in the Matter of the Marriage of Rebecca Ann Stivers and Eddie Lacy Stivers

• Court: Court of Appeals of Texas
• Decided: October 17, 2018
• Docket: 10-17-00271-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00271-CV

IN THE MATTER OF THE MARRIAGE OF REBECCA ANN STIVERS AND EDDIE LACY STIVERS

From the 249th District Court Somervell County, Texas Trial Court No. D05251

MEMORANDUM OPINION

In ten issues, appellant, Eddie Lacy Stivers, complains about the final decree

entered by the trial court in his divorce from appellee, Rebecca Ann Stivers.1 Because we

overrule all of appellant’s issues, we affirm the judgment of the trial court.

I. BACKGROUND

On December 21, 2015, appellee filed a pro se original petition for divorce from

appellant, who is currently incarcerated in the Institutional Division of the Texas

Department of Criminal Justice. According to the decree, appellant is serving two eighty-

1 Both appellant and appellee have filed pro se briefs in this matter. five-year sentences for “Aggravated Theft of Property $200,000 or More, and Fraudulent

Sale of Securities Over $100,000, respectively” and a twenty-year sentence for

“Fraudulent Sale of Securities $10,000-$100,000.” After a hearing in which appellant

participated telephonically, the trial court granted appellee’s request for divorce and

entered a final decree. It is from this final divorce decree that appellant appeals.

II. APPELLANT’S ISSUES

At the outset, we note that, although appellant alleges ten issues in his pro se

appellant’s brief, he did not organize the argument section of his brief by issue. Rather,

he combined all of his issues into a few lengthy paragraphs under the generic

subheading, “BRIEF IN SUPPORT OF GROUNDS FOR REVIEW.” With that in mind,

we will endeavor to address each of appellant’s issues to the extent that we can ascertain

appellant’s arguments.

In his first two issues, appellant appears to complain that he received improper

notice of the hearing and, thus, was deprived of his right to a trial by jury. In making

these arguments, appellant does not cite to any relevant authority in support of his

contention, other than a generic reference to the Seventh Amendment of the United States

Constitution. See U.S. CONST. amend. VIII. Arguably, this issue is inadequately briefed.

See TEX. R. APP. P. 38.1(i).

However, even if appellant had adequately briefed this issue, a review of the

record demonstrates that his complaints in these two issues lack merit. Specifically, the

In the Matter of the Marriage of Stivers Page 2 record includes an affidavit of service executed by Tina Peters, who indicated that she

personally served a true copy of the citation with original petition for divorce on

appellant at the Lon Evans Correction Center, 600 W. Weatherford St., Fort Worth,

Tarrant County, Texas, 76102. Additionally, the record also includes a signed order

setting a hearing on the divorce petition for July 26, 2017, at 1:30 p.m. in the 249th District

Court, Somervell County, Texas. In this order, the trial court requested that appellant

“be made available to appear by phone from the Alfred Hughes Unit in Gatesville by

telephone.”2 Appellant responded to this notice by filing a pro se motion for temporary

injunction and motion for continuance. He also participated in the final hearing via

teleconference. Accordingly, based on the foregoing record evidence, we cannot say that

appellant failed to receive notice of either the divorce petition or the hearing on the

petition. See TEX. R. CIV. P. 21; see also Mathis v. Lockwood, 166 S.W.3d 743, 746 (Tex. 2005)

(per curiam) (noting that due process of law requires notice in accordance with the Texas

Rules of Civil Procedure); Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763

(Tex. App.—Dallas 2004, pet. denied) (stating that Texas Rule of Civil Procedure 21

governs notice of trial settings).

2 This order was filed in the Somervell County District Clerk’s Office on July 5, 2017. The order also indicates that it was signed by the trial judge on June 15, 2016. We believe this to be a scrivener’s error and that the order should reflect that it was signed on June 15, 2017. Nevertheless, appellant filed his responsive motion on July 24, 2017, which negates any argument of lack of notice of the hearing.

In the Matter of the Marriage of Stivers Page 3 Additionally, the record does not reflect that appellant ever made a written jury

request in this matter. See TEX. R. CIV. P. 216(a) (“No jury trial shall be had in any civil

suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable

time before the date set for trial of the cause on the non-jury docket, but not less than

thirty days in advance.”). As such, appellant waived his right to a trial by jury in this

matter by failing to file a written jury request. See id. We overrule appellant’s first two

issues.

In his third issue, appellant complains that he was denied a fair trial due to a

purportedly inaudible teleconference. Once again, besides his complaint, appellant does

not cite to any authority supporting his contention. Therefore, we conclude that this issue

is also inadequately briefed. See TEX. R. APP. P. 38.1(i). However, even if this issue was

adequately briefed, a review of the record indicates that appellant actively participated

in the complained-of hearing and that responses were repeated on the few occasions

where appellant contended that he could not hear. See Boddle v. Connecticut, 401 U.S. 371,

377, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113 (1971) (“[D]ue process requires, at a minimum,

that absent a countervailing state interest of overriding significance, persons forced to

settle their claims of right and duty through the judicial process must be given a

meaningful opportunity to be heard.”); see also In re D.W., 498 S.W.3d 100, 112 (Tex.

App.—Houston [1st Dist.] 2016, no pet.). In sum, there is nothing in the record

demonstrating that appellant’s participation in the trial via teleconference somehow

In the Matter of the Marriage of Stivers Page 4 denied him a meaningful opportunity to be heard so as to deprive him of his right to a

fair trial. Accordingly, we overrule appellant’s third issue.

In his fourth and fifth issues, appellant complains about the provisions of the

divorce decree pertaining to visitation and communication with the couple’s three

children. Appellant argues that the restrictions on his visitation and communication with

his children are tantamount to a termination of his parental rights.

“With regard to issues of custody, control, possession, child support, and

visitation, we give the trial court wide latitude and will reverse the trial court’s order only

if it appears from the record as a whole that the trial court abused its discretion.” Garza

v. Garza, 217 S.W.3d 538, 551 (Tex. App.—San Antonio 2006, no pet.) (citing In re J.R.D.,

169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied)). “Because the trial court is

faced with the parties and their witnesses and observes their demeanor, it is in a better

position to evaluate what will be in the best interest of the children.” Id. at 551-52. A trial

court abuses its discretion when it acts “without reference to any guiding rules or

principles,” or stated another way, when it acts in an arbitrary and unreasonable manner.

City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003). The trial

court is the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and its findings will not be disturbed if there is evidence of probative force to

support them. London v. London, 192 S.W.3d 6, 14 (Tex. App.—Houston [14th Dist.] 2005,

pet. denied).

In the Matter of the Marriage of Stivers Page 5 “[W]hen a trial court appoints a parent possessory conservator, it can conclude

that unrestricted possession would endanger the physical or emotional welfare of the

child, but that restricted possession or access would not.” In re Walters, 39 S.W.3d 280,

286 (Tex. App.—Texarkana 2001, no pet.). “The court can also conclude that access would

not endanger the physical or emotional welfare of the child, but that access is not in the

best interest of the child.” Id. (citing Hopkins v. Hopkins, 853 S.W.2d 134, 137-38 (Tex.

App.—Corpus Christi 1993, no writ)). The limitations on a parent’s right to possession

of or access to the child “may not exceed those that are required to protect the best interest

of the child.” TEX. FAM. CODE ANN. § 153.193 (West 2014). Thus, an order in which the

court completely denies access to the child requires the trial court to find that denial of

access is in the best interest of the child. See id.

Uncontroverted testimony that visiting a parent in prison is not in the child’s best

interest is sufficient to support a trial court’s finding that a prohibition on visitation in

prison is in the best interest of the child. See, e.g., In re I.C.N., No. 11-13-00105-CV, 2014

Tex. App. LEXIS 6120, at *5 (Tex. App.—Eastland June 5, 2014, no pet.) (mem. op.) (citing

In re T.R.D., No. 03-09-00150-CV, 2010 Tex. App. LEXIS 4581, at *11 (Tex. App.—Austin

June 18, 2010, no pet.) (mem. op.)). In T.R.D., the child’s mother was in prison, and her

parents sought custody of the child. 2010 Tex. App. LEXIS 4581, at *1. The grandfather

testified at trial that he believed visitation was unworkable and not in the child’s best

interest and that the child’s counselor recommended that the child not visit his mother in

In the Matter of the Marriage of Stivers Page 6 prison. Id. at *4. The mother failed to contest this testimony or show that a prohibition

on visitation was not in the best interest of the child. Id. at *10. The Austin Court of

Appeals noted that, while “confinement to prison is not alone sufficient to prohibit

visitation,” uncontroverted evidence that visitation was not in the best interest of the

child was sufficient to support a prohibition on visitation. Id. at *11.

Factors that may be considered in deciding what is in the best interest of the

children include:

(1) The desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may indicate that the existing parent- child relationship is not proper, and (9) any excuse for the acts or omissions of the parent.

In re A.C.S., 157 S.W.3d 9, 24 (Tex. App.—Waco 2004, no pet.) (citing Holley v. Adams, 544

S.W.2d 367, 371-72 (Tex. 1976); In re C.R.O., 96 S.W.3d 442, 451 (Tex. App.—Amarillo 2002,

pet. denied); Bates v. Tesar, 81 S.W.3d 411, 434 (Tex. App.—El Paso 2002, no pet.)). These

factors are not exhaustive, but simply indicate factors that have been or could be

pertinent. See Holley, 544 S.W.2d at 371-72; see also Smith v. Dep’t of Family & Protective

Servs., No. 01-07-00648-CV, 2008 Tex. App. LEXIS 4568, at *22 (Tex. App.—Houston [1st

Dist.] June 19, 2008, no pet.) (mem. op.) (“We note absence of evidence regarding some

of the Holley factors is not determinative.”).

In the Matter of the Marriage of Stivers Page 7 In the divorce decree, the trial court ordered that appellant shall have e-mail and

telephonic access to the children as follows:

i. The children shall be allowed to communicate via e-mail with Eddie Lacy Stivers at their convenience. Petitioner is ORDERED to assist the children in setting-up an e-mail account;

ii. Eddie Lacy Stivers shall be allowed to communicate with the children via cellular telephone each Sunday at 6:00 p.m. Eddie Lasy [sic] Stivers shall initiate the telephone call;

iii. The cellular telephone the children shall solely use for communication shall be provided to the children by Eddie Lacy Stivers, at his sole cost and expense, which telephone shall also have data service available for the children to use as the sole means of sending e-mails to Eddie Lacy Stivers;

iv. Eddie Lacy Stivers shall have his brother, Richard Wall, mail the cellular telephone to Rebecca Ann Stivers . . .; and

v. Eddie Lacy Stivers shall not contact the children via the cellular telephone provided to the children except as set forth herein.

The divorce decree also afforded appellant the right to mail letters and cards to the

children and for the children to mail cards and letters to him.

At the hearing, appellee testified that it was a hardship for her to transport the

children to visit appellant on any certain weekend because she works weekends to

support the children. She also testified that, although she used to take the children to see

appellant on a regular basis, she no longer believes it is in the best interest of the children

to have physical contact with appellant. Appellee also noted that the children do not

want to go to the prison to see appellant and that the children do not wish to write

In the Matter of the Marriage of Stivers Page 8 appellant. According to appellee, the children have said “no, we don’t—we don’t want

to. He chose money over us, and he loves money more than he loves us. That is their

feelings.”

Appellant elicited testimony from appellee that he was a good father

“[s]ometimes, when you wanted to be.” Appellee also admitted that appellant would

sometimes take the children to pitching lessons and that he would throw elaborate

birthday parties. However, he offered no evidence that the contact he currently seeks

with his children is in the best interest of the children. In other words, appellant did not

proffer controverting evidence that visiting him in prison or expanding his access to the

children while he is in prison is in the children’s best interest. Furthermore, it is

noteworthy that the e-mail and cellular telephone access contained in the divorce decree

was appellant’s idea, and the amicus attorney representing the children agreed that this

type of access to the children was a good idea. We therefore conclude that appellant has

failed to demonstrate that the trial court abused its discretion in determining appellant’s

visitation and access to the children. See Garza, 217 S.W.3d at 551; In re J.R.D., 169 S.W.3d

at 743; see also In re I.C.N., 2014 Tex. App. LEXIS 6120, at *5; In re T.R.D., 2010 Tex. App.

LEXIS 4581, at *11.

Appellant also contends that the trial court’s decision regarding visitation and

access violates his constitutional rights and is tantamount to a termination of his parental

rights to his children. A parent’s rights to the companionship, care, custody, and

In the Matter of the Marriage of Stivers Page 9 management of his or her children are constitutional interests deemed far more precious

than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71

L. Ed. 2d 599 (1982); In re M.S., 115 S.W.3d 534, 537 (Tex. 2003). However, parental rights

are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The emotional and physical

interests of the child must not be sacrificed to preserve the parent-child relationship. Id.

Here, the trial court did not sever the legal parent-child relationship between

appellant and his children. And although appellant alleges that his children have not

visited him in years, the trial court did not bar him from communicating with his children

using other forms. Furthermore, the trial court’s decision to name appellant possessory

conservator allows for the possibility of modification of visitation and access if

circumstances change. See TEX. FAM. CODE ANN. § 156.001 (West 2014). The trial court

considered all of the evidence before it and the various interests at stake, and struck this

balance in favor of the children’s best interests. Based on our review of the record, we

cannot say that appellant has presented error warranting reversal. We overrule

appellant’s fourth and fifth issues.

In his sixth issue, appellant contends that the trial court erred by never considering

alternative dispute resolution or marriage counseling to effectuate the reconciliation of

the couple for the benefit of the children. In his brief, appellant does not cite any authority

in support of this issue. Additionally, besides listing this issue in his “Issues Presented”

section, appellant dedicates one phrase to this issue in his argument section. As such, we

In the Matter of the Marriage of Stivers Page 10 cannot conclude that this issue has been adequately briefed. See TEX. R. APP. P. 38.1(i).

We overrule appellant’s sixth issue.

In his seventh issue, appellant argues that the trial court erred in denying his

motions for continuance, for counseling, to appear in person, and to list and inventory

personal and accumulated property and assets. Other than listing this issue in the “Issues

Presented” section and briefly mentioning it in the “Statement of Facts” section of his

brief, appellant does not argue this issue in the argument section of his brief, much less

cite to any authority to support his position. Accordingly, we conclude that this issue is

inadequately briefed. See id.

In his eighth issue, appellant asserts that the trial court was biased against him

because his involuntary incarceration was repeatedly referenced during the hearing.

Also, in his ninth issue, appellant complains that the amicus attorney’s references to his

involuntary incarceration and prison sentence were irrelevant, prejudicial, and improper.

Like before, appellant only lists these issues in the “Issues Presented” section of his brief

and briefly mentions them in his “Statement of Facts.” He does not argue these issues in

the argument section of his brief, nor does he cite any authority in support of these issues.

We therefore conclude that these issues are inadequately briefed. See id.

And finally, in his tenth issue, appellant complains that the trial court ignored his

motion for new trial. This issue lacks merit because Texas Rule of Civil Procedure 329b(c)

provides that a motion for new trial is deemed overruled by operation of law if it is “not

In the Matter of the Marriage of Stivers Page 11 determined by written order signed within seventy-five days after the judgment was

signed.” See TEX. R. CIV. P. 329b(c). Therefore, contrary to his assertion, appellant’s

motion for new trial was overruled by operation of law pursuant to Texas Rule of Civil

Procedure 329b(c). See id. Accordingly, we overrule appellant’s tenth issue.

III. CONCLUSION

Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring with a note)* Affirmed Opinion delivered and filed October 17, 2018 [CV06]

*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial court’s judgment. A separate opinion will not issue.)

In the Matter of the Marriage of Stivers Page 12