in the Interest of B.P.R. & G.D.R.

• Court: Court of Appeals of Texas
• Decided: October 16, 2014
• Docket: 09-12-00575-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00575-CV ____________________

IN THE INTEREST OF B.P.R. & G.D.R.

_______________________________________________________ ______________

On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 30274 ________________________________________________________ _____________

MEMORANDUM OPINION

This is an appeal from an order modifying the terms governing the parent-

child relationship between J.G.C. (Mother), R.R. (Father), and their children,

B.P.R. and G.D.R. 1 In the sole issue presented on appeal, Father argues the trial

court abused its discretion by ordering him to reimburse Mother’s mileage

expenses if the parents exchanged the children at a location designated by the trial

court’s order. The location identified for the exchange is approximately midway

1 To protect the privacy of the parties involved in this appeal, we identify them by their respective initials. See Tex. Fam. Code Ann. § 109.002(d) (West 2014). 1 between the cities where the parents reside. We conclude that the evidence before

the trial court failed to demonstrate that it was fair and equitable to order Father to

reimburse Mother for her mileage expenses that resulted from Mother’s decision to

move. Without legally sufficient evidence to establish that imposing Mother’s

increased expenses on Father was fair and equitable, we hold the trial court abused

its discretion by requiring that Father reimburse Mother her mileage.

Background

In April 2011, Mother filed a petition seeking to modify an existing order

governing the parent-child relationship between Mother and Father. 2 In her third-

amended petition, her live pleading with respect to the order now at issue, Mother

asked for several modifications to the existing order. In a counterpetition, Father

agreed the circumstances leading to the rendition of the existing order had

materially changed; he also suggested the existing order should be modified, but he

requested modifications different from those requested by Mother.

Most of the parties’ disputes were resolved by a jury, but the remaining

issues were resolved at a bench trial, conducted in October 2012. The issues

resolved during the October 2012 bench trial include the reimbursement issue now 2 The previous order that controlled the parent-child relationship between the parties, which Mother alleged was rendered on April 30, 2010, is not in the record before us. The record also does not reflect when the parties first became involved in a suit affecting their relationship with their children. 2 on appeal. Based on the jury’s findings, and the issues decided by the trial court in

October, the trial court rendered a modified order3 that allows the children to reside

anywhere in Texas and designates Mother as the party with the right to designate

the children’s primary residence. The modified order also requires the children to

be surrendered and returned at a designated location, approximately midway

between the cities where the parents now live. Under the terms of the modified

order, unless Father chooses to take and return the children to Mother at her

residence, Father must pay Mother a specified mileage reimbursement when he

picks up or delivers the children to the designated location.

Father filed a timely notice of appeal from the trial court’s ruling on the

reimbursement issue. Unlike a notice of appeal that indicates an appellant desires

to appeal all issues, Father’s notice is limited because it states that he desires to

appeal from the order because it required that he “reimburse [Mother’s] mileage at

the government rate for pickup and delivery of the children[]” as “calculated from

the residence of [Mother] to the designated halfway place, billed to [Father], and

paid monthly.” Father’s notice of appeal also indicates that he desired to appeal

from the order’s requirement giving him “the option to pick up and return the

children at the residence of [Mother] to avoid paying mileage.” 3 The modified order is dated October 25, 2012, and it is the order that is the subject of the present appeal. 3 Father raises the same issues in his brief that he identified in his notice of

appeal. According to Father, the law and evidence does not support the trial court’s

decision requiring him to reimburse Mother for her mileage. In support of his

appeal, Father filed the reporter’s record from the bench trial held in October 2012,

the proceeding in which the trial court decided that Father should reimburse

Mother for her mileage. Father did not file any other reporter’s records that may

have been made at the other evidentiary hearings occurring before October 2012,

as the issues resolved in those hearings apparently did not directly involve the

mileage issue. Additionally, other than the issues that are identified in Father’s

notice of appeal, Father did not file a separate statement of the points or issues to

be presented on appeal. See Tex. R. App. P. 34.6(c)(1) (explaining the effect on

appellate issues of filing a partial reporter’s record).

After the parties filed their briefs, we inquired whether Father intended to

file an appeal based on a partial record, and we asked if Mother had been given

adequate notice that Father was pursuing an appeal on limited issues. We did so to

allow Mother the opportunity to designate any additional records that she felt were

necessary if we were to decide that the appeal should be treated as an appeal under

Texas Rule of Appellate Procedure 34.6. See id. 34.6(c)(2) (allowing the other

party to a limited appeal the opportunity to “designate additional exhibits and

4 portions of the testimony to be included in the reporter’s record”). In response to

our inquiry, Father asserted that by designating the issues on which he desired to

appeal in his notice of appeal, he had perfected a limited appeal under Rule

34.6(c)(1) of the Texas Rules of Appellate Procedure. In her response, Mother

asserted that Father failed to file a formal statement of points or issues: she

concludes that he failed to comply with the requirements of Rule 34.6(c). Mother’s

response notes that a complete failure to comply with Rule 34.6’s requirements

requires an appellate court to affirm the trial court’s ruling. See Bennett v.

Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (stating that failure to file statement of

points required appellate court to presume record’s omitted portions supported the

trial court’s judgment).

Limited Appeal

Rule 34.6 of the Texas Rules of Appellate Procedure allows parties to pursue

appeals using a partial reporter’s record of the proceedings from the trial court.

Tex. R. App. P. 34.6(c)(1). When parties have based their appeal on a partial

reporter’s record, as allowed by Rule 34.6(c), appellate courts presume the “partial

reporter’s record designated by the parties constitutes the entire record for purposes

of reviewing the stated points or issues.” Tex. R. App. P. 34.6(c)(4). In cases

involving limited appeals under Rule 34.6, appeals courts are to presume that all

5 the reporter’s record necessary for the resolution of the issues the appellant

identified in its statement of points or issues are before the appeals court, “even if

the statement includes a point or issue complaining of the legal or factual

insufficiency of the evidence to support a specific factual finding identified in that

point or issue.” Id. When the party pursing the appeal files a statement of points or

issues to be presented in the appeal, a document that is supposed to be filed when

the appellant requests a partial reporter’s record, Rule 34.6(c) allows any other

party to the appeal to “designate additional exhibits and portions of the testimony

to be included in the reporter’s record.” Tex. R. App. P. 34.6(c)(2).

Although Rule 34.6(c)(1) states the appellant is to include in its request for a

partial reporter’s record a statement of the points or issues, the Texas Supreme

Court has not required strict compliance with that part of the rule. Bennett, 96

S.W.3d at 229. In adopting a flexible approach, the Bennett Court indicated that the

statement of points or issues need not be included in the request for the reporter’s

record unless the circumstances indicated that the appellee had been prejudiced by

the appellant’s tardiness. Id. In Bennett, the Supreme Court noted that the appellee

did not claim that the delay resulting from the appellant’s failure to strictly comply

with Rule 34.6(c) prevented him from identifying the relevant issues,

supplementing the reporter’s record, or adequately preparing his arguments. Id. at

6 229-30 (concluding that statement of issues filed two months late was sufficient to

limit appeal to partial reporter’s record when appellee had more than two months

after receiving notice of the issues to file his brief and did not contend that he was

prejudiced by the tardiness).

Since the Texas Supreme Court decided Bennett, other intermediate courts

have concluded that notices of appeal identifying the specific issues being appealed

comply with Rule 34.6(c), which governs appeals that utilize a partial reporter’s

record. See Brawley v. Huddleston, No. 02-11-00358-CV, 2012 Tex. App. LEXIS

10058, at **4-6 (Tex. App.—Fort Worth 2012, no pet.); Melton v. Toomey, 350

S.W.3d 235, 237 (Tex. App.—San Antonio 2011, no pet.).

In this appeal, in response to our question whether the appeal should be

treated as an appeal on a partial record, Mother indicated that “no additional record

is necessary or exists on the mileage reimbursement issue other than what was

previously provided.” Moreover, Mother has not argued that she was prejudiced by

whatever ambiguity Father injected into the proceedings by not strictly complying

with the requirement that he include a statement of points or issues in his request

for the partial reporter’s record. Here, the sole issue Father sought to appeal is

identified by Father’s notice of appeal. The issue that Father identified in his notice

was not enlarged upon in his brief, which he filed approximately six months after

7 Mother had notice of the issue he intended to appeal. Mother had an opportunity to

designate additional portions of the reporter’s record before we resolved the issue

Father presented, but she declined to do so. In these circumstances, and in light of

Bennett, we are required to overlook Father’s failure to file a statement of points or

issues and treat his notice of appeal as the document stating the points on which he

appealed. Because we conclude that the appeal should be processed as an appeal

on a partial reporter’s record, we are also required to presume that the partial

reporter’s record “constitutes the entire record for purposes of reviewing” Father’s

issue. See Tex. R. App. P. 34.6(c)(4); see also Bennett, 96 S.W.3d at 229-30;

Brawley, 2012 Tex. App. LEXIS 10058, at **5-6.

Mileage Reimbursement

In his brief, Father argues that the trial court’s decision regarding the

mileage reimbursement was arbitrary because it was not fair and equitable.

According to Father, the record indicates that Mother should pay her own mileage

because she was the one who decided to move. Father also asserts Mother failed to

plead a claim asking to be reimbursed for her mileage.

Mother asserts that Father failed to preserve his sufficiency argument for our

review on appeal. Mother notes that Father never advised the trial court of his

8 objection to reimbursing her for her mileage when the case was before the trial

court.

While Father did not file a motion or object when the trial court announced

that it was going to require that he reimburse Mother her mileage, he was not

required to do so to preserve a legal or factual insufficiency complaint for review

on appeal following a bench trial. See Tex. R. App. P. 33.1(d). However, by

participating in the hearing addressing the reimbursement claim without objection,

Father did waive his complaint that Mother had failed to plead her claim that she

be reimbursed for her mileage. See Tex. R. App. P. 33.1(a); see also Case Corp. v.

Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005,

pet. denied) (holding that understood matters considered and ruled upon by the trial

court without complaint can be deemed tried by consent).

Father also asserts that Mother’s failure to plead the claim makes the

judgment void. We disagree. If a decree contains an erroneous property division, it

may be voidable, but it is not void when the trial court has jurisdiction over the

subject matter and the parties. See Seabron v. Seabron, No. 04-12-00482-CV, 2013

WL 4685440, at *3 (Tex. App.—San Antonio Aug. 30, 2013, pet. denied) (mem.

op.) (citing Hagen v. Hagen, 282 S.W.3d 899, 907 (Tex. 2009)); see also Mapco,

Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (explaining difference between

9 void and voidable judgments). Father does not assert that the trial court did not

have jurisdiction over him or that it did not have jurisdiction over the subject

matter—the modification of an order in a suit affecting his relationship with his

children. In such proceedings, trial courts are authorized to render awards when

expenses have increased because of a change in residence. See Tex. Fam. Code

Ann. § 156.103(a) (West 2014). Although an order imposing such an award may

be challenged for error on appeal, the order is not void if the trial court has

jurisdiction over the parties; therefore, the rules require that most errors be pointed

out to the trial court to preserve the right to have the complaint reviewed on appeal.

See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011) (noting

voidable trial court actions must be timely raised to avoid waiver); David v. Crist

Indus., Inc., 98 S.W.3d 338, 342 (Tex. App.—Fort Worth 2003, pet. denied) (“If . .

. the complaint is that the judge acted in a case without statutory or procedural

authority, the alleged error is not void, but voidable, and must therefore be raised

by objection or complaint to be preserved for appellate review.”).

The issue Father raises in his appeal was also not waived by his failure to

make the trial court aware of the legal and factual sufficiency issue raised in

Father’s brief. In a nonjury case, a party need not formally object to the trial

10 court’s ruling regarding complaints that concern legal or factual sufficiency to have

those complaints reviewed on appeal. Tex. R. App. P. 33.1(d).

We review Father’s complaint that the evidence does not support the trial

court’s award on the reimbursement issue using an abuse of discretion standard. In

re S.N.Z., 421 S.W.3d 899, 908 (Tex. App.—Dallas 2014, pet. denied). A trial

court’s findings are reviewable for legal and factual sufficiency under the same

standards used to review claims alleging the evidence is insufficient to support a

jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Moroch v.

Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). “[I]n family

law cases, the abuse of discretion standard of review overlaps with the traditional

sufficiency standard of review; as a result, legal and factual insufficiency are not

independent grounds of reversible error, but instead constitute factors relevant to

our assessment of whether the trial court abused its discretion.” Moroch, 174

S.W.3d at 857; see also Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort

Worth 2004, no pet.). “In determining whether a trial [court] abused [its] discretion

because the evidence is insufficient to support the decision, we first look to

whether the [court] had sufficient evidence upon which to exercise [its] discretion

and then look to whether the [court] erred in [its] application of that discretion.” In

re S.N.Z., 421 S.W.3d at 908.

11 We apply the appropriate sufficiency standards to Father’s issue. Id.; Boyd,

131 S.W.3d at 611. We must then determine whether, based on the evidence

presented at trial, the trial court made a reasonable decision. Moroch, 174 S.W.3d

at 857. To uphold the trial court’s order, after reviewing the evidence before the

trial court, the evidence must show that the trial court’s decision was neither

arbitrary nor unreasonable. Id. In a legal sufficiency review, appeals courts

consider the evidence in the light most favorable to the court’s order and indulge

every reasonable inference supporting the order. See City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005). A trial court does not abuse its discretion if some

evidence of a substantial and probative character exists to support the decision. In

re S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied).

The partial record before us indicates that Mother decided to move to the

Dallas area, while Father maintained his same residence. The partial record does

not show any other evidence explaining why Mother decided to move. The partial

reporter’s record also reflects that the trial court heard no evidence during the

October hearing regarding the financial circumstances of either Mother or Father.

The Family Code provision addressing modifying an existing order because

of a change of residence provides:

(a) If a change of residence results in increased expenses for a party having possession of or access to a child, the court may render 12 appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expenses and the best interest of the child.

(b) The payment of increased expenses by the party whose residence is changed is rebuttably presumed to be in the best interest of the child.

(c) The court may render an order without regard to whether another change in the terms and conditions for the possession of or access to the child is made.

Tex. Fam. Code Ann. § 156.103 (West 2014). Thus, section 156.103(b) creates a

rebuttable presumption that the child’s best interest is served by imposing the

increased expenses on the party who moved. The partial reporter’s record before us

contains no evidence rebutting the statutory presumption. Therefore, there is no

evidence of a substantial and probative character to support the trial court’s

decision that the statutory presumption in section 156.103(b) should not be applied.

See In re S.N.Z., 421 S.W.3d at 908; Moroch, 174 S.W.3d at 857. We sustain

Father’s sole issue.

When reversing a trial court’s decision, we are required to render the

judgment the trial court should have rendered. Tex. R. App. P. 43.3. Because no

evidence supported the decision, we delete sections 1(g)(2) and 1(g)(3) on page 14

of the “Order in suit to Modify Parent-Child Relationship,” dated October 25,

2012. In all other respects, the trial court’s order is affirmed.

13 AFFIRMED AS MODIFIED.

_________________________ HOLLIS HORTON Justice

Submitted on March 4, 2014 Opinion Delivered October 16, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.