Opinion
NO. 01-18-00192-CV
04-16-2019
CECIL ADAMS, Appellant v. MAXINE ADAMS, Appellee
On Appeal from the 311th District Court Harris County, Texas
Trial Court Case No. 2017-00441
MEMORANDUM OPINION
Appellant, Cecil Adams, challenges the trial court's decree of divorce terminating his marriage to appellee, Maxine Adams. In twelve issues, Cecil complains that: (1) the trial court erred in denying his motion for new trial on the ground that court officers allegedly concealed a record of testimony and violated his rights to a fair trial; (2) the trial court abused its discretion "by not giving [him] a standard possessory custody order," thus violating his "parental rights pursuant to Texas Family Code 151.001 and help[ing] aid parental alienation"; (3) the trial court erred in not hearing the motion for new trial and instead referring the case to the associate judge in violation of Texas Family Code section 201.104(d); (4) the trial court abused its discretion in making findings of family violence "and not correcting temporary and final order[s] in violation of [the] Texas Code of Judicial Conduct that requires judges to consider all evidence in the case in making their determination, not just the evidence that supports the finding"; (5) the trial court erred "in not granting [his] recusal motion"; (6) the trial court abused its discretion by reinstating the case even though Maxine failed to present evidence that she adhered to the scheduling order; (7) the trial court erred in "sustaining jury findings without any admitted evidence of cruelty"; (8) the trial court erred and abused its discretion in its division of the community estate; (9) the trial court erred in "making findings of cruelty" because Maxine failed to present credible evidence to support such findings; (10) the trial court erred in granting the divorce because there was no evidence to support any ground for divorce recognized by Texas law; (11) Maxine violated his Fourth Amendment rights to privacy by judicially admitting to tracking his car by GPS; and (12) the trial court erred in failing to hear and rule on "properly set motions pursuant to Texas Rules of Civil Procedure 21."
We affirm.
Background
Cecil and Maxine Adams were married in December 2000. Over the next several years, Cecil and Maxine had four sons born in 2004, 2006, 2007, and 2009.
On January 4, 2017, Maxine filed her petition for divorce from Cecil asserting that the parties had ceased living together as husband and wife in December 2016 and alleging that the marriage had become insupportable. Maxine made allegations of infidelity, financial fraud and irregularities, and other concerns that occurred between Cecil and herself, and she sought full custody of the couple's four minor sons, child support, and a division of the marital estate. Cecil answered by denying Maxine's allegations, and he also sought full custody of the minor children.
On February 15, 2017, the trial court held a hearing before entering temporary orders. A partial record of this hearing is contained in the appellate record. Both parties appeared pro se and testified regarding the breakdown of their marital relationship. Among other testimony, Maxine related incidents of domestic violence by Cecil against her and two of the children. Cecil denied that violence had occurred, testifying that he had attempted to stop a fight between two of his sons but ended up striking one of them in the eye with his fist, leaving a bruise, because he was trying to protect his younger child.
The record also contains an order dated February 14, 2017, signed by the judge of the 280th District Court of Harris County denying an application for a protective order. No other documentation or record regarding this application was filed in the trial court in the underlying proceeding.
On March 10, 2017, the trial court signed temporary orders based on the testimony at the February 15, 2017 hearing. The trial court found that:
(1) family violence has occurred within two years of filing the lawsuit in this matter, (2) it is not in the best interest of the child[ren] to name both parents Joint Managing Conservators, (3) [Maxine] shall be named Sole Managing Conservator, and (4) [Cecil] shall be named Possessory Conservator.The trial court also found in its temporary orders that awarding Cecil a standard possession order was not in the children's best interest. The trial court awarded Cecil supervised visitation for two hours every Tuesday evening, three hours of supervised visitation on the second and fourth Saturdays of each month, and three hours of supervised visitation on the second and fourth Sundays of each month. The trial court also ordered additional times for FaceTime and phone conversations between Cecil and the children. The trial court made further temporary orders regarding some property and assets pending final resolution of the divorce, and it ordered that Cecil pay child support to Maxine in the amount of $772.93 each month.
On April 4, 2017, Cecil filed an emergency motion for the trial court to reconsider his visitation rights. Cecil relied in part on a "Notice of Finding of CPS Investigation" dated March 28, 2017. This notice stated that the allegations that he abused two of his sons was "ruled out" by CPS and the investigation was closed. Cecil argued that because "all allegations have been cleared it is reasonable for this court to allow [him] . . . to have at minimum the standard possession order concerning visitation rights." He also alleged that there were reasons that he was not able to spend time with his children during his court-ordered visitation, including difficulties with his own schedule and difficulties between Maxine and himself. The record does not contain a ruling by the trial court on this motion.
On November 13, 2017, Cecil filed a notice of intent to file a writ of mandamus in the trial court, but it does not appear from the record in this case that he ever filed the mandamus petition challenging these temporary orders of the trial court.
The case proceeded to a trial before a jury on December 11 and 12, 2017. Cecil filed an incomplete reporter's record of the trial proceedings, including only the portions of the trial proceedings in which he objected to Maxine's use of certain evidence from the February 15, 2017 temporary orders hearing and portions of Maxine's testimony regarding the official investigations into the allegations of child abuse.
The clerk's record, however, contains the jury's verdict. The jury was asked:
Has there been any intentional use of abusive physical force, or evidence of sexual abuse, by the RESPONDENT Cecil Adams
directed against his spouse, against a parent of the children or against any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit?The jury answered, "YES." The jury was also asked:
Has the RESPONDENT Cecil Adams engaged in any family violence meaning, an act by a member of a family against another member of the family that is intended to result in physical harm during the two years preceding the date of the filing of the suit or during the pendency of the suit?The jury answered, "YES." The jury also believed that Maxine should be appointed as the sole managing conservator of the minor children and that Cecil should be a possessory conservator.
The remaining issues in the divorce case were addressed in a bench trial that occurred on December 13, 2017. There is no reporter's record of these proceedings.
On December 18, 2017, Cecil filed a motion for new trial asserting violations of various constitutional rights, penal code violations, and other issues, arguing:
New evidence will show the court abuse[d] it[s] discretion, violated [his] 4th amendment rights to a fair trial, violated [his] parental rights with respect to temporary orders, prejudice[d] the trial by not adhering to the Texas Code of Judicial Conduct and ultimately aided [Maxine] in parental alienation which is not in the best interest of the Adams' four minor [children] and not in the best interest of fair justice.Cecil presented evidence that he had requested a copy of the transcript of the February 15, 2017 hearing on temporary orders but was told by the court reporter that no transcript was taken. However, because Maxine introduced excerpts of the transcript at trial, Cecil argued that the transcript was withheld and concealed from him due to bias. Cecil also argued in his motion for new trial that the trial court did not take proper notice of DFPS's finding from March 2017 that "ruled out" the allegations that he physically abused two of his sons. Cecil argued that, because of this finding by DFPS, the trial court abused its discretion in entering findings of family violence and curtailing his visitation with his sons in the temporary orders.
On January 9, 2018, the trial court rendered its final decree of divorce. The decree found that "the parties entered into a Partial Mediated Settlement Agreement (the "MSA") on December 7, 2017," and it made the necessary findings to render judgment according to the terms of the MSA. The trial court also found that the parties had entered into certain stipulations on December 11, 2017, regarding child custody issues, including that the trial court should appoint one parent as sole managing conservator and the other as possessory conservator and making certain plans regarding child support obligations.
The trial court found that the marriage had become "insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation." The trial court aslo found Cecil at fault on the ground of cruel treatment.
Regarding conservatorship of the children, the trial court found that the parties tried the matter to a jury in part and to the bench in part. The trial court recognized the jury's findings that Cecil had engaged in family violence and used force against a family member and its findings determining that Maxine should be named sole managing conservator of the children. It found that such findings were in the children's best interests and named Maxine as the children's sole managing conservator and Cecil as their possessory conservator. The trial court ordered in its final decree that Cecil have possession and access as set forth in the March 10, 2017 temporary orders, with possession and access to be supervised at all times, and the trial court again set out the terms of Cecil's possession in the final decree—two hours every Tuesday, three hours on the second and fourth Saturday and Sunday of each month, and two hours on each birthday. The trial court further ordered that Cecil's possession and access not include the provisions for telephonic and FaceTime communications set out in the temporary orders. The trial court also ordered child support as agreed to in the MSA.
Regarding division of the marital estate, the trial court stated in its decree that the estate was divided according to the parties' stipulations and in accordance with their agreement in the MSA.
Regarding the temporary orders, the final decree stated, "All obligations and duties imposed by the Temporary Orders signed on March 10, 2017 except as expressly stated in this Final Decree of Divorce are discharged on the date this Final Decree of Divorce is signed."
Also on January 9, 2018, the trial court signed an order on division of community property regarding the parties' interest in settlement proceeds from unrelated litigation, a possession order, and various qualified domestic relations orders and other orders implementing its final decree. The possession order found that the supervised possession by Cecil was in the children's best interest, that a standard possession order was "not appropriate or workable under the circumstances," and that the supervised possession order was "not more restrictive than necessary to provide for the safety of the children." The order repeated the finding that Cecil had committed family violence within the two years preceding the filing of the suit. This order again awarded Cecil supervised visits every Tuesday for two hours; three hours of visitation at his church on the second and fourth Sundays of each month; three hours of supervised visitation on the second and fourth Saturdays of each month; and two hours of supervised visitation with each child on the children's birthdays.
On January 16, 2018, Cecil filed a document styled "Additional Violations and Judicial Misconduct of Officers of the Court Pursuant to Texas Penal Code 39.02 and Texas Penal Code 39.03 and Notice to Assistant Attorney General Thomas Singleton and Attorney General Ken Paxton to report judicial misconduct Pursuant to Texas Disciplinary Rules of Professional Conduct 8.03(b)." He again argued that an earlier denial of a protective order and CPS's notice that the allegations of abuse were ruled out were dispositive of the issues between himself and Maxine and that the trial court's subsequent child custody rulings violated his rights as a parent. He also again raised his complaints regarding the availability of the February 15, 2017 hearing transcript. He asked for the following relief: that the trial court "sign an order of contempt" against Maxine and sign temporary orders awarding him full custody of the children; that the trial court "report judicial misconduct of court officials pursuant to Texas Disciplinary Rule of Professional Conduct 8.03"; and that the trial court declare a mistrial due to the trial court's violations of various provisions of the Penal Code, Government Code, Code of Professional Conduct, and the Fourteenth Amendment of the US Constitution. It does not appear from the record that the trial court held a hearing or ruled on this motion. Cecil filed additional motions in February and March 2018 asking for further reconsideration of the trial court's rulings.
The trial court denied Cecil's motion for new trial. The record does not contain any rulings on his subsequent motions for reconsideration. This appeal followed.
Limited Record on Appeal
In response to Cecil's arguments on appeal, Maxine argues that he filed an incomplete record on appeal without complying with the requirements of Rule of Appellate Procedure 34.6 and thus this Court must presume that the evidence supports the trial court's judgment.
An appellant bears the burden of bringing forward a record sufficient to show that the trial court erred. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam); Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Rule 34.6(c) provides a mechanism by which a partial reporter's record may nevertheless be considered complete for purposes of appeal. When an appellant requests a partial reporter's record, it must include with that request "a statement of the points or issues to be presented on appeal and [the appellant] will then be limited to those points or issues" in challenging the judgment of the trial court. TEX. R. APP. P. 34.6(c)(1). When the procedures are followed, "[t]he appellate court must presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues." Id. 34.6(c)(4).
However, if an appellant provides a partial reporter's record without including the required statement of points or issues, we must presume that the omitted portions of the reporter's record support the trial court's findings. See Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002); Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
Here, Cecil filed a partial reporter's record without following the procedures of Rule 34.6. He did not provide a statement of the points or issues to be presented. Therefore, we must presume that the omitted portions of the reporter's record support the trial court's findings. See Bennett, 96 S.W.3d at 229-30; Richards, 969 S.W.2d at 133.
Cecil raises several issues on appeal that require this Court to review the evidence in support of various findings by the jury and the trial court. In his second issue, he argues that the trial court abused its discretion "by not giving at a minimum a standard possessory custody order to [Cecil]," thus violating his "parental rights pursuant to Texas Family Code 151.001 and help[ing] aid parental alienation." In his fourth issue, Cecil argues that the trial court abused its discretion in making findings of family violence "and not correcting temporary and final order[s] in violation of Texas Code of Judicial Conduct that requires judges to consider all evidence in the case in making their determination, not just the evidence that supports the finding." In his seventh issue, Cecil argues that the trial court erred in "sustaining jury findings without any admitted evidence of cruelty." In his eighth issue, he complains that the trial court erred and abused its discretion in its division of the community estate. In his ninth issue, Cecil argues that the trial court erred in "making findings of cruelty" because Maxine failed to present credible evidence to support such findings. In his tenth issue, Cecil asserts that the trial court erred in granting the divorce because there was no evidence to support any ground for divorce recognized by Texas law. Because we must presume that the omitted portions of the record support the findings of the trial court on these issues, we cannot say that there was insufficient evidence supporting the trial court's findings in support of granting the divorce, dividing the community estate, making custody determinations, and entering findings on family violence and cruelty. See Bennett, 96 S.W.3d at 229-30; Richards, 969 S.W.2d at 133.
We overrule Cecil's second, fourth, seventh, eighth, ninth, and tenth issues on appeal. We may consider, however, issues that can be determined based on the record that was filed on appeal. See, e.g., TEX. R. APP. P. 37.3(c) (providing that when appellant fails to file reporter's record, appellate court may consider and decide those issues or points that do not require reporter's record for decision); Garcia v. Sasson, 516 S.W.3d 585, 591-92 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (considering whether partial reporter's record demonstrated error in light of presumption that omitted portions of record supported trial court's findings).
Motion to Reinstate
In his sixth issue, Cecil argues that the trial court abused its discretion by reinstating the case even though Maxine failed to present evidence that she adhered to the scheduling order.
On September 14, 2017, the trial court dismissed the case for want of prosecution. On that same day, Maxine filed a motion to reinstate the case, alleging that she had been diligent in prosecuting the case, but Cecil had refused to cooperate with various court orders or mediation plans. She also cited Hurricane Harvey as a factor in preventing her from timely dealing with some of the matters in the case. She filed an affidavit in support of the facts alleged in her motion to reinstate.
Cecil responded to her motion to reinstate, asserting that Maxine "showed no legal cause for reinstate[ment]." He argued that Maxine "was informed in June [that] the matter would be subject [to] dismissal for not following rules and guidelines set by the court" and that her motion "does not address why she did not follow the instructions of the court or present evidence showing attempted communication to [him]."
On October 24, 2017, the trial court reinstated the case in an order stating, "On this 24th day of October 2017 the court heard [the] motion to reinstate [the] case and . . . [the] court orders that the motion is granted and the case is placed on the docket."
A party may file a verified motion to reinstate within thirty days after the order of dismissal is signed. TEX. R. CIV. P. 165a(3). "The court shall reinstate the case upon finding after a hearing that the failure of the party . . . was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." Id. We review a trial court's decision on a motion to reinstate for an abuse of discretion. Brown v. Howeth Invs., Inc., 820 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
Here, Cecil failed to provide a record of the hearing on Maxine's motion to reinstate, so we cannot evaluate what evidence was presented to the trial court at that time. Thus, Cecil failed to meet his burden of presenting a record sufficient to demonstrate that the trial court abused its discretion. See Nicholson, 226 S.W.3d at 583; Brown, 820 S.W.2d at 903. Furthermore, evidence of whether Maxine adhered to the scheduling order is not dispositive of this issue—a trial court "shall" reinstate a case when any failure to prosecute "was not intentional or the result of conscious indifference but was due to an accident or mistake" or when "the failure has been otherwise reasonably explained." See TEX. R. CIV. P. 165a(3). Maxine supported her motion with an affidavit stating, among other reasons, that Cecil's lack of cooperation with the litigation process and complications caused by Hurricane Harvey led to the delays in the case. See id. Accordingly, Cecil has failed to demonstrate that the trial court abused its discretion in reinstating the case. See id.; Brown, 820 S.W.2d at 903.
We overrule Cecil's sixth issue.
Motion for New Trial
In his first issue, Cecil complains that the trial court erred in denying his motion for new trial.
A. Relevant Facts
On December 18, 2017, Cecil filed a motion for new trial asserting violations of various constitutional rights, penal code violations, and other issues, arguing:
New evidence will show the court abuse[d] it[s] discretion, violated [his] 4th amendment rights to a fair trial, violated [his] parental rights with respect to temporary orders, prejudice[d] the trial by not adhering to the Texas Code of Judicial Conduct and ultimately aided [Maxine] in parental alienation which is not in the best interest of the Adams' four minor [children] and not in the best interest of fair justice.Relevant to this appeal, Cecil presented evidence that he requested a copy of the transcript of a hearing on temporary orders that occurred on February 15, 2017. In response to his request for that record, the court reporter at the temporary hearing, Stephanie Wells, responded, "Mr. Adams—I have no record of having taken anything in this matter on the record. Unless the attorney requests that the hearing be put on the record, there is no record made."
Subsequently, at trial in December 2017, Maxine introduced excerpts of the transcript from the February 15, 2017 hearing as rebuttal evidence when she questioned Cecil. Maxine offered "the prior testimony from February 15th of Cecil Adams, the transcripts." The trial court verified that by "transcripts" Maxine was introducing the "certified copy of the transcript," which she confirmed, and she produced the certified transcript to both Cecil and the trial court:
[Cecil]: I object to this, Your Honor. I've never received this document at all. I think that it's very untimely to present a 20 page document—Cecil did not seek a continuance or otherwise raise a concern regarding the admission and use of the transcript from the February 15, 2017 temporary orders hearing.
[Court]: It's rebuttal evidence. There are different rules regarding evidence regarding rebuttal exhibits.
[Cecil]: It should have been presented.
[Court]: Sir, there are different rules regarding rebuttal evidence. Okay. Any other objection?
[Cecil]: No.
[Court]: Then that objection is overruled; and [Maxine's] Exhibit 90 [the temporary hearing transcript] is admitted into evidence.
After the trial court had rendered its final decree of divorce, Cecil again contacted Wells regarding the transcript, stating, "Ms. Adams presented the court reporters record as evidence at trial . . . . Please provide the date the record was requested and given to Ms. Adams. Thank you in advance for your timely response." Wells responded:
Mr. Adams—I do not know why in June I could not find a record of having taken a record on that date when you requested it. I go through periods [i]n this Court where I have hundreds of requests, while being in trial almost every day; and for reasons unbeknownst to me, I could not find it at that time.
I am happy to provide you the record, if you like. It was ordered rush I think between the time of the Jury Trial and the Bench issues. I worked on it late at night from home and did not have access to your E-mail to let you know a copy was available.
I am happy to provide that to you, along with the rest of the exhibits that you requested in December after the trial.
In the intervening time, Cecil had filed a motion to recuse the trial court. The associate judge conducted a hearing on Cecil's motion for new trial but did not take any evidence. An order denying the motion for new trial was signed by the associate judge following the hearing.
The hearing was conducted by associate judge, Hon. Diane Guariglia, who also signed the order denying Cecil's motion for new trial.
B. Standard of Review
We review a trial court's refusal to grant a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or whether the trial court's actions were arbitrary or unreasonable under the circumstances of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
We also review a trial court's ruling on a motion for new trial based on newly discovered evidence for an abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 629 (Tex. App.—Dallas 2004, pet. denied). A party seeking new trial on the ground of newly discovered evidence must show the trial court that (1) the evidence has come to its knowledge since the trial; (2) the failure to discover the evidence sooner was not due to lack of diligence; (3) the evidence is not cumulative; and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Waffle House, Inc., 313 S.W.3d at 813; Mitchell, 156 S.W.3d at 629.
C. Analysis
Cecil argues that Wells withheld and concealed the record from the February 15, 2017 temporary hearing for over six months and that these actions violated his right pursuant to Government Code section 52.047 to apply for a transcript of the evidence in a case reported by an official court reporter, violated his right to a fair trial, and constituted a violation under Brady v. Maryland and several criminal statutes.
As a preliminary matter, we note that Cecil has cited no authority, nor could we find any, indicating that either Brady v. Maryland or other statutory provisions cited by Cecil would apply here to provide him the relief that he requested in his motion for new trial. See, e.g., Culver v. Culver, 360 S.W.3d 526, 536 (Tex. App.—Texarkana 2011, no pet.) (overruling Brady complaint in divorce case on basis that Brady applies in criminal proceedings and appellant had provided no authority that it was applicable in civil proceedings); Draper v. Guernsey, No. 03-16-00745-CV, 2017 WL 2224540, at *4 (Tex. App.—Austin May 18, 2017, pet. denied) (mem. op.) ("[A]llegations of perjury are not properly before a trial court in a civil proceeding and must take place within the context of a criminal proceeding."); LeBlanc v. Lange, 365 S.W.3d 70, 87 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding that penal-code violations, including perjury, do not give rise to private causes of action); see also TEX. GOV'T CODE ANN. § 52.047 (providing procedures for court reporter's furnishing transcripts).
Furthermore, we observe that Cecil has failed to demonstrate that the trial court abused its discretion in denying his motion for new trial because of his complaint regarding the availability of the temporary orders hearing transcript. The record demonstrates that the transcript was not newly discovered evidence—rather, it was available at trial and portions of it were actually admitted into evidence. Cecil did not seek a continuance or otherwise indicate at trial that he needed time to consider evidence that he had believed was unavailable prior to trial. See Waffle House, Inc., 313 S.W.3d at 813 (holding that party seeking new trial on ground of newly discovered evidence must show trial court, among other things, that evidence has come to its knowledge since trial).
Cecil has also failed to demonstrate that the evidence was so material that it would probably have produced a different result if a new trial were granted. See id. He argues that the temporary orders hearing record contained testimony that was necessary for him to rebut trial testimony, and he argues that Maxine was able to use the transcript for rebuttal to his detriment. However, he does not identify any specific information that he would have admitted through rebuttal testimony but for the unavailability of the temporary hearing record.
Maxine offered portions of the transcript in which Cecil testified about an altercation between two of his sons that resulted in Cecil's striking the older child in the eye with a closed fist, resulting in bruising. The portions of the temporary orders hearing identified as relevant by Cecil contain Maxine's testimony regarding family violence Cecil committed against her and two of the children. She described one occurrence in or around October 2016 in front of the children when Cecil pushed her, causing her to fall and hit her head. Maxine further testified at the hearing that the violence escalated through the fall and winter of 2016, and the couple ultimately separated in December 2016. She also related concerns she had regarding inconsistencies in Cecil's whereabouts and spending, stating that he would lie about the hours he worked and would withdraw hundreds of dollars in cash from their bank account without being able to explain where he had spent the money. The temporary orders hearing transcript also contained Cecil's cross-examination of Maxine on these matters.
Finally, Cecil also argues that he needed the record to challenge the findings in the temporary orders and "to file a writ of mandamus against the honorable judge." Because he was able to challenge on appeal the rulings that were merged into the final, appealable decree, Cecil has failed to demonstrate how his inability to file a petition for writ of mandamus or other challenge to the trial court's temporary orders warranted a new trial. See In re A.K., 487 S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.) (providing that temporary orders are superseded by entry of final order, rendering moot any complaint about temporary orders); In re K.L.R., 162 S.W.3d 291, 301 (Tex. App.—Tyler 2005, no pet.) (noting that complaints relating to temporary orders that have been superseded by final order are moot); see also In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding) (stating that relator in mandamus proceeding must establish that he had no adequate remedy by appeal).
D. Ruling by Associate Judge
In his third issue, Cecil argues that the trial court erred in not hearing the motion for new trial and instead referring the case to the associate judge in violation of Texas Family Code section 201.104(d).
The provisions of Family Code chapter 201, subchapter B, including section 201.104(d), govern the qualifications, powers, and procedures for associate judges in Title IV-D cases, i.e., cases in which the attorney general is seeking child support. See TEX. FAM. CODE ANN. § 201.101-.113; In re R.A.O., 561 S.W.3d 704, 705 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Cecil has provided no authority indicating that the provisions of chapter 201, subchapter B apply to this divorce proceeding. Furthermore, Cecil has failed to show that he made a timely or proper objection to having the motion for new trial heard and ruled upon by the associate judge. To preserve a complaint for appellate review, the complaint must be made by a timely request, objection, or motion and with sufficient specificity to notify the district court of the complaint, and the complaining party must obtain an adverse ruling. See TEX. R. APP. P. 33.1(a). By failing to do so, Cecil waived any complaint regarding this issue. See id.; In re N.T., 335 S.W.3d 660, 669 (Tex. App.—El Paso 2011, no pet.).
We overrule Cecil's first and third issues on appeal.
Recusal Motion
In his fifth issue, Cecil argues that the trial court erred "in not granting [his] recusal motion."
Cecil filed two motions to recuse the trial court in this case. On August 1, 2017, Cecil filed a motion to recuse the Honorable Alicia Franklin York, the presiding judge of the 311th District Court where the case was pending, and a "Notice to file Writ of Mandamus" raising complaints regarding the trial court's temporary orders and its assignment of an amicus attorney to represent the children's interests. On August 3, 2017, the Honorable Olen Underwood, Presiding Judge of the Second Administrative Judicial Region of Texas, signed a ruling on Cecil's motion to recuse Judge York. The order stated that Judge York had "declined to recuse voluntarily" and thus Judge Underwood reviewed the motion and concluded "that it does not state legally sufficient grounds for disqualification or recusal." Accordingly, the motion to recuse was denied.
After the trial court had rendered its final decree, Cecil filed a second "Recusal and Disqualification Motion" on January 31, 2018. He argued that the trial court should disqualify itself because the court reporter "concealed and withheld" the record of the February 15, 2017 temporary orders hearing, and he argued that this action demonstrated bias on the part of the trial court. He also argued that the trial court failed to take appropriate notice of CPS's investigation into the allegations of physical abuse and improperly curtailed his access to his children.
On February 1, 2018, the trial court denied Cecil's second motion to recuse and disqualify and again referred the matter to the Honorable Olen Underwood.
We review the denial of a motion to recuse for an abuse of discretion. See TEX. R. CIV. P. 18a(j)(1)(A). "A party seeking recusal must satisfy a 'high threshold' before a judge must be recused." In re E.R.C., 496 S.W.3d 270, 279 (Tex. App.—Texarkana 2016, pet. denied) (quoting Ex parte Ellis, 275 S.W.3d 109, 116 (Tex. App.—Austin 2008, no pet.)). Under Texas Rule of Civil Procedure 18b(b)(1) and (2), a judge shall recuse herself in any proceeding in which her impartiality "might reasonably be questioned" or in which she has a "personal bias or prejudice concerning the subject matter or a party[.]" TEX. R. CIV. P. 18b(b)(1), (2). Cecil bore the burden to prove that recusal was warranted, and such a burden is only met through a showing of bias or impartiality to such an extent that he was deprived of a fair trial. See In re H.M.S., 349 S.W.3d 250, 253 (Tex. App.—Dallas 2011, pet. denied). A judicial ruling alone almost never constitutes a valid basis for a motion to recuse based on bias or partiality. See id. Under Rule 18b(b)(2), the test for recusal is "'whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge is actually impartial.'" Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769, 776 (Tex. App.—Dallas 2011, no pet.) (quoting Sears v. Olivarez, 28 S.W.3d 611, 615 (Tex. App.—Corpus Christi 2000, order), disp. on merits, No. 13-00-344-CV, 2003 WL 22208326 (Tex. App.—Corpus Christi 2003, pet denied)); see TEX. R. CIV. P. 18b(b)(2).
On appeal, Cecil argues that the trial court erred in denying his motions to recuse because he had presented evidence that the transcript of the February 15, 2017 temporary orders hearing "was concealed and withheld by officers of the court to bias proceedings, yet the court continues to rule on matters that are in conflict of interest with the judge and staff" of the trial court.
Cecil misrepresents the state of the record. He presented no evidence that the transcript was "concealed or withheld" on the basis of bias. To the contrary, Wells' e-mail on the matter indicated that she did not know why she could not find the record when Cecil originally requested it, but she offered to provide it to him at the time of their communication. And any miscommunication between Cecil and Wells regarding the availability of the temporary orders hearing transcript does not indicate that the trial court was biased to the extent that "'a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's conduct, would have a reasonable doubt that the judge [was] actually impartial.'" See TEX. R. CIV. P. 18b(b)(2); Hansen, 346 S.W.3d at 776.
We overrule Cecil's fifth issue on appeal.
Fourth Amendment Complaint
In his eleventh issue on appeal, Cecil complains that Maxine violated his Fourth Amendment rights to privacy by judicially admitting to tracking his car by GPS. We first observe that the Fourth Amendment applies to governmental action, not the actions of a private citizen like Maxine. See U.S. CONST. amend. IV. Furthermore, nothing in the record demonstrates that evidence obtained by tracking his car with GPS was admitted during the trial. Thus, he failed to meet his burden of bringing forward a sufficient record to show that the trial court erred. See Christiansen, 782 S.W.2d at 843; Nicholson, 226 S.W.3d at 583.
We overrule Cecil's eleventh issue.
Ministerial Duty to Rule on Motions
In his twelfth issue on appeal, Cecil argues that the trial court erred in failing to hear and rule on "properly set motions pursuant to Texas Rules of Civil Procedure 21."
Cecil also asserts in a conclusory fashion that the trial court "abused its discretion by hearing temporary order [sic] without proper notice." However, he makes no citations to the record or to any authority to support this contention. Accordingly, it is waived for failure to adequately brief it. See TEX. R. APP. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
Cecil argues that he filed motions in March and April 2017 seeking reconsideration of the trial court's temporary orders and that the trial court erred in denying these motions. As we have already stated, however, any complaints about the temporary orders, which are now merged into the final decree that is the subject of this appeal, are moot. See In re A.K., 487 S.W.3d at 683 (providing that temporary orders are superseded by entry of final order, rendering moot any complaint about temporary orders); In re K.L.R., 162 S.W.3d at 301 (noting that complaints relating to temporary orders that have been superseded by final order are moot). Furthermore, Cecil's argument that these motions were denied undermines his argument that the trial court neglected its ministerial duty to rule. To the extent Cecil is complaining that he was not given a hearing on his motions to reconsider, he has cited no authority indicating that the trial court was required to hold a hearing on the motions, nor could we find any. See, e.g., Olsen v. Comm'n for Lawyer Discipline, 347 S.W.3d 876, 887 (Tex. App.—Dallas 2011, pet. denied) (generally, trial court is not required to hold hearing on motion for new trial except when motion presents question of fact upon which evidence must be heard); Landis v. Landis, 307 S.W.3d 393, 394 (Tex. App.—San Antonio 2009, no pet.) (same).
We overrule Cecil's twelfth issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Higley, and Landau.