in the Interest of J. A., Jr., a Minor Child
482 S.W.3d 141
| Tex. App. | 2015Background
- Father (J.A., Sr.) filed a petition to modify conservatorship 20 days after a child-support review order increased his support obligations; the 2010 agreed order had given Mother exclusive right to designate the child’s primary residence.
- Father sought appointment as joint managing conservator with exclusive right to determine residence; he did not attach a Section 156.102 affidavit to the petition.
- Mother moved for Rule 13 sanctions arguing the petition was groundless, in bad faith, frivolous, and for harassment; she sought dismissal and fees.
- A sanctions hearing was set; Father’s counsel filed a continuance motion but neither Father nor counsel appeared at the hearing; the trial court dismissed the modification petition under Rule 13 and awarded $2,500 in attorney’s fees to Mother.
- The trial court’s Rule 13 order did not state particularized findings of the “good cause” required by Rule 13; there is no Reporter’s Record and Father did not request findings or object to the order’s form.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| 1. Dismissal of petition to modify | Dismissal was improper; petitioner may not be defaulted and was denied opportunity to be heard | Motion sought dismissal under Rule 13 for frivolous/bad-faith filing; hearing occurred and Father failed to appear | Court affirmed dismissal: sanction under Rule 13 (not default on merits) was within discretion |
| 2. Presumption of good faith / discovery | Father claims he was entitled to presumption of good faith and opportunity for discovery to rebut sanctions | Mother presented motion to show petition was groundless/bad-faith; no Reporter’s Record to show evidence | Court refused relief; record lacked Reporter’s Record and Father did not preserve objections, so issue waived |
| 3. Failure to state particulars required by Rule 13 | Father argues Rule 13 requires particularized findings of good cause; absence requires reversal | Mother bore burden to prove bad faith; trial court found motion “well taken” | Court held failure to include particulars is error but Father waived it by not requesting findings or objecting; appeal denied on this point |
| 4. Violation of local rules (certificate of conference/agreed dates) | Hearing scheduled without certificate of conference or agreed dates contrary to Tarrant County local rules | Mother proceeded with motion and hearing; trial court held hearing | Court found error not preserved because Father did not raise timely objection in trial court; issue waived |
Key Cases Cited
- GTE Communications v. Tanner, 856 S.W.2d 725 (Tex. 1993) (abuse-of-discretion standard for Rule 13 sanctions)
- Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (definition of abuse of discretion)
- Bradt v. Sebek, 14 S.W.3d 756 (Tex.App. 2000) (sanction must be just and directly related to harm)
- Giron v. Gonzalez, 247 S.W.3d 302 (Tex.App. 2007) (child-support review orders can trigger Section 156.102 affidavit requirement)
- Slaughter v. Clement, 64 S.W.3d 448 (Tex.App. 2001) (plaintiff may not be defaulted; dismissal for want of prosecution requires notice and opportunity to be heard)
- Campos v. Ysleta General Hosp., Inc., 879 S.W.2d 67 (Tex.App. 1994) (Rule 13’s particularity requirement; remedy and waiver discussion)