Stephen Fox v. Mirna Azucena Alberto
455 S.W.3d 659
| Tex. App. | 2014Background
- Fox and Alberto are parents of twins; Fox sought paternity and parental-rights adjudication.
- Fox filed two motions to recuse Judge Warne; First Motion denied by Judge Underwood for Rule 18a noncompliance.
- Second Motion was heard by Judge Underwood who denied it after argument; Fox was not allowed to present evidence as claimed.
- Trial proceeded to jury; the jury named Alberto as primary conservator and Fox to pay child support.
- On appeal, Fox challenges recusal rulings and asserts contempt/interference claims; the court dismisses contempt claims and affirms the recusal rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court properly deny the First Motion to recuse? | Fox contends Underwood lacked jurisdiction; denial signed out of Harris County. | Underwood properly denied for noncompliance with Rule 18a and jurisdictional rules do not require the county seat. | No error; no jurisdictional defect; denial proper. |
| Did the trial court properly deny the Second Motion to recuse? | Judge Underwood should have recused Warne based on bias and due-process issues; timely objection to Underwood’s ruling raised. | Objections under section 74.053(c) were waived and no extrajudicial-bias shown; Litekey standard applied. | denial not erroneous; no deep-seated bias shown. |
| Was Fox’s third issue regarding child-support calculation adequately supported? | Calculation allegedly failed to deduct an earlier order’s amount. | Issue inadequately briefed with no record/citation support. | Briefing waived; issue overruled. |
Key Cases Cited
- Liteky v. United States, 510 U.S. 540 (1994) (extrajudicial bias requires deep-seated favoritism or antagonism)
- Sommers v. Concepcion, 20 S.W.3d 27 (Tex. App.—Hou. [14th Dist.] 2000) (adopts Litekey standard for recusal in bias claims)
- Ludlow v. DeBerry, 959 S.W.2d 265 (Tex. App.—Hou. [14th Dist.] 1997) (recusal standard—bias must be from extrajudicial source)
- Whatley v. Walker, 302 S.W.3d 314 (Tex. App.—Hou. [14th Dist.] 2009) (county-seat requirement does not govern all judicial acts)
- Burns v. Bishop, 48 S.W.3d 459 (Tex. App.—Hou. [14th Dist.] 2001) (open-records/recusal procedure considerations)
- In re Approximately $17,239.00, 129 S.W.3d 167 (Tex. App.—Hou. [14th Dist.] 2003) (objection waiver when hearing underway)
- Chandler v. Chandler, 991 S.W.2d 367 (Tex. App.—El Paso 1999) (waiver of objections in recusal context)
- Whatley v. Walker, 302 S.W.3d 314 (Tex. App.—Hou. [14th Dist.] 2009) (county-seat principles for judicial proceedings)