Rachael Sarah Ruiz v. Larry Dell Norris

Opinion

NUMBER 13-17-00032-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RACHAEL SARAH RUIZ, Appellant,

v.

LARRY DELL NORRIS, Appellee.

On appeal from the 261st District Court of Travis County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Contreras

Appellant Rachael Sarah Ruiz, pro se, appeals the trial court’s final decree of

divorce by seven issues. We affirm.1

1 This appeal was transferred to this Court from the Third Court of Appeals in Austin pursuant to a

docket equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.). I. BACKGROUND

The following background information is taken from the pleadings, the divorce

decree, and a statement of facts attached to Ruiz’s pro se brief. Ruiz was married to

Kevin Hunter in 2007, and a divorce was granted in 2011 “pending property and final

decree.” In 2013, Ruiz gave birth to a daughter, A.V.R. She and A.V.R.’s father, appellee

Larry Dell Norris, were married in August of 2015, and Norris filed for divorce in the 261st

District Court of Travis County four months later. Ruiz, who was represented by counsel

at the time, filed an answer generally denying the allegations in the divorce petition.

According to Ruiz, she and Norris entered into an agreement in 2014 under which

she would be sole managing conservator of A.V.R. and Norris would have visitation rights.

She asserts that the Office of the Attorney General “began enforcement proceedings” in

Williamson County, which she claims became the court of continuing jurisdiction under

the family code. She acknowledges that, after the divorce petition was filed, allegations

of her “being mentally ill, suicidal and unstable began to surface.” However, she claims

that these allegations “originally stem from [Norris] being cruel, deceitful and malicious”

toward her. She asserts that “[a]ll allegations in the pleadings were baseless [and] without

any supporting facts or outright fabrications” as part of a “systematic scheme” by Norris,

his counsel, “and currently unknown co-conspirators and agencies.”

Ruiz alleges in her brief that an associate judge appointed a guardian ad litem to

determine “if any of [Norris]’s accusations were substantiated”; that she petitioned for a

de novo appeal to the district court; and that, during a hearing in the district court on

March 23, 2016, Norris “was unable to validate any of [his] claims” and “all other

accusations were disproved.” Nevertheless, the trial court ordered psychological testing,

which Ruiz claims “confirmed [she] had zero mental health issues.” 2 A final decree of divorce was rendered on December 13, 2016 stating that, though

Ruiz was duly notified of trial, she failed to appear and defaulted. The decree provided,

among other things, that Norris shall be the child’s sole managing conservator with the

exclusive right to designate her primary residence without geographical restriction. The

decree designated Ruiz as possessory conservator, but stated that there was credible

evidence that the limitation of Ruiz’s rights and duties as a parent would be in A.V.R.’s

best interest. Therefore, the decree provided that Ruiz’s access to or possession of the

child “is not appropriate or in the best interest of the child . . . at this time.” The decree

also ordered Ruiz to pay to Norris $212.22 per month in child support, $60 per month for

the child’s health insurance, and $13,000 for Norris’s attorney’s fees. This appeal

followed.2

II. DISCUSSION

At the outset, we note that the Texas Rules of Appellate Procedure require an

appellant’s brief to contain “a succinct, clear, and accurate statement of the arguments

made in the body of the brief” as well as “a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(h),

(i). Ruiz’s status as a pro se appellant does not relieve her from these requirements. See

Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (providing that pro se litigants are

held to the same standards as attorneys and must comply with the Texas Rules of

Appellate Procedure); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.

1978); Jarvis v. Feild, 327 S.W.3d 918, 925 (Tex. App.—Corpus Christi 2010, no pet.).

We will construe her brief liberally, see TEX. R. APP. P. 38.9, but we cannot make Ruiz’s

2 Norris has not filed a brief to assist us in the resolution of this appeal.

3 arguments for her, and we will not perform an independent review of the record and

applicable law to determine whether there was error. See Castro v. Ayala, 511 S.W.3d

42, 48 (Tex. App.—El Paso 2014, no pet.); Robertson v. Sw. Bell Yellow Pages, Inc., 190

S.W.3d 899, 903 (Tex. App.—Dallas 2006, no pet.); Plummer v. Reeves, 93 S.W.3d 930,

931 (Tex. App.—Amarillo 2003, pet. denied) (“[A]s judges, we are to be neutral and

unbiased adjudicators of the dispute before us. Our being placed in the position of

conducting research to find authority supporting legal propositions uttered by a litigant

when the litigant has opted not to search for same runs afoul of that ideal, however. Under

that circumstance, we are no longer unbiased, but rather become an advocate for the

party.”).

A. Prior Marriage

By her first issue, Ruiz contends that the divorce is “null and void” because her

earlier marriage was never legally dissolved. The issue is not supported by any coherent

argument, nor does it contain any references to authority or to the record. The issue is

therefore overruled as inadequately briefed. See TEX. R. APP. P. 38.1(i).

B. Spelling of Name

By her second issue, Ruiz appears to argue that the “interchangeable” spelling of

her given name, which appears variously as “Rachael” and “Rachel” throughout the

record, indicates that that she was not properly served with notice, resulting in a

“simulation of service/justice.” Ruiz appears to suggest that the trial court rendered an

order nunc pro tunc changing the spelling of her given name. The issue contains no

reference to authority or to the record, although there is a reference to a “Social Security

Number Verification” form which was attached as exhibit to the brief. We conclude that

the issue has been inadequately briefed, and we therefore overrule it. See id. 4 C. Paternity

By her third issue, Ruiz argues that A.V.R. “was not a child born of the marriage

yet the trial court failed to order DNA testing as required by law.” She notes: “In May of

2014, [Ruiz] was the Sole-Managing Conservator and only caretaker of the minor, AVR

pursuant to an agreed SAPCR Attorney General Custody and Support order signed on

May 30th 2014.” There is no reference to the record or to any authority. The issue is

overruled as inadequately briefed. See id.

D. Continuing Exclusive Jurisdiction

Ruiz contends by her fourth issue that the trial court “had a duty to enter no further

orders, except an order of dismissal until the bureau of vital statistics (BVS) was filed with

the court [sic]” pursuant to Texas Family Code chapter 155. Under that chapter, a court

acquires “continuing, exclusive jurisdiction” over certain matters in connection with a child

“on the rendition of a final order.” TEX. FAM. CODE ANN. § 155.001(a) (West, Westlaw

through 2017 1st C.S.). In general, if a Texas court has acquired continuing, exclusive

jurisdiction with regard to a child, no other Texas court has jurisdiction over a suit with

regard to that child. Id. § 155.001(c).

The vital statistics unit of the Texas Department of State Health Services must,

upon the written request of the court or a party, identify the court that last had continuing,

exclusive jurisdiction over a child or state that the child has not been the subject of a suit.

Id. § 155.101(b) (West, Westlaw through 2017 1st C.S.). “If a court in which a suit is filed

determines that another court has continuing, exclusive jurisdiction of the child, the court

in which the suit is filed shall dismiss the suit without prejudice.” Id. § 155.102 (West,

Westlaw through 2017 1st C.S.). But, on the filing of a motion showing that a divorce

petition been filed in another court and requesting a transfer to that court, the court having 5 continuing, exclusive jurisdiction over a child of the marriage must transfer the

proceedings to the court in which the divorce is pending. Id. § 155.201(a) (West, Westlaw

through 2017 1st C.S.).

Ruiz appears to assert that the 395th District Court in Williamson County had

continuing, exclusive jurisdiction over A.V.R. due to a prior child support enforcement

proceeding brought in that court. However, Norris’s divorce petition specifically alleged

that no other court had continuing jurisdiction over A.V.R., and Ruiz’s answer did not

specifically refute that allegation. See id. § 155.101(a) (providing that the petitioner or the

court “shall request” from the vital statistics unit identification of the court that last had

continuing, exclusive jurisdiction of the child in a suit “unless . . . the petition alleges that

no court has continuing, exclusive jurisdiction of the child and the issue is not disputed by

the pleadings”). In any event, the trial court stated at the divorce trial that the child support

enforcement proceedings had been transferred to the 261st District Court pursuant to the

family code. See id. § 155.201(a). For the foregoing reasons, we overrule Ruiz’s fourth

issue.

E. De Novo Hearing

Ruiz’s fifth issue concerns a de novo hearing that was held before the district judge

on March 22, 2016, following the rendition of temporary orders by an associate judge on

February 22, 2016. See id. § 201.001–.320 (West, Westlaw through 2017 1st C.S.)

(authorizing the appointment of an associate judge in suits affecting the parent-child

relationship). Ruiz appears to contend that she was “deprived . . . of her right to an

attorney” at the hearing and that the referring court “heard an appeal” rather than a “de

novo hearing” as provided by law. She contends that her retained counsel did not appear

at the hearing because counsel had to attend a trial in another county. The only 6 references to authority made in Ruiz’s argument are to family code section 201.105,

which allows for a de novo hearing before a referring court after an associate judge issues

a report, and Texas Rules of Appellate Procedure 26 and 27, regarding the time for

perfecting an appeal to a court of appeals. See id. § 201.015; see also TEX. R. APP. P.

26, 27. No references to the record are made. Without more, we cannot conclude that

the issue has merit. Therefore, it is overruled.

F. Conservatorship

By her sixth issue, Ruiz argues that the trial court erred in naming Norris as

A.V.R.’s sole managing conservator. She contends without reference to the record that

“it is constitutionally invalid for [Norris] to be sole managing conservator with a conviction

of domestic violence” and there was “no evidence of specific acts or omissions from which

the court could have logically inferred that [Ruiz] is presently unfit to be a managing

conservator.” She cites family code section 153.131, which provides that “[i]t is a

rebuttable presumption that the appointment of the parents of a child as joint managing

conservators is in the best interest of the child.” TEX. FAM. CODE ANN. § 153.131(b) (West,

Westlaw through 2017 1st C.S.). Ruiz does not reference the record or cite authority

establishing the appropriate standard of review.3 Nevertheless, in our sole discretion and

out of an abundance of caution, we will address her sixth issue.

The primary consideration in determining issues of conservatorship and

possession of and access to a child is always the child’s best interest. Id. § 153.002

3 As part of her sixth issue, Ruiz cites authority showing that there is a “strong presumption that the best interest of the child is served if a natural parent is awarded custody,” In re R.D.Y., 51 S.W.3d 314, 320 (Tex. App.—Houston [1st Dist.] 2001, pet. denied), and that to obtain custody, a non-parent “must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally.” Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). But Ruiz directs us to nothing in the record indicating that Norris is a non-parent.

7 (West, Westlaw through 2017 1st C.S.); In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2008).

Generally, the trial court has wide latitude in determining the best interest of a minor child,

and its judgment will not be disturbed on appeal unless the record as a whole shows that

the trial court abused its discretion. In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.—Fort

Worth 2000, no pet.). To determine whether a trial court abused its discretion, we must

decide whether the trial court was arbitrary or unreasonable, or made without reference

to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985). Merely because a trial court may decide a matter within its discretion

in a different manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id. An abuse of discretion will not

be found if some evidence of substantive and probative character exists to support the

ruling. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

The divorce decree stated that there was “credible evidence” that the “limitation”

of Ruiz’s parental rights and duties is in A.V.R.’s best interest, and that a standard

possession order “is not appropriate . . . at this time.” The decree specifically referenced

the recommendation of the guardian ad litem and Norris’s testimony. The guardian ad

litem, Leslie Massad, stated at a hearing on October 20, 2016 that Ruiz had made

accusations of sexual abuse against Norris that were deemed to be unfounded, and Ruiz

had kept the child beyond the visitation times prescribed by the court. Norris testified that

Ruiz kept the child for a period beginning on October 3, 2016, in violation of the court’s

order. He conceded that he also once kept A.V.R. beyond the period prescribed by court

order “because I had just got her back from a two and a half week period where [Ruiz]

kept her.” Norris stated that Ruiz has sent him emails discussing suicide and that he is

“very much” concerned about Ruiz’s mental health. He asked the court to order “strict” 8 supervised visitation for Ruiz. Following the hearing, the trial court denied the request for

supervised visitation and instead ordered unsupervised visitation to continue as

previously ordered.

One week later, on October 27, 2016, another hearing was held at which Norris’s

counsel represented that Ruiz “immediately violated” the visitation order and “has

retained possession of the child in violation of that order ever since.” Massad testified

that she is concerned about Ruiz’s mental state and does not believe Ruiz is “thinking

clearly.” Massad stated she continues to recommend supervised visitation because “[i]t

seems that every time [Ruiz] gets the child she doesn’t return the child.” At the conclusion

of this hearing, the trial court ordered that Ruiz is prohibited from possessing the child

“unless supervised.” At that point, Ruiz stated that she would voluntarily relinquish her

parental rights and that she would not pick up the child according to the new visitation

order.4

On December 12, 2016, the court called the case for trial and noted that Ruiz failed

to appear. Massad testified that Ruiz previously indicated an intent not to appear at trial,

but that she recently received a call from Ruiz asking if she could appear at the trial by

phone. The court noted that Ruiz advised the court’s staff that she was not going to

appear at the trial. The court further noted that Ruiz had filed a motion to continue on

December 7, 2016 based on a medical emergency, but the motion was denied because

Ruiz had not provided supporting documentation.

In his trial testimony, Norris agreed with his counsel that Ruiz “lacks the ability to

make appropriate decisions” regarding parental rights and duties. He stated Ruiz has

4 No affidavit of relinquishment of parental rights appears in the record. See TEX. FAM. CODE ANN.

§ 161.103 (West, Westlaw through 2017 1st C.S.).

9 emailed, texted, and called him “many times” in violation of the court’s orders; that she

has threatened him; and that she owes him $3,500 in previously-ordered child support.

Norris stated he believes it is in A.V.R.’s best interest for him to be her sole managing

conservator and for Ruiz to be granted no visitation, noting that he is concerned about

Ruiz’s mental stability and about A.V.R.’s safety in Ruiz’s presence. Norris stated that

Ruiz has threatened to kill or hurt herself on multiple past occasions, and that her “mental

status” has worsened over the course of the case. He stated he wants to continue

A.V.R.’s relationship with her maternal grandparents.

Massad also testified she has concerns about Ruiz’s mental health and her ability

to make appropriate decisions regarding the child. Massad stated she does not believe,

based on Ruiz’s prior behavior, that Ruiz had the ability to comply with court orders.

Massad agreed that, in the past, Ruiz had removed the child from daycare and not

returned the child to Norris or the daycare; that she “refuses” to follow court orders; and

that she has “has moved around” but at times has refused to inform the court about her

whereabouts. Like Norris, Massad testified that Ruiz’s mental health declined

significantly in the month prior to trial. Massad stated that Ruiz “has been given every

opportunity to see her child and have reasonable visitation, and she has squandered

every opportunity.” She recommended that Ruiz have no visitation with the child until

further order of the court.

Considering all of the above-referenced testimony and evidence, we conclude that

the trial court did not abuse its discretion by designating Norris as A.V.R.’s sole managing

conservator and by ordering no visitation for Ruiz. In particular, the substantive and

probative evidence supported the trial court’s implicit finding that the presumption under

family code section 153.131(b) had been effectively rebutted and that the specified 10 arrangements were in the A.V.R.’s best interest. See TEX. FAM. CODE ANN. § 153.131(b).

We overrule Ruiz’s sixth issue.

G. Temporary Order

Finally, Ruiz contends by a multifarious final issue that a temporary injunction order

was void because it did not set a bond. She cites case law stating that temporary orders

filed without a bond are void and that reviewing courts should set void judgments aside.

See LaGoye v. Victoria Wood Condo. Ass’n, 112 S.W.3d 777, 785 (Tex. App.—Houston

[14th Dist.] 2003, no pet.); Chambers v. Rosenberg, 916 S.W.2d 633, 635 (Tex. App.—

Austin 1996, writ denied). Ruiz does not provide an accurate record citation to any

injunction order which she claims is void. In any event, the family code provides that a

temporary order in a suit affecting the parent-child relationship need not set a bond. TEX.

FAM. CODE ANN. § 105.001(d) (West, Westlaw through 2017 1st C.S. (“In a suit, the court

may dispense with the necessity of a bond in connection with temporary orders on behalf

of the child.”). We overrule Ruiz’s final issue.

III. CONCLUSION

Having overruled Ruiz’s issues, we affirm the judgment of the trial court. All

pending motions are denied as moot.

DORI CONTRERAS Justice

Delivered and filed the 15th day of November, 2018.