Michael Justin Jacobs v. Adana Alt
14-15-00028-CV
| Tex. App. | Jul 9, 2015Background
- This is appellant Michael Justin Jacobs’ reply brief from an appeal of a final order in an Original Suit Affecting the Parent-Child Relationship (Williamson County trial court; final order signed Aug. 29, 2014). Appellant seeks reversal or remand.
- Central factual dispute: whether the child should be returned to mother Adana Alt (Appellee) and whether mother should have exclusive rights to designate the child’s residence and unsupervised possession, despite history of the child being in contact with a twice‑convicted pedophile uncle and alleged violations of injunctions.
- Appellant asserts trial court excluded key evidence: (1) a vicariously‑consented-to recorded telephone call showing the mother coaching the child, and (2) expert testimony that the child was afraid of her convicted uncle. Appellant contends those exclusions were preserved and erroneous.
- Appellant challenges legal sufficiency and factual sufficiency of the evidence supporting (a) the trial court’s grant of exclusive residence designation to mother, (b) mother’s unsupervised possession, and (c) other exclusive rights granted to mother; he argues these findings are not in the child’s best interest.
- Procedural/protective context: appellant obtained a bill of review and an injunction related to the uncle; appellant argues that after the bill of review the court should have treated the matter as original rather than a modification, and that an order that was vacated (by bill of review) cannot be modified.
Issues
| Issue | Plaintiff's Argument (Jacobs) | Defendant's Argument (Alt) | Held (requested/claimed in brief) |
|---|---|---|---|
| 1. Exclusion of recorded telephone call | Recording was admissible under vicarious consent (Alemeda) and showed mother coaching child; exclusion was preserved by offer of proof | Exclusion proper; appellant waived complaint by failing to make a bill of exceptions/precise proffer | Appellant argues error; trial court excluded call and brief asks reversal/remand to admit evidence |
| 2. Exclusion of expert testimony about child’s fear of uncle | Expert should have been allowed to testify that child reported fear of uncle and was coerced to recant; proffer preserved | Testimony excluded as irrelevant/hearsay because appellant lacked authorization to have child examined | Appellant argues exclusion was erroneous; requests new trial or admission on remand |
| 3. Exclusive residence designation and unsupervised possession | Evidence legally/factually insufficient to grant mother exclusive residence and unsupervised possession given risk from sex‑offender uncle and mother’s prior conduct; orders not in child’s best interest | Mother asserts father’s imperfections don’t justify depriving her residence/possession rights; trial court acted within discretion | Appellant contends trial court erred/abused discretion; asks this Court to reverse and render or remand for new conservatorship determinations |
| 4. Effect of Bill of Review on modification authority | Once a bill of review wiped out the prior order, there was nothing left to modify; the subsequent proceedings should have been treated as an original suit | Opposing counsel argues appellant waived this argument or failed adequate briefing | Appellant argues absence of authority does not equal waiver and asks reversal because a non‑existent order cannot be modified |
Key Cases Cited
- Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403 (Tex. App.–Houston [14th Dist.] 2004) (discusses preservation of error when evidence was never offered at trial)
- Leyba v. State, 416 S.W.3d 563 (Tex. App.–Houston [14th Dist.] 2013) (summarizes requirements to preserve complaint about excluded evidence and offers of proof)
- In re Lee, 411 S.W.3d 445 (Tex. 2013) (orig. proceeding) (addressed best‑interest review of mediated settlement terms permitting parental access despite proximity to convicted sex offender)
- Connors v. Connors, 796 S.W.2d 233 (Tex. App.—Fort Worth 1990) (addresses briefing sufficiency and waiver issues)
- Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80 (1988) (discusses effect of bill of review and restoring a petitioner to position absent due process)