In the Interest of M.O., A Minor Child--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00326-CV
IN THE INTEREST OF M.O.
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 1996-CI-02994
Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

This is an appeal from a post-divorce order modifying the parent-child relationship. The movant in the trial court, Patricia Montelongo, contends that the trial court erred: (1) in failing to order Judge Specia's recusal; (2) in overruling her motion for default judgment and/or requests for continuance, discovery and sanctions; (3) in exercising special jurisdiction over the case; and (4) in its assessment of child support and failure to award her attorney's fees and costs. Additionally, Montelongo's attorney, Patricia J. Matassarin, brings an issue on her own behalf, complaining of the trial court's order imposing monetary sanctions against her. We overrule all issues and affirm.

Thomas G. Odiorne brings one cross-issue on appeal, requesting that sanctions be imposed against Matassarin for filing a frivolous appeal. Because Odiorne has waived this issue, we overrule his cross-issue.

Factual and Procedural Background

Patricia Montelongo and Thomas Odiorne were divorced in 1998. In October of 2000, Montelongo filed a "Motion to Modify in Suit Affecting the Parent-Child Relationship." Patricia Matassarin, Montelongo's attorney, served discovery requests on Odiorne. When Odiorne failed to respond, Montelongo filed a motion to compel. At the hearing held on December 22, 2000, Odiorne did not appear. The trial court, thus, granted the motion to compel and ordered Odiorne to pay $300.00 in attorney's fees. In doing so, however, the trial court was unaware that Odiorne had never been served with citation. And, although Matassarin knew that Odiorne had not been served, she failed to so advise the trial court.

Odiorne was eventually served with citation. He then filed a counter-petition to modify, along with a "Motion to Set Aside Orders and for Sanctions Pursuant to Section 10 of the Texas Civil Practice and Remedies Code." After a hearing, the trial court entered an order setting aside its previous orders and assessing attorney's fees as sanctions against Matassarin in the amount of $500.00. Matassarin's interlocutory appeal of the sanctions order to this court was dismissed for lack of jurisdiction. See Matassarin v. Odiorne, No. 04-01-00498-CV, 2001 WL 1479258, at *1 (Tex. App.--San Antonio Nov. 21, 2001, no pet.) (not designated for publication).

Odiorne moved for enforcement of the sanctions order. At the hearing, the trial court granted the motion and ordered Matassarin to pay an additional $1,500.00 in attorney's fees and $88.00 in court costs. Montelongo filed a motion to recuse Judge Specia from hearing further matters in this case. Judge David Peeples heard the motion to recuse and denied it. Montelongo also filed a "Motion for Default Judgment and for Attorney's Fees and Costs and for Sanctions." After a hearing, the trial court denied Montelongo's motions. The court finally heard the merits of the suit on February 15, 2002, and entered an order modifying the child support and terms of possession of the child. Montelongo and Matassarin appeal.

Discussion

A. Recusal

We review the denial of a motion to recuse under an abuse of discretion standard. Tex. R. Civ. P. 18a(f); Chandler v. Chandler, 991 S.W.2d 367, 385 (Tex. App.--El Paso 1999, pet. denied). Although Montelongo's motion to recuse Judge Specia contains a variety of allegations, it essentially contends that Judge Specia should be recused because his rulings were consistently adverse to her and her attorney. At the hearing on the motion to recuse, Judge Peeples went through each of Montelongo's complaints and found that none of Judge Specia's actions rose to a level that would require recusal. We agree.

For recusal to be required, the judge's bias must be extrajudicial and not based upon in-court rulings. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex. App.--Dallas 1989, writ denied). Montelongo's complaints are all directed at Judge Specia's actions and rulings in court; therefore, Judge Peeples did not abuse his discretion in failing to grant Montelongo's motion to recuse.

B. Motion for Default Judgment and/or Requests for Continuance, Discovery, and Sanctions

Montelongo contends that her motion for default judgment, which was essentially a motion requesting "death penalty" sanctions for failure to comply with discovery requests, was erroneously denied. We review the trial court's ruling on sanctions for discovery abuse under an abuse of discretion standard. State Farm Fire & Casualty Co. v. Rodriguez, 88 S.W.3d 313, 326 (Tex. App.--San Antonio 2002, pet. denied). We likewise review the denial of a motion for continuance for abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re H.R., 87 S.W.3d 691, 701 (Tex. App.--San Antonio 2002, no pet.).

A trial court may grant "death penalty" sanctions, or sanctions that terminate or inhibit the presentation of the merits of a party's claims, under Texas Rule of Civil Procedure 215. See Tex. R. Civ. P. 215; Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). In imposing death penalty sanctions, the trial court must ensure the sanctions are "just." TransAmerican Natural Gas v. Powell, 811 S.W.2d 913, 916 (Tex. 1991). The factors for the trial court to consider are: (1) the sanction must bear a direct relationship to the offensive conduct; (2) the sanction must not be excessive; (3) the trial court must first impose a less stringent sanction; and (4) the trial court should not deny a trial on the merits, unless it finds that the sanctioned party's conduct justifies a presumption that its claims or defenses lack merit and that it would be unjust to permit the party to present the substance of the position which is the subject of the discovery abuse. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849-50 (Tex. 1992). The record must show that the trial court considered the availability of less stringent sanctions. Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993).

Montelongo's motion for default judgment requested death penalty sanctions against Odiorne for failure to comply with discovery requests and for attempting to thwart discovery. Her alternative motion for continuance was also based on her inability to obtain responses to discovery. Specifically, Montelongo complained that Odiorne was not forthcoming with complete tax and financial information and that Odiorne's counsel refused to allow Mrs. Odiorne's deposition to be completed and refused to allow Odiorne to testify at deposition. At the hearing on the motion for default judgment, Montelongo's attorney argued to the judge that, despite never filing motions to compel discovery, she nevertheless sought death penalty sanctions under rule 215. Odiorne's attorney argued that she, along with Mr. and Mrs. Odiorne, walked out of depositions because Montelongo's attorney continued to request irrelevant information regarding Mrs. Odiorne's past employment and income. She further stated that all discovery had been fully and completely answered, but that Montelongo seemed to want things that do not exist. Apparently believing there was no discovery abuse justifying death penalty sanctions, the trial court denied the motion for default judgment. Given the severity of death penalty sanctions and the lack of evidence that would meet any of the factors the trial judge must consider before imposing such sanctions, we find no abuse of discretion. We likewise find no abuse of discretion in the trial court's overruling of Montelongo's motion for continuance.

C. Judge Specia's Exercise of "Special Jurisdiction"

Montelongo urges reversal based upon the trial court's exercise of "special jurisdiction" over this matter in violation of Bexar County Local Rules. The Family Code fixes "continuing, exclusive jurisdiction" in the court that renders the "final order" in a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. 155.001(a) (Vernon 2002); In re Garza, 981 S.W.2d 438, 440 (Tex. App.--San Antonio 1998, orig. proceeding). Thus, the court with continuing, exclusive jurisdiction in this case is the 225th Judicial District Court, Judge Specia's court, the court in which the divorce decree was entered. In In re Garza, 981 S.W.2d at 440-41, we discussed the issue of "continuing, exclusive jurisdiction" as prescribed by the Family Code and its relationship to the Bexar County centralized docket system. In that case, Judge Specia took exclusive control of a custody and support case because he felt "there is a need for one judge to finish this matter" instead of it "bouncing around between different judges" as it had been allowed to do under the Bexar County system. Id. at 439-40. The relator in that case contended that because the case was actually set in the 131st and not the 225th Judicial District Court, Judge Specia had no jurisdiction over the case. We held that "the statutory and constitutional exchange-of-benches provisions authorize any district judge in the county to rule on custody and support matters so long as the record is clear that the SAPCR is filed in the court of continuing, exclusive jurisdiction, and that the judge is acting for that court." Id. at 442. Thus, Judge Specia was acting for the 131st Judicial District Court and, therefore, had jurisdiction over the case. We also expressed concern about the interplay between the Family Code and the Bexar County system, indicating Judge Specia "wisely observed, sometimes 'there is a need for one judge to finish [the] matter.'" Id.

In this case, Judge Specia had no need to act for any other court as his court, the 225th, was the court with "exclusive, continuing jurisdiction." Montelongo's complaint, however, is not that Judge Specia lacked jurisdiction, but rather that Judge Specia should not have set the matter in his own court. Judge Specia, however, appeared to be acting similarly to the way he acted in In re Garza, recognizing the need for one judge to hear the matter instead of having it bounce around to various judges. His actions are in keeping with the "spirit of the Family Code's exclusive jurisdiction statute and the public policy purposes intended to be served by it." Id. at 442. We find no abuse of discretion.

D. Assessment of Child Support

Montelongo contends that the trial court erred in refusing to assess child support based upon a reasonable interpretation of presumed income. A trial court's decision to modify child support will not be reversed absent a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re S.B.C., 952 S.W.2d 15, 17 (Tex. App.--San Antonio 1997, no writ). The record on appeal, however, contains no reporter's record of the hearing on the merits and no separate findings of fact and conclusions of law, apart from those appearing within the order.

We note that the Family Code requires the court to make a record during contested hearing in suits affecting the parent-child relationship, unless waived by the parties and with the consent of the court. Tex. Fam. Code Ann. 105.003 (Vernon 2002). There is nothing in the record indicating whether a record was made of the final hearing on the merits. Nor is there any indication in the record that Montelongo requested a reporter's record of the final hearing. Moreover, Montelongo has not complained on appeal about the lack of a reporter's record. Because Montelongo has apparently decided to proceed without obtaining a reporter's record of the final hearing on the merits, we must presume the evidence contained in the record supports the trial court's ruling. In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.--Amarillo 1999, no pet.). We, therefore, find no abuse of discretion.

E. Sanctions Against Matassarin

Matassarin complains of the trial court's assessment of monetary sanctions against her in the total amount of $2,000.00 in attorney's fees and $88.00 in costs. We review the trial court's imposition of sanctions under an abuse of discretion standard. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Rudisell v. Paquette, 89 S.W.3d 233, 236 (Tex. App.--Corpus Christi 2002, no pet.).

Matassarin filed this suit on behalf of Montelongo, but did not immediately request service of citation on Odiorne. Matassarin sent discovery requests to Odiorne and, when he failed to respond, she filed a motion to compel. At the hearing on the motion to compel, upon Odiorne's failure to appear, the trial judge granted the motion and ordered Odiorne to pay $300.00 in attorney's fees. Matassarin failed to inform the trial court that she had not yet obtained service on Odiorne. When Odiorne was finally served with the suit, he filed a motion to set aside the orders and for sanctions pursuant to section 10 of the Texas Civil Practice and Remedies Code. The trial court held a hearing and imposed $500.00 in sanctions against Matassarin. Matassarin argued to the trial court, and continues to argue here on appeal, that she was not required to obtain service of citation on Odiorne. Matassarin is clearly wrong. See Tex. Fam. Code Ann. 156.003 (Vernon 2002) ("A party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation."). Matassarin filed an interlocutory appeal of the sanction order, which this court dismissed for lack of jurisdiction. Because Matassarin refused to pay the sanction, Odiorne filed a motion for enforcement of order imposing sanctions. At the original setting, Matassarin failed to appear, so the hearing was reset. At the second setting, the trial court conducted a hearing in which Odiorne's attorney testified regarding the amount of time and expense incurred in defending against Matassarin's refusal to pay the sanctions and her interlocutory appeal of the sanctions order over which this court had no jurisdiction. The trial court ordered Matassarin to pay an additional $1500 in attorney's fees and $88.00 in court costs.

Section 10.001 of the Texas Civil Practice and Remedies Code provides that the signing of a pleading or motion constitutes a certificate that the pleading or motion is not being presented for an improper purpose; that each contention is warranted by existing law; that each contention has evidentiary support, and that each denial is warranted on the evidence or is reasonably based on a lack of information or belief. Tex. Civ. Prac. & Rem. Code Ann. 10.001 (Vernon 2002). Section 10.002 of the Texas Civil Practice and Remedies Code provides that sanctions may be awarded to a party for attorney's fees and expenses incurred in presenting or opposing a motion under section 10.001. Id. 10.002.

Given Matasssarin's actions in obtaining an order to compel and attorney's fees against Odiorne without first obtaining service of citation on him and in appealing an interlocutory order over which this court had no jurisdiction, we find no abuse of discretion in the trial court's imposition of monetary sanctions against her.

F. Sanctions for Frivolous Appeal

In his cross-issue, Odiorne urges this court, pursuant to Texas Rule of Appellate Procedure 45, to impose sanctions against Montelongo and Matassarin for filing a frivolous appeal. Rule 45 allows an appellate court, after a determination that an appeal is frivolous, to award the prevailing party "just damages." Tex. R. App. P. 45. Typically, the courts have awarded the amount of attorney's fees incurred by the appellee as proven by testimony or affidavit. See, e.g., Smith v. Marshall B. Brown, P.C., 51 S.W.3d 376, 382 (Tex. App.--Houston[1st Dist.] 2001, pet. denied) (appellees awarded $5,000 in attorney's fees which were proven by affidavit); Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 397 (Tex. App.--San Antonio 1999, no pet.) (appellee awarded $5,000 in attorney's fees it proved it would incur if an appeal were filed); Tex. State Taekwondo Assoc. v. Lone Star State Taekwondo Assoc., No. 08-01-00403-CV, 2002 WL 1874852, at *3 (Tex. App.--El Paso 2002, no pet.) (not designated for publication) (although rule 45 does not provide method for proving damages in appellate court, proof by affidavit is proper to establish $7,693.36 in attorney's fees). Odiorne's attorney states in her brief that her reasonable and necessary rate is $175.00 and that she spent in excess of fifty hours on this appeal. She requests at least $7,500.00 in sanctions. Odiorne's attorney, however, did not attach an affidavit to this effect or establish proof, in any manner, of her attorney's fees. We are not inclined to award attorney's fees based on unsworn statements in a brief. For that reason, we find that Odiorne has waived his cross-point on appeal.

Conclusion

For the above-stated reasons, we affirm the trial court's judgment and overrule Odiorne's cross-issue on appeal.

Karen Angelini, Justice