In re H.W.G.

Full title: IN THE INTEREST OF H.W.G., A CHILD

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: Mar 25, 2016

No. 05-15-00114-CV (Tex. App. Mar. 25, 2016)

Opinion

No. 05-15-00114-CV

03-25-2016

IN THE INTEREST OF H.W.G., A CHILD

Opinion by Justice Lang-Miers

On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-55837-2009

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers

Appellant is the father and appellee is the mother of H.W.G., a minor. A few weeks after the trial court signed a final order in a suit to modify the parent-child relationship concerning H.W.G., Mother filed a motion for enforcement of possession and access seeking contempt sanctions and other relief against Father. After a hearing, the trial court denied Mother's motion but sua sponte signed an order concerning visitation in which the trial court awarded relief that was not requested by either party. On appeal Father argues that the trial court abused its discretion when it signed the order concerning visitation. We agree. We reverse the order concerning visitation and remand.

BACKGROUND

It is undisputed that Mother has a history of drug abuse. Sometime before January 2014, Father filed a suit to modify the parent-child relationship. In connection with that suit, Mother and Father entered into an irrevocable mediated settlement agreement (MSA) pursuant to sections 6.602 and 153.0071 of the Texas Family Code. In the MSA, the parties agreed that, subject to certain drug testing requirements, Mother's limited possession would occur in four incremental stages. First, Mother would have three-hour supervised possession certain days of the month for "ten (10) consecutive weeks" (Step 1). After completing Step 1, Mother would have six-hour unsupervised possession certain days of the month for the next three months (Step 2). After completing Step 2, Mother would have nine-hour unsupervised possession certain days of the month for the next three months (Step 3). And finally, after completing Step 3, Mother would have additional unsupervised possession according to a certain schedule, including overnight possession (Step 4). With respect to Mother's drug testing, the MSA states,

Drug Testing:

Emily Stephens agrees to submit to the following drug testing requirements:

a. Testing facility will be Surscan.
b. SurScan rules will determine what is a "no show"
c. A "no-show" or diluted sample will be deemed a positive test result.
d. Emily Stephens will submit to random standard 10 panel monthly drug tests.
e. Emily Stephens will submit to quarterly standard 10 panel hair testing with the initial test to take place no later than February 5, 2014.
f. Emily Stephens shall be subject to the SurScan Random Drug Testing policies.
g. Emily Stephens will be responsible for the cost of drug testing.
h. The attorneys will be authorized to receive the results of any drug rest.
I. The obligation to submit to drug testing will end after two (2) consecutive years of testing without a positive finding.
j. A positive finding on a drug test will return Emily Stephens to Step 1 possession rights.

The MSA was dated January 29, 2014, and filed with the court on January 30, 2014.

On October 28, 2014, the trial court held a hearing on Father's third amended motion to enter a final order incorporating the terms of the MSA. At that hearing, Mother's attorney essentially asked the court to either declare that as of the date of the final order Mother was already entitled to Step 2 possession, or provide a specific date on which Mother's Step 2 possession would begin. To support the request, Mother's attorney argued that Mother had been having supervised visits "since even before January" and had not had a positive drug test since she began testing in June 2014. Father's attorney made two main arguments in response. First, Father's attorney's primary argument was that Mother's request required the submission of evidence and was outside the scope of a hearing on his motion to enter the final order. Alternatively, Father's attorney explained that it was Father's position that Mother was still at Step 1 with respect to possession because she had not complied with the random monthly drug testing requirements under the MSA. After those arguments the following exchange occurred:

THE COURT: Isn't the start date January 29th?

[Father's Counsel]: I thought that's what we said at the very beginning since the date of the MSA.

THE COURT: It says, Step 1 will continue for 10 consecutive weeks beginning January 29th.

[Mother's Counsel]: So she would now be in Step 2 was my understanding.

THE COURT: According to the plain language in the order once I sign it, she would be in Step 2.

[Father's Counsel]: If she's complied.

THE COURT: If she's complied with everything.

[Father's Counsel]: That's an enforcement issue.

THE COURT: So the Court is not going to get involved in that. . . .

At the conclusion of the hearing the trial court signed a final order that incorporates the terms of the MSA, except that with respect to Mother's drug testing, the MSA states that Mother "will submit to random standard 10 panel monthly drug tests," but the order states that Mother "will submit to random standard 10 panel monthly drug tests at the request of SurScan." (Emphasis added.)

Approximately five weeks later, Mother filed a motion for enforcement of possession and access. In her motion Mother argued that she was in Step 2 under the court's final order and that Father had failed to comply with certain terms of the order, including refusing to allow Step 2 visitation. Mother sought to have Father "held in contempt, jailed, and fined." Father filed an answer in response and argued, among other things, that the final order "is incapable of enforcement, in that it is ambiguous and is not clear and specific enough in its terms that [Father] knows what duties or obligations are required."

The trial court held a hearing on Mother's motion for enforcement. Several witnesses testified, including Mother and Father. Mother testified that she signed the MSA in January and then checked herself into rehab in June. According to Mother, she has been sober since June 9, 2014, which was her first day in rehab. Mother also testified that she has taken several drug tests since June and they have all been negative. Mother also acknowledged, however, that she had not undergone the drug testing required under the order—namely, random drug testing at SurScan.

The parties disagreed about what was required for Mother to move to Step 2 possession. More specifically, Mother's counsel argued that she should be in Step 2 because she had not had a positive drug test since she started to undergo certain testing after her sober date in June. Father's counsel, on the other hand, argued that Mother was still in Step 1 because she had not submitted to the random drug testing required by the order. Nevertheless, it is undisputed that their differing interpretations created ongoing conflicts regarding visitation, including conflicts that arose in the presence of H.W.G.

At the conclusion of the hearing, the trial court denied the motion for enforcement, but explained that for the welfare of H.W.G., the court intended to enter a temporary order pursuant to section 157.374 of the Texas Family Code stating that Mother was now in Step 4 possession under the order:

The Court denies the Motion for Contempt. However, the Court finds that the present arrangement under this Order agreed to by the parties is [sic]—the MSA—raises a serious immediate question concerning the welfare of the child.

Whatever harm that might befall this child because of the mother not showing up for a drug test or not—or being 15 minutes late or not sending 24 hours' notice is

far offset by the damage caused to the emotional and mental stability of this child by the ongoing continuous serious conflict between the mother and the father.

Therefore, under Section 157.374 of the Family Code, the Court is authorized to enter a Temporary Order, and the Court is going to enter a Temporary Order to the effect that we are now in Step 4 of the Order that was entered on October 28th.

That means that [Mother] now has unsupervised possession pursuant to the standard possession order.

After the hearing the trial court signed an order concerning visitation dated December 19, 2014. That order, however, does not state that it is an order pursuant to section 157.374, nor does it include any findings concerning the welfare of H.W.G. Instead, the order states that the trial court "finds that [Mother] has satisfied all prerequisites to advance to Step 4 visitation" and that, effective immediately, Mother's visitation "shall be in accordance with Step 4 visitation."¹ Father appeals from that order.

1 On Father's motion, we subsequently entered an order staying the trial court's order pending further order of this Court.

ISSUE ON APPEAL

On appeal Father argues that the trial court abused its discretion by signing an order stating that Mother has satisfied all prerequisites to advance to Step 4 visitation and awarding Mother additional possession because (1) no party requested it, (2) there was no notice that it was being considered, (3) there was no evidence to support it, (4) section 157.374 relates to habeas corpus proceedings and does not apply here, and (5) the order impermissibly modified a final order that was based on an irrevocable mediated settlement agreement. Mother did not file an appellee's brief.

STANDARD OF REVIEW

Most appealable issues in a family law case are evaluated under an abuse-of-discretion standard. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. Id.

In family law cases, the abuse-of-discretion standard of review overlaps with the traditional sufficiency standards of review; as a result, insufficiency of the evidence is not an independent ground of reversible error, but instead constitutes a factor relevant to our assessment of whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id.

ANALYSIS

Although neither party requested it, the trial court found that Mother satisfied all of the prerequisites to advance to Step 4 visitation. The undisputed evidence, however, does not support that finding. Under the terms of the MSA, one prerequisite for Mother to advance beyond Step 1 visitation is that she submit to "random standard 10 panel monthly drug tests." And it is undisputed that this has not occurred.² As a result, we conclude that the evidence is insufficient to support the trial court's finding.

2 The fact that the trial court's order added the phrase "at the request of SurScan" does not alter our conclusion. Under the MSA Mother agreed that she "will submit to random standard 10 panel monthly drug tests." --------

The requirement that Mother undergo random monthly drug testing was a central provision of the parties' MSA. Under Texas law, an MSA is generally binding on the parties if the agreement

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and

(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

TEX. FAM. CODE ANN. § 153.0071(d) (West 2014). And subject to a very narrow exception for cases involving family violence, if an MSA is binding on the parties, a trial court is generally required to enter judgment on it. Id. § 153.0071(e), (e-1); see also In re Lee, 411 S.W.3d 445, 452-59 (Tex. 2013) (orig. proceeding) (holding trial courts are not permitted to deny entry of judgment on an MSA based on the best interest of the child). A trial court has discretion to provide any clarification necessary to implement the terms of an MSA, but it does not have discretion to substantially alter the terms. See In re Lee, 411 S.W.3d at 458 n.17.

By declaring that Mother satisfied all of the prerequisites to advance to Step 4 visitation on this record, the trial court substantially altered the MSA and abused its discretion. See generally TEX. FAM. CODE ANN. § 153.0071(e); In re Lee, 411 S.W.3d at 452-59.

CONCLUSION

We reverse the order concerning visitation and remand this case for further proceedings consistent with this opinion.

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE 150114F.P05

JUDGMENT

On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-55837-2009.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Schenck participating.

In accordance with this Court's opinion of this date, the order concerning visitation is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellant Michael Gibb recover his costs of this appeal from appellee Emily Stephens. Judgment entered this 25th day of March, 2016.