trial court included an injunction prohibiting Garrett from engaging in the following acts:

(1)       Disturbing the peace of the children or of any other party.

(2)       Removing the children beyond the jurisdiction of the Court, acting directly or in concert with others.

(3)       Withdrawing the children from enrollment in the school or day-care facility where the children are presently enrolled.                  

(4)       Hiding or secreting the children from [Nicole] or changing the children=s current abode at the residence of [Nicole].

(5)       Making disparaging remarks regarding [Nicole or Nicole=s family] in the presence or within the hearing of the children.             

(6)       Using illegal drugs or consuming alcohol within 12 hours before or during the period of possession of or access to the children.

II.  Discussion

Preliminarily, we note that Garrett, who has appeared pro se in the trial court and on appeal, presents complaints that are somewhat confusing and makes some arguments that are nonsensical and wholly unrelated to the issues in this case.^[4]  Nonetheless, we discern the following complaints presented for appellate review: (1) the temporary order requiring a psychological examination and drug testing did not comply with Texas Rule of Civil Procedure 204.1(d); (2) the permanent injunction incorporated into the modification order does not comply with Texas Rule of Civil Procedure 683; and (3) the modification of conservatorship and the terms of Garrett=s possession and access violates the United States Constitution, federal law, and the trial court=s oath of office.

A.        Temporary Order for Psychological Examination and Drug Testing

First, Garrett contends that the written temporary order requiring a psychological examination and drug testing did not comply with Texas Rule of Civil Procedure 204.1(d).  Rule 204.1(d) provides that an order compelling a party to submit to a physical or mental examination Amust specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.@  Tex. R. Civ. P. 204.1(d).  However, the written temporary order is not part of the appellate record.  With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292 (Tex. App.C Houston [14th Dist.] 2002, no pet.).  The trial court clerk was not required to include the temporary order in the record absent a designation by the parties because it is not the order being appealed.^[5]  See Tex. R. App. P. 34.5(a)(5).  There is no indication that Garrett designated the temporary order as an additional item to be included in the clerk=s record.  See Tex. R. App. P. 34.5(a)(13); Tex. R. App. P. 34.5(b).  Although Garrett attaches the purported temporary order as an appendix to his appellate brief, the attachment of a document as an appendix to a brief is not formal inclusion in the record on appeal.  Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.CHouston [14th Dist.] 2003, no pet.); Nguyen, 93 S.W.3d at 293.  Therefore, we may not consider whether the temporary order complied with Rule 204.1(d).  Accordingly, we overrule Garrett=s first issue.

B.        Injunction

In his second issue, Garrett contends that the Apermanent injunction@ incorporated into the modification order is void because it does not Aset forth the reasons for its issuance@ as required by Rule 683 of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 683 (providing that, among other requirements, every order granting an injunction Ashall set forth the reasons for its issuance@).

Initially, we point out that the injunction is effectively permanent although it states that Garrett is Atemporarily enjoined@ from the listed actions.  See Elizondo v. Williams, 643 S.W.2d 765, 767 (Tex. App.CSan Antonio 1982, no writ) (recognizing that characterization of an injunction as temporary or permanent depends on its characteristics and function); see also Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992) (recognizing nature of order depends on its characteristics and functionCnot its form).  The injunction is part of the final modification order.  Thus, it is not a temporary order intended to protect the children before entry of a final modification order.  See Tex. Fam. Code Ann. ' 105.001 (Vernon Supp. 2005) (authorizing trial court to make ATemporary Orders Before Final Order,@ including temporary injunction, for the safety and welfare of the children); Tex. Fam. Code Ann. ' 156.006 (Vernon Supp. 2005) (authorizing such a temporary order in a modification suit); Elizondo, 643 S.W.2d at 767 (stating that purpose of temporary injunction is preservation of the status quo pending trial on the merits).  Moreover, there is no indication that the injunction was of limited duration, there were any matters left to be resolved, or the trial court contemplated any further hearing.  See Elizondo, 643 S.W.2d at 767 (recognizing that permanent injunction is not dependent upon any future action by the court and grants all relief which the court intends to grant).  Consequently, the injunction is permanent despite the use of the term Atemporarily.@  See Brines v. McIlhaney, 596 S.W.2d 519, 522B24 (Tex. 1980) (orig. proceeding) (finding conservatorship provisions in final divorce decree were final although labeled Atemporary@ because all controverted matters were resolved and nothing indicated a further hearing was contemplated).

The Texas Family Code does not expressly address permanent injunctions in suits affecting the parent-child relationship.  See Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.CDallas 2005, pet. denied).  Thus, we look to the rules applicable to permanent injunctions in general civil cases.  See Tex. Fam. Code Ann. ' 105.003(a) (Vernon 2002) (stating that, unless expressly provided otherwise, proceedings in suits affecting the parent-child relationship Ashall be as in civil cases generally.@); In re E.A.C., 162 S.W.3d 438, 442 (Tex. App.CDallas 2005, no pet.) (recognizing Family Code makes clear that, unless expressly provided otherwise, suits affecting the parent‑child relationship are governed by the same rules of procedure applicable to general civil cases).^[6]

In general civil cases, several Texas courts, including this court, have held Rule 683=s requirement that an injunction state Athe reasons for its issuance@ applies only to an ancillary, temporary injunction and not to a permanent injunction.  See Cook=s Bryan, Inc. v. State, 459 S.W.2d 682, 688 (Tex. Civ. App.CHouston [14th Dist.] 1970, writ ref=d n.r.e.); see also Qaddura v. Indo‑European Foods, Inc., 141 S.W.3d 882, 891B92 (Tex. App.CDallas 2004, pet. denied); Shields v. State, 27 S.W.3d 267, 273 (Tex. App.CAustin 2000, no pet.); Carrell v. Richie, 697 S.W.2d 43, 46 (Tex. App.CAustin 1985, writ ref=d n.r.e.); Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 534 (Tex. App.CFort Worth 1983, no writ).  Therefore, we reject Garrett=s challenge to the injunction incorporated into the final modification order and overrule his second issue.

C.        Modification Order

In his third issue, Garrett generally contends that the modification order violates the United States Constitution, federal law, and the trial court=s oath to uphold the Constitution and federal law.  Garrett=s contentions are unclear, but he apparently complains that the order violates his rights to equal protection and due process and constitutes cruel and unusual punishment because he has been denied the right to raise his children and denied  Aunrestricted access@ to the children.  However, he has waived these complaints because he failed to raise them in the trial court.

To preserve a complaint for appellate review, a party must present the complaint to the trial court by a timely request, objection, or motion.  Tex. R. App. P. 33.1(a).  Even constitutional complaints, including due-process and equal-protection challenges, may be waived by failure to object at trial.  See Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 404B05 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Magnuson v. Mullen, 65 S.W.3d 815, 829 (Tex. App.CFort Worth 2002, pet. denied); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).  At the modification hearings, Garrett did not argue or object that modification of conservatorship and the terms of his possession and access would violate his constitutional rights, federal law, or the trial court=s oath.  Moreover, he did not file any motions raising these complaints or otherwise bring them to the trial court=s attention.  Accordingly, he has waived these complaints, and we overrule his third issue.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed June 13, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

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^[1]  Garrett has also filed a APetition for Judicial Notice by Declaration@ requesting that we take judicial notice of the laws of various other jurisdictions.  We ordered this petition submitted with the case. Upon the motion of a party, we are required to take judicial notice of the laws of other jurisdictions.  See Tex. R. Evid. 202.  Therefore, we grant Garrett=s petition as required; however, our granting the petition is immaterial because we will dispose of Garrett=s complaints under Texas law.

^[2]  The trial court=s temporary orders are not included in the appellate record; however, the trial court=s remarks at the hearings and its findings of fact and conclusions of law after entry of the modification order reflect the nature of the temporary orders.

^[3]  Although the S.A.F.E. Program is not outlined in the Family Code, the program apparently is designed to facilitate and/or conduct supervised parental visitation.

^[4]  For instance, Garrett spends at least twenty pages of his reply brief citing numerous authorities, such as Abraham Lincoln=s executive orders, the AWar Powers@ act, Cicero, NASA regulations, AOffice of Management and Budget@ regulations, and Oklahoma criminal law, purportedly showing the trial court had no jurisdiction because Garrett=s name was spelled in all capital letters in the pleadings.  In the trial court, Garrett devoted much time to this argument and other unrelated arguments, although the trial court urged him to address the issues concerning the children.

^[5]  In his notice of appeal, Garrett appeals only from the modification order.  In fact, his reason for challenging the temporary order is unclear although he suggests the modification order was improperly based on his earlier failure to comply with the temporary order.

^[6]  The Family Code does effectively exempt a temporary injunction entered for the safety and welfare of the children in a suit affecting the parent-child relationship from the requirement that a temporary injunction state the reasons for its issuance.  See Tex. Fam. Code Ann. ' 105.001(b)(1) (stating that such a temporary injunction Aneed not . . . define the injury or state why it is irreparable.@); State v. Cook United, Inc., 464 S.W.2d 105, 106 (Tex. 1971) (holding that to comply with Rule 683, a temporary injunction in a general civil case must Agive the reasons why injury will be suffered if the interlocutory relief is not ordered@).