in the Interest of D.F.D. and T.Z.D., Children

• Court: Court of Appeals of Texas
• Decided: July 19, 2022
• Docket: 05-20-00428-CV
• Status: Published

Opinion

Affirm and Opinion Filed July 19, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00428-CV

IN THE INTEREST OF D.F.D. AND T.Z.D., CHILDREN

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-19199

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Reichek Opinion by Justice Osborne Appellant Father and appellee Mother are the parents of D.F.D. and T.Z.D.

Father and Mother were married in 2016 and divorced in 2019. By order dated March

12, 2020, the trial court granted Mother’s motion for enforcement of Father’s child

support obligation included in the parties’ divorce decree. The trial court also found

Father in criminal and civil contempt and assessed a fine and confinement in county

jail. Father appeals, alleging in six issues that the trial court lacked jurisdiction and

abused its discretion. We affirm the trial court’s order.

BACKGROUND

Under the parties’ final divorce decree, the trial court ordered Father to pay

child support commencing on September 1, 2019. In relevant part, the decree requires Father to pay $1,055.61 per month to Mother for the support of D.F.D. and

T.Z.D., due on the first day of each month. The decree also requires Father to pay

Mother $165.49 each month as additional child support for reimbursement of health

insurance premiums.

On January 8, 2020, Mother filed a motion for enforcement of the child

support order, alleging that after an initial, partial payment of $621.28, Father failed

to pay any amounts due under the decree. On the same day, the trial court signed an

order for Father to appear and respond to the motion at a hearing on February 6,

2020 at 9:00 a.m.

When Father did not appear at the February 6 hearing, the trial court signed

an order for capias and setting bond. Father appeared before the court on February

17, 2020, and was ordered to return for a hearing on Mother’s motion on March 12,

2020. Father complied, and the trial court heard Mother’s motion on March 12, 2020.

The trial court granted Mother’s motion by order of the same date. This appeal

followed. Father, Mother, and the Office of the Attorney General of Texas (“OAG”)

have filed briefs.

ISSUES

Appearing pro se, Father asserts six issues. We quote the issues as stated in

Father’s brief:

ISSUE 1: The lower trial court abused its discretion of TEX. R. CIV. P. 18a.

–2– ISSUE 2: Father did not waive his personal jurisdiction issue when he was forced by threat to make an appearance against his will in the case. ISSUE 3: The Attorney General of Texas response letter to the Hon. James White and the Department of Justice letter is contrary to his actions and the actions of the title IV agency. ISSUE 4: The Appellee and the Court failed to prove its jurisdiction/authority and failed to state a claim. The appellee[e] claims to be an interested party because the “Mother” signed over her rights.

ISSUE 5: The arguments inside the scope of the court reporter’s record/transcript and the production of the court reporter’s transcript presented by Glinda Finkely [Court] Reporter’s errors and Intentional fraud/forgery (March 12, 2020) under the direction of Judge David A. Lopez.

ISSUE 6: The Appellee’s arguments are vague and non specific to case law presented as they don’t apply the “Father.”

DISCUSSION

We first address Father’s contention that because he is representing himself

pro se, his “pleadings are not to be held to the same high standards of perfection as

practicing lawyers.” Appellate procedure rule 38.9 provides that briefing rules must

be “construed liberally.” TEX. R. APP. P. 38.9; Amrhein v. Bollinger, 593 S.W.3d

398, 401 (Tex. App.—Dallas 2019, no pet.).

But “[t]he right of self-representation (or being what is commonly called a pro

se litigant) carries with it the responsibility to adhere to our rules of evidence and

procedure, including our appellate rules of procedure if the party chooses to

represent himself at the appeal level.” Bolling v. Farmers Branch Indep. Sch. Dist.,

315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). As we explained in

Amrhein, “[w]e may not apply different standards for litigants appearing without –3– advice of counsel.” Amrhein, 593 S.W.3d at 401. “Otherwise, pro se litigants would

be afforded an unfair advantage over those represented by counsel.” Id.

Consequently, Father “must properly present [his] case according to the rules of

appellate procedure,” id., and we construe his brief accordingly.

1. Recusal

Father first complains that the trial court failed to comply with civil procedure

rule 18a in response to the recusal motion Father filed on March 11, 2020, the day

before the scheduled hearing. As “grounds for recusal and disqualification,” Father

cited the trial court’s failure to “file its Foreign registration statements, Anti-bribery

statements and Oath of Office with the district clerks, OAG, and Secretary of State,”

and included more than twenty pages of argument which, even generously

construed, failed to identify any of the grounds for recusal under civil procedure rule

18b. See TEX. R. CIV. P. 18a(a)(2) (motion for recusal must assert one or more of

grounds listed in rule 18b); 18b(b) (listing grounds for recusal).

Mother and the OAG respond that Father’s motion was not timely under rule

18a(b)(1). See TEX. R. CIV. P. 18a(b) (time for filing motion to recuse). Father replies

that even if his motion was untimely under rule 18a(b)(1), rule 18a(f) required the

trial judge to respond within three business days. See TEX. R. CIV. P. 18a(f) (duties

of respondent judge).

The record reflects, however, that the motion to recuse was Father’s third in

this case, a “tertiary recusal motion” under civil practice and remedies code section

–4– 30.016. TEX. CIV. PRAC. & REM. CODE § 30.016(a) (“tertiary recusal motion” means

“a third or subsequent motion for recusal . . . filed against a district court or statutory

county court judge by the same party in a case”). Section 30.016(b) provides that the

trial judge “shall continue” to preside over the case, sign orders in the case, and

“move the case to final disposition as though a tertiary recusal motion had not been

filed.” TEX. CIV. PRAC. & REM. CODE § 30.016(b); Gonzalez v. Guilbot, 315 S.W.3d

533, 539–40 (Tex. 2010). Accordingly, despite Father’s motion, the trial judge

retained authority to act. See Gonzalez, 315 S.W.3d at 541. The denial of a tertiary

recusal motion is only reviewable on appeal from final judgment. TEX. CIV. PRAC.

& REM. CODE § 30.016(d).

We review the denial of a motion to recuse for abuse of discretion. TEX. R.

CIV. P. 18a(j)(1)(A); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas

2017, no pet.). “The movant bears the burden of proving recusal is warranted, and

the burden is met only through a showing of bias or impartiality to such an extent

that the movant was deprived of a fair trial.” Drake, 529 S.W.3d at 528. Rule 18b

provides in part that a judge must recuse in any proceeding in which (1) “the judge’s

impartiality might reasonably be questioned,” (2) “the judge has a personal bias or

prejudice concerning the subject matter or a party,” (3) the judge “has personal

knowledge of disputed evidentiary facts concerning the proceeding,” or (4) the judge

knows he has an “interest that could be substantially affected by the outcome of the

proceeding.” TEX. R. CIV. P. 18b(b)(1), (2), (3), (6). A motion “must not be based

–5– solely on the judge’s rulings in the case.” TEX. R. CIV. P. 18a(a)(3). The remedy for

unfair rulings is to assign error regarding the adverse rulings. Drake, 529 S.W.3d at

528.

As noted above, Father’s motion does not cite any of the rule 18b grounds for

recusal. Instead, in addition to challenging the trial judge’s failure to file “Foreign

registration statements” and other documents, Father asserts several arguments

regarding the trial court’s authority to act under the United States Constitution and

complains about lack of due process in this case. Because Father did not establish

any grounds for recusal, the trial court did not err by continuing to preside over the

case.1 We decide Father’s first issue against him. See id. at 529.

2. Personal jurisdiction

In his second issue, Father contends he “did not waive his personal jurisdiction

issue when he was forced by threat to make an appearance against his will in the

case.” He argues that the trial court’s issuance of a capias warrant for his arrest

violated the United States Constitution, and he contends he “never gave up personal

1 We note that even in the case of a tertiary recusal motion, where the trial court “shall continue” to preside over the case, sign orders in the case, and move the case to final disposition as though the motion had not been filed, the trial court is otherwise required to “comply with applicable rules of procedure for recusal.” TEX. CIV. PRAC. & REM. CODE § 30.016(b). Under rule 18a(f)(1), if the trial court does not sign and file an order of recusal, it must sign and file an order referring the motion to the regional presiding judge. TEX. R. CIV. P. 18a(f)(1). Here, however, the record reflects that the motion was filed in the late afternoon on the day before the hearing and was not mentioned or brought to the trial court’s attention at the hearing. Nor did Father notify the regional presiding judge, as rule 18a(f)(3) permits. TEX. R. CIV. P. 18a(f)(3). On this record, where Father did not establish any grounds for recusal and did not bring the matter to the trial court’s attention, we conclude Father did not preserve his complaint and any error did not “probably cause[ ] the rendition of an improper judgment.” See TEX. R. APP. P. 44.1, 33.1. –6– jurisdiction willingly” and “was held captive.” The OAG responds to Father’s

arguments regarding the capias, and Mother responds to Father’s arguments

regarding personal jurisdiction.

The OAG argues that the capias was issued in accordance with the family

code. See TEX. FAM. CODE § 157.066 (trial court may issue capias for arrest on

proper proof if respondent has been personally served but fails to appear). The trial

court signed an order for capias on February 6, 2020. The order recites that Father

did not appear at a hearing on Mother’s motion for enforcement on that date. The

court found that the matter was “duly and properly set for hearing,” and that Father

failed to appear after being “personally served with timely notice and an order to

appear.” The court ordered the clerk to issue a writ of capias “commanding th[e]

sheriff or peace officer to take the body of [Father] and bring him before this Court

to answer the allegations” of Mother’s motion. Father subsequently appeared before

the court, was ordered to return for the March 12, 2020 hearing, and attended and

participated in that hearing. Father complains only generally of being “forced by

threat” to appear. He does not complain of any specific violation of the family code’s

procedures, and the record does not reflect any. See TEX. FAM. CODE §§ 157.061–

157.115 (procedures for setting hearing on motion to enforce and failure to appear).

Mother argues the trial court had personal jurisdiction over Father. She argues

that Father was a party to the final decree of divorce rendered in the 303rd Judicial

District Court of Dallas County. The decree included an order for Father to pay child

–7– support. That court retained continuing exclusive jurisdiction of the children the

subject of the suit and matters affecting them under family code Title 5, which

includes child support. TEX. FAM. CODE ANN. §§ 155.001(a), 155.002, 155.003.

After the decree was signed, the case was transferred to the 256th Judicial District

Court of Dallas County. That court became “the court of continuing, exclusive

jurisdiction and all proceedings in the suit are continued as if it were brought there

originally.” TEX. FAM. CODE § 155.206(a) (Effect of Transfer). Consequently,

Mother’s motion for enforcement was filed in the court of continuing exclusive

jurisdiction over Father’s obligation to support D.F.D. and T.Z.D. Id.

We conclude the trial court had personal jurisdiction over Father. We decide

Father’s second issue against him.

3. Attorney general letter

Father’s third issue is a complaint that the OAG in this case has acted contrary

to a 2019 opinion letter issued by the Attorney General of Texas. See TEX. ATT’Y

GEN. OP. No. KP-0241 (2019) (regarding “standards courts apply when balancing

the rights of the State against the fundamental rights of parents to raise their children

free from government intrusion”).2 Father neither identifies an error made by the

trial court nor explains how he preserved his complaint about the error for appeal.

2 We note that the letter does not address child support.

–8– See TEX. R. APP. P. 33.1 (preservation of complaint for appeal). We decide Father’s

third issue against him.

4. Attorney General as party

In his fourth issue, Father complains of the OAG’s participation in this matter

without showing its authority under civil procedure rule 12. See TEX. R. CIV. P. 12

(Attorney to Show Authority). He also contends that because he has no “legal

contract” with either the OAG or Mother’s attorney, there is no basis for the trial

court’s award of attorney’s fees against him. As Mother argues, however, these

issues are addressed in the family code and are well-settled. See, e.g., TEX. FAM.

CODE §§ 157.167 (on finding that respondent has failed to make child support

payments, trial court shall order respondent to pay attorney’s fees in addition to

arrearages); 231.101 (Title IV-D agency [the OAG] may provide services including

enforcement of child support orders); 234.001 (OAG shall establish and operate state

case registry and state disbursement unit for child support). We decide Father’s

fourth issue against him.

5. Errors in reporter’s record

In his fifth issue, Father argues the court reporter’s record of the March 12,

2020 hearing contains “errors and Intentional fraud/forgery.” His complaints,

extending to more than fifty pages of his brief, fall into two categories:

(1) typographical errors or other non-substantive complaints, such as the incorrect

transcription of “imprisoned” as “in prison” and notations that witnesses were

–9– “sworn” instead of transcribing the actual oath given; and (2) substantive complaints

such as the failure of the trial judge to recuse himself and the constitutionality of

requiring a parent to pay child support.

To the extent any errors exist in the first category, they may be corrected in

the trial court in accordance with rule of appellate procedure 34.6(e). See TEX. R.

APP. P. 34.6(e) (Inaccuracies in the Reporter’s Record). Father, however, did not

invoke this procedure, and in any event, the errors he identifies in this category are

not probative on the issue before the trial court, that is, whether Father complied

with the trial court’s order to pay child support.

The second category of alleged errors—substantive legal complaints—must

have been preserved for review and briefed in accordance with the rules of appellate

procedure. See TEX. R. APP. P. 33.1 (preservation of complaint); 38.1(f) (requiring

concise statement of issues in appellant’s brief); 44.1 (reversible error). As we

explained in Bolling, we may not identify possible trial court error, search the record

for facts favorable to a party’s position, or conduct legal research to support a party’s

contentions. Bolling, 315 S.W.3d at 895. To the extent Father’s arguments were

properly presented and briefed in his other issues, we have addressed them. To the

extent they were not, we cannot consider them. See id. at 896. For these reasons, we

decide Father’s fifth issue against him.

–10– 6. Specificity of motion

In his sixth issue Father contends that “the Appellee’s arguments are vague

and non-specific to case law presented as they don’t apply [to] the Father.” This

issue does not identify any specific argument by either Mother or the OAG. Nor does

Father complain of any specific error by the trial court or explain how the complaint

was preserved. Consequently, the issue presents nothing for our review.

Accordingly, we decide Father’s sixth issue against him. See Bolling, 315 S.W.3d at

895–96.

CONCLUSION

We affirm the trial court’s March 12, 2020 order.

/Leslie Osborne// 200428f.p05 LESLIE OSBORNE JUSTICE

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF D.F.D. AND On Appeal from the 256th Judicial T.Z.D., CHILDREN District Court, Dallas County, Texas Trial Court Cause No. DF-18-19199. No. 05-20-00428-CV Opinion delivered by Justice Osborne. Justices Pedersen, III and Reichek participating.

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

It is ORDERED that appellees Tierrany Sepulveda Daniels and The Office of the Attorney General of Texas recover their costs of this appeal from appellant David Lee Daniels III.

Judgment entered this 19th day of July, 2022.

–12–