Donald J. Baker v. Lori Rooney--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION

No. 04-04-00476-CV

Donald J. BAKER,

Appellant

v.

Lori ROONEY,

Appellee

From the 216th Judicial District Court, Bandera County, Texas

Trial Court No. 7360-99

Honorable Charles Sherrill, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 19, 2005

AFFIRMED

Appellant Donald Baker appeals from an order rendered in a suit to modify the parent-child relationship. Baker is the father of the children subject to the modification order, C.R.B. and Z.M.B. In the modification order, the court granted appellee Lori Rooney, the children s mother, the exclusive right to establish the children s primary residence without limitation or restriction.

On appeal, Baker asserts the following appellate complaints: (1) the trial court deprived him of his constitutional due process right to a trial by jury; (2) the trial court deprived him of his right to discuss how he fulfilled his duties under the divorce decree and to discuss the terms of the court s decision ; (3) the trial court erroneously tried him in absentia; (4) the trial court abused its discretion in granting Rooney s motion to modify because the evidence is insufficient to show the requested modification would be in the best interest of the children; and (5) the trial court erred by awarding Rooney attorney s fees. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion under Texas Rule of Appellate Procedure 47.4 for the following reasons:

1. In his first issue, Baker argues that the trial court deprived him of his constitutional due process right to a trial by jury at the modification proceeding. Assuming Baker had a right to a jury trial in this suit to modify the parent-child relationship, we cannot conclude the trial court deprived him of such right because Baker never filed a written request for a jury trial as mandated by Texas Rule of Civil Procedure 216. See Tex. R. Civ. P. 216 ( No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance ).

2. In his second issue, Baker argues the trial court deprived him of his right to discuss how he fulfilled his duties under the divorce decree and to discuss the terms of the court s decision. Baker, however, fails to provide the court with either substantive analysis of his legal contentions or citation to authority supporting his contentions. In order to avoid waiver of an issue on appeal, a party must discuss in his brief the facts and the authorities upon which he relies to maintain the issue. In re D.S., 76 S.W.3d 512, 516-17 (Tex. App. Houston [14th Dist.] 2002, no pet.). Because Baker has inadequately briefed this issue, he waived his second complaint. See Tex. R. App. P. 38.1(h).

3. In his third issue, Baker claims the trial court erroneously tried him in absentia. Once again, Baker fails to provide the court with either substantive analysis of his legal contentions or citation to authority supporting his contentions. Baker has therefore waived his third complaint. See id.; In re D.S., 76 S.W.3d at 516-17.

4. In his fourth, fifth, and sixth issues, Baker essentially contends the trial court abused its discretion in granting Rooney s motion to modify because the evidence is insufficient to show the requested modification would be in the best interest of the children. The record shows that since the rendition of the parties divorce decree on January 17, 2000, Rooney has been the sole provider for C.R.B. and Z.M.B. According to the record, Baker has neither assisted Rooney in the care of the children nor provided any financial support to them.

The record shows that circumstances have changed since the rendition of the parties divorce decree. Rooney testified that she has incurred significantly higher expenses in the care of her children since her divorce. According to Rooney, her family is one emergency away from bankruptcy. The record further indicates that Rooney has found new employment opportunities in Wisconsin, which will afford her family the financial security it needs. The new employment will provide Rooney an additional $7,000 to $11,000 of income per year.

The record also reveals that Rooney and her children have an existing family network in Wisconsin, which includes Rooney s parents, siblings, and nieces/nephews. According to Rooney, her family will be able to assist her in caring for C.R.B. and Z.M.B. Finally, the record reveals that despite being in close proximity to his children, Baker hardly exercises the access he is granted to C.R.B. and Z.M.B. We hold the aforementioned evidence is sufficient to support the trial court s finding that allowing Rooney the exclusive right to establish the children s primary residence without limitation or restriction is in the best interest of her children. See Echols v. Olivarez, 85 S.W.3d 475, 481-83 (Tex. App. Austin 2002, no pet.).

4. In his seventh issue, Baker contends the trial court erred by awarding Rooney attorney s fees. Baker, however, fails to provide the court with either substantive analysis of his legal contentions or citation to authority supporting his contentions. Baker has therefore waived his seventh complaint. See Tex. R. App. P. 38.1(h); In re D.S., 76 S.W.3d at 516-17.

The order of the trial court is affirmed.

Catherine Stone, Justice