Rickey Fantroy, Sr. v. Carolyn Mae Howard Fantroy and in the Interest of R.F., a Child

• Court: Court of Appeals of Texas
• Decided: October 1, 2003
• Docket: 10-02-00008-CV
• Status: Published

Opinion

Rickey Fantroy v. Carolyn Fantroy

IN THE

TENTH COURT OF APPEALS

No. 10-02-008-CV

     RICKEY FANTROY, SR.,

                                                                              Appellant

     v.

     CAROLYN MAE HOWARD FANTROY,

                                                                              Appellee

AND IN THE INTEREST OF R.F., A CHILD

From the 18th District Court

Johnson County, Texas

Trial Court # D2001-05094

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Rickey Fantroy, acting pro se, appeals from a final divorce decree. He complains that:

      1.   Venue was proper in Dallas County, not Johnson County, and the trial court in Johnson County should have granted his motion to transfer venue.

      2.   A final divorce decree issued in Dallas County is the controlling decree, not the Johnson County decree.

      3.   The provision in the divorce decree concerning religious training of his child is unconstitutional.

      We will affirm.

Rickey’s Brief

      Rickey presents no authority in his brief to support his complaints, nor does he cite to the record. Also, he makes very little argument. The appellate rules require that “[t]he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authority and to the record.” Tex. R. App. P. 38.1(f), (h), 38.2(a)(1). Usually, by failing to cite to the record and to authorities, and to argue its issues, a party waives review of the issues. Fox v. Parker, 98 S.W.3d 713, 728 (Tex. App.—Waco 2003, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.—Amarillo 1998, no pet.); Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.—El Paso 1997, no writ). However, because the interests of a child are involved, we will review Rickey’s complaints.

Background

      Rickey and Carolyn Fantroy were married in 1997, and they are the parents of a child, R.F., born in 1998. They separated, and in January 2001 Carolyn filed an original petition for divorce in Johnson County. In February 2001, by counsel, Rickey filed an answer, a motion to transfer venue, and a plea in abatement. There was a hearing on the venue motion on February 23, but there is no written order in the record. In mid-February, again by the same counsel, Rickey filed an original petition for divorce in Dallas County. In that suit, Carolyn apparently did not answer or appear. In spite of the Dallas County suit, on February 29, 2001, Rickey and his attorney (and Carolyn and her attorney) signed a binding Mediated Settlement Agreement, filed in Johnson County, which was to resolve the divorce. Tex. Fam. Code Ann. § 153.0071(d) (Vernon 2002). The trial court had ordered the parties to mediation on February 23. Id.

      However, in April 2001, Rickey’s counsel withdrew in the Johnson County suit, citing inability to effectively communicate with him. On April 17, acting pro se, Rickey filed what he called a revocation of his consent to the Mediated Settlement Agreement. On May 4, 2001, again pro se, Rickey obtained a default judgment before a visiting judge in Dallas County. He was appointed sole managing conservator and Carolyn was appointed possessory conservator. The decree contained the standard statutory provisions, and Carolyn was ordered to pay child support.

      Meanwhile, the case proceeded in Johnson County. Carolyn also filed a motion for a new trial in Dallas County. On May 21, 2001, the Dallas County trial court granted the motion, set aside the divorce decree, and dismissed Rickey’s action. Then, on May 24, 2001, Carolyn obtained a final divorce decree in Johnson County.

      After various post-decree motions and hearings, the Johnson County trial court issued another Final Decree of Divorce on November 6, 2001. Carolyn and Rickey were appointed joint managing conservators, and Carolyn was adjudged the right to establish the residence of R.F. Neither party was ordered to pay child support. Some, but not all, of the standard statutory provisions are included in the decree. Rickey appeals from this decree.

In Which County is Venue Proper?

      The Johnson County trial court proceeded with the lawsuit after the hearing on Rickey’s motion to transfer venue, so impliedly it denied the motion. A trial court must determine venue solely on the pleadings and any attached affidavits. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002); Tex. R. Civ. P. 87.3; Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). Venue facts pled are taken as true unless specifically denied by the adverse party, in which event the party pleading venue must make prima facie proof of the venue fact. Tex. R. Civ. P. 87.3(a). On appeal, however, the court must review the entire record including any trial evidence. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 2002); Wilson v. Texas Parks & Wildlife Dept., 886 S.W.2d 259, 261-62 (Tex. 1994); Ruiz, 868 S.W.2d at 757-58. Venue may be proper in many counties, and, if so, the plaintiff may chose the county in which to file suit. Wilson, 886 S.W.2d at 260. If the plaintiff filed suit in a county of proper venue, the trial court may not transfer venue to another county which also would have been proper if chosen by the plaintiff. Id. at 261. Reversal is mandatory if the motion to transfer was erroneously granted or denied. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Wichita County, Texas v. Hart, 917 S.W.2d 779, 781 (Tex. 1996); Ruiz, 868 S.W.2d at 757.

      A divorce action may be filed in Texas if either the petitioner or respondent has been a domiciliary of Texas for six months before suit. Tex. Fam. Code Ann. § 6.301 (Vernon 1998). Venue is fixed in the county in which that same party has resided for ninety days before suit. Id. If a child is involved, the trial court has jurisdiction within the divorce action, regardless of where the child resides. Id. § 103.001(a)(2) (Vernon 2002). Carolyn responded to Rickey’s challenge to venue by filing an affidavit in which she swore she had continuously resided in Johnson County since March 2000. Carolyn made prima facie proof of the venue facts required in section 6.301. Tex. R. Civ. P. 87.3(a).

      We overrule this complaint.

Which Decree Controls?

      The Dallas County trial court granted Carolyn’s motion for a new trial, set aside the divorce decree, and dismissed Rickey’s action. Thus, there is no valid divorce decree from Dallas County. As a result, Rickey’s argument that a decree from there controls is completely without merit. We overrule this complaint.

Is the Provision About Religious Training Unconstitutional?

      Apparently Rickey is complaining about a provision in the divorce decree that confers on Carolyn the “duty of care, control, protection, and moral and religious training, and reasonable discipline of the child.” The Family Code grants a parent appointed as a conservator “the right to direct the moral and religious training of the child.” Tex. Fam. Code Ann. § 153.074(5) (Vernon 2002). Rickey says the provision in the decree violates the freedom of religion provisions of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. The Establishment Clause of the First Amendment applies to the states through the Fourteenth Amendment. Zelman v. Simmons-Harris, __ U.S. __, 122 S.Ct. 2460, 2465, __ L.Ed.2d __ (2002); Green v. United Pentecostal Church, 899 S.W.2d 28, 29 (Tex. App—Austin 1995, writ denied). It prohibits government from enacting laws that have either the “purpose” or “effect” of advancing or inhibiting religion. Zelman, 122 S.Ct. at 2465.

      We find no basis for concluding that section 153.074(5) or the provision in this decree has the “purpose” or “effect” of advancing or inhibiting religion. They merely express what commonly occurs in parenting, i.e., parents may provide for the religious development of their children as they see fit. We overrule this complaint.

Conclusion

      We overrule Rickey’s complaints and affirm the Final Decree of Divorce.

                                                                   BILL VANCE

                                                                   Justice

Before Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed October 1, 2003

[CV06]

line-height:200%'>   Exculpatory results would serve only to muddy the waters regarding Yarbrough’s guilt.  See Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002); Carter v. State, 134 S.W.3d 484, 486 (Tex. App.—Waco 2004, no pet.).  This is particularly true in view of the fact that the record contains sufficient other evidence tending to connect Yarbrough to the commission of the offense as a party.  Thus, we conclude that Yarbrough failed to prove beyond a reasonable doubt that that he would not have been convicted if exculpatory results were obtained.  We overrule Yarbrough’s first issue.

We affirm the order denying Yarbrough’s motion for postconviction DNA testing.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Opinion delivered and filed March 12, 2008

Publish

[CRPM]

---

[1]               One of the eyewitnesses stated that the “white male” “looked like he might have been Hispanic.”

[2]               The other witness identified the person in photo “number 5” in a photographic line-up as the Caucasian, but it is not clear from the limited record before us whether Yarbrough was the person identified.

[3]               Brumfield pleaded guilty and testified against Yarbrough.

[4]               It is undisputed that the remainder of the evidence referred to in Yarbrough’s brief remains in the State’s possession in a condition making DNA testing possible and has been subjected to a sufficient chain of custody.  See Tex. Code Crim. Proc. Ann. 64.03(a)(1)(A) (Vernon 2006).

[5]               Yarbrough’s co-defendant Brumfield is currently serving his prison sentence for this offense.  At the hearing, Yarbrough argued that a specimen of Brumfield’s DNA should be obtained either from a blood specimen allegedly taken from Brumfield when he was initially imprisoned at TDCJ or by court order requiring that a new blood specimen be drawn.  Yarbrough does not refer to these contentions in his appellant’s brief but does argue that certain evidence in the State’s possession should be tested for Brumfield’s DNA.

[6]               Yarbrough likewise wanted to establish the presence of Brumfield’s DNA in the fingernail scrapings he sought to obtain from Shaw’s body.