Opinion issued July 19, 2012.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                             NO. 01-11-00393-CV
                           ———————————
                 PAMELA ROCHELLE KINNEY, Appellant
                                       V.
                  CHARLES PATRICK BATTEN, Appellee



                   On Appeal from the 387th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 06-DCV-151570



                         MEMORANDUM OPINION

      Pamela Rochelle Kinney and Charles Patrick Batten had a brief relationship

that produced a child, born in December 2005. After a paternity test confirmed

that Batten was the father, the Texas Attorney General’s Office began this suit to
establish child support.    The trial court entered temporary orders designating

Kinney as the sole managing conservator, requiring Batten to pay monthly child

support and allowing Batten supervised visitation with the child. Kinney and

Batten filed counter-petitions to establish their rights and obligations in parenting

the child. The parties tried the case to the bench, and the trial court decided that

joint managing conservatorship was in the best interest of the child. The court

entered a standard possession order and made findings of fact and conclusions of

law supporting its decisions. Kinney appeals, contending that the trial court erred

in: (1) designating the parties as joint managing conservators; (2) entering a

standard possession order; and (3) awarding Batten his attorney’s fees. Kinney

also complains that the trial court lacked impartiality. We hold that the trial court

did not abuse its discretion in ordering a joint managing conservatorship and

standard possession, or in awarding Batten his attorney’s fees. We further hold

that Kinney waived her judicial bias challenge by untimely raising it. We therefore

affirm.

                                   Background

      The parties hotly contested much of the evidence relating to their dispute. It

is undisputed, however, that Batten was not present at the child’s birth; he saw his

daughter for the first time a month later, when he submitted to a paternity test. He

visited the child a few times.

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      This suit began in August 2006, when the child was nine months old. A

little over a year later, the trial court entered temporary orders awarding Batten

supervised visitation with the child one Sunday morning per month. The trial court

placed these restrictions on Batten’s visitation based on Kinney’s allegations that

Batten had tried to poison her several times by giving her food contaminated with

codeine, a medication to which Kinney was allergic. Kinney alleged that Batten

would bring pastries or other food to her when he came to visit, and she would

become ill within a few days after she consumed the food, to the point that she

required hospitalization. Kinney also alluded to a toxicology report concluding

that her hair follicles tested positive for the presence of codeine.       She never

proffered the report or any medical or police records to corroborate her allegations.

      Batten denied Kinney’s accusations. At the time the trial court entered the

temporary orders in February 2008, Kinney had filed several police reports, and

her complaints were the subject of a criminal investigation by the Sugar Land

Police Department. Ultimately, however, no charges were filed against Batten.

      Beginning in late 2009, Batten began to visit the child according to the

schedule set out in the temporary orders. In the twelve months preceding trial,

Batten visited with the child seven out of twelve possible times. Kinney testified

that Batten made very little effort to visit the child; Batten responded that Kinney

had denied him access to the child on the Sundays that he did not visit.

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      The trial court entered judgment that named both Batten and Kinney joint

managing conservators of the child and included a standard possession order.

Relevant to this appeal, the trial court made the following findings of fact and

conclusions of law:

    The evidence was legally and factually insufficient to overcome the

      presumption that it is in the best interest of the child that both parents should

      be appointed joint managing conservators of the child.

    Entry of a standard possession order for Charles Patrick Batten effective on

      entry of final judgment [i]s in the best interest of the child because there is

      no proven reason to deprive him of that right.

    The restrictions on Batten’s visitation set forth in the March 2008 temporary

      order resulted from serious allegations concerning Batten’s conduct, namely

      Kinney’s uncorroborated testimony that Batten attempted to harm her on

      several occasions by providing her with contaminated food.

    Charles Batten denied Kinney’s accusations and, by the time of the 2010

      trial, no charges had been filed. The trial court was not persuaded that

      Batten posed a threat to Kinney’s safety and welfare or to the child.

    Kinney had consistently tried to interfere with Batten’s access to the child,

      so that it was in the child’s best interest to place a geographic restriction on



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      Kinney’s residence in Fort Bend County and Batten’s residence in Collin

      County to promote joint conservatorship.

                                     Discussion

I.    Standard of Review for Decrees Affecting the Parent-Child Relationship

      Trial courts have wide discretion with respect to custody, control,

possession, support, and visitation matters involving the child.          Gillespie v.

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (custody); Holley v. Holley, 864

S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (child

support). We review a trial court’s decision on custody, control, possession, and

visitation matters for an abuse of discretion, and reverse the trial court’s order only

if we determine, from reviewing the record as a whole, that the trial court’s

decision was arbitrary and unreasonable. Patterson v. Brist, 236 S.W.3d 238, 239–

40 (Tex. App.—Houston [1st Dist. 2006, pet. dism’d) (citing Turner v. Turner, 47

S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). We also apply

the abuse-of-discretion standard to review a trial court’s determination of

conservatorship. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie,

644 S.W.2d at 451). We view the evidence in the light most favorable to the trial

court’s decision and indulge every legal presumption in favor of its judgment.

Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ

denied). We will reverse only if trial court abused its discretion by acting without

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reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108,

109 (Tex. 1990). There is no abuse of discretion if some evidence supports the

decision. Holley, 864 S.W.2d at 706.

      A.     Rights of Joint Conservatorship

      In determining conservatorship and possession issues, the best interest of the

child is always the primary consideration. TEX. FAM. CODE ANN. § 153.002 (West

2008); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). “The public policy of this state

is to: (1) assure that children will have frequent and continuing contact with

parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the

parents have separated or dissolved their marriage.”          TEX. FAM. CODE ANN.

§ 153.001(a) (West 2008). The burden of proof in conservatorship cases is a

preponderance of the evidence. Id. § 105.005 (West 2008); Monroe v. Alts. in

Motion, 234 S.W.3d 56, 65 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

      The following factors are reviewed to determine whether the presumption in

favor of joint managing conservatorship has been rebutted: (1) benefits to the child,

(2) the cooperative decision-making ability of the parents, (3) geographical

proximity, (4) the parents’ ability to promote a positive relationship with the other

parent, (5) the parents’ prior child-rearing participation, and (6) any other relevant

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factor. See TEX. FAM. CODE ANN. § 153.134(a) (West 2008); see also In re

Marriage of Bertram, 981 S.W.2d 820, 825 (Tex. App.—Texarkana 1998, no pet.).

      Kinney’s contention that the trial court erred in concluding that joint

managing conservatorship is in the best interest of the child is premised on her

uncorroborated testimony that Batten had tried to poison her. Kinney mistakenly

characterizes the testimony as uncontradicted. Batten plainly denied having made

any such attempt, and Kinney neither produced the toxicology report she claimed

existed nor provided any evidence linking Batten to the criminal act that she

alleged. When there is conflicting evidence, it is the province of the factfinder to

resolve such conflicts. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).

The trial court acted within its discretion in discounting Kinney’s testimony in this

matter, as well as other parts of Kinney’s uncorroborated testimony that cast a

negative light on the quality of Batten’s interaction with the child.

      B.     Standard Possession Order

      As with joint managing conservatorship, the Texas Family Code creates a

presumption that the standard possession order, which provides for a parent’s

regular and reasonable minimum possession of a child, is in the child’s best

interest. See TEX. FAM. CODE ANN. § 153.131 (West 2008); In re V.L.K., 24

S.W.3d 338, 339–40 (Tex. 2000); In re K.R.P., 80 S.W.3d 669, 675 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied).        Given the lack of corroboration for

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Kinney’s accusations against Batten and the contested evidence concerning her

obstruction of Batten’s access to the child, the trial court was entitled to disregard

Kinney’s testimony and find Batten’s testimony to be credible. We hold that the

trial court could have reasonably concluded that Kinney failed to rebut the

presumption that the standard possession order was in the child’s best interest. See

TEX. FAM. CODE ANN. § 153.252 (West 2008) (creating rebuttable presumption

that standard possession order, which provides reasonable minimum possession of

child for parent named joint managing conservator, is in child’s best interest).

Accordingly, the trial court’s award of standard possession to Batten does not

constitute an abuse of discretion.

II.   Attorney’s Fee Award

      Kinney next complains that the trial court erred in awarding Batten his

attorney’s fees and expenses. Under the Family Code, the trial court “may render

judgment for reasonable attorney’s fees and expenses” in suits affecting the parent-

child relationship like this one. See TEX. FAM. CODE ANN. § 106.002 (West 2008).

Batten requested attorney’s fees and expenses in his pleadings.

      Kinney contends that the trial court lacked the authority to award Batten his

attorney’s fees and expenses because the findings of fact and conclusions of law

refer only to Texas Rule of Civil Procedure 131, which provides that “[t]he

successful party to a suit shall recover of his adversary all costs incurred therein,

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except where otherwise provided.” TEX. R. CIV. P. 131. Kinney correctly observes

that this conclusion supports the trial court’s award of costs. The trial court

concluded that “Batten is considered the ‘successful’ party to this case as

contemplated by Tex. R. Civ. P. 131 because he received a favorable ruling.”

      The trial court’s reference to Rule 131 in this conclusion, however, does not

constrain its authority to award attorney’s fees and expenses under the Family

Code. The trial court addresses its authority to award attorney’s fees and expenses

in other findings and conclusions. In particular, the trial court found that good

cause supported an award of attorney’s fees incurred by Batten for his counsel’s

representation in the case, and that the amount of the award was supported by

testimony that it was both reasonable and necessary.

      Kinney also challenges the trial court’s finding of good cause, claiming that

she, too, was successful because she received an adjudication of parentage and

child support. Batten, however, did not resist paternity testing and acknowledged

that he was the child’s father by signing a statement of paternity in 2006. Kinney

overlooks the main thrust of her efforts in the litigation, which was to prevent

Batten from gaining joint managing conservatorship and possessory rights. The

trial court did not abuse its discretion in concluding that Batten prevailed in the

main disputes addressed in the suit.




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III.   Denial of Motion to Recuse

       In her appellate brief, Kinney makes various allegations of bias against the

trial judge who presided over the case.         Texas Rule of Civil Procedure 18b

provides the circumstances under which a judge should recuse from a case. Gill v.

Tex. Dep’t of Crim. Justice, Inst’l Div., 3 S.W.3d 576, 579 n.3 (Tex. App.—

Houston [1st Dist.] 1999, no pet.); see TEX. R. CIV. P. 18b. Rule 18a sets forth the

procedural requirements for seeking the recusal or disqualification of a trial judge.

See Barron v. Att’y Gen., 108 S.W.3d 379, 382 (Tex. App,—Tyler 2003, no pet.);

Gill, 3 S.W.3d at 579 n.2; see also TEX. R. CIV. P. 18a.                 Among other

requirements, Rule 18a requires that a motion to recuse be filed at least ten days

before the date set for trial or other hearing, be verified, and state with particularity

the grounds for recusal. TEX. R. CIV. P. 18a(a). Kinney did not file a written

motion to recuse the trial judge until on or about January 13, 2011, after the trial

judge hearing this case had ruled and after she had moved for new trial.1

       A party who fails to comply with Rule 18a’s requirements fails to preserve

any issue for appeal. Barron, 108 S.W.3d at 382; Gill, 3 S.W.3d at 579. We hold




1
       The record does not contain a written motion to recuse the trial judge, but
       Kinney’s counsel alleges judicial misconduct in arguing the motion for new trial
       on that date. The record contains an order dated April 5, 2012 denying her motion
       to recuse filed in the case signed by the presiding judge of the second judicial
       administrative region.
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that Kinney waived her complaints concerning judicial bias by failing to timely file

a motion to recuse the trial judge.

                                      Conclusion

      We hold that the trial court did not abuse its discretion in ordering a joint

managing conservatorship and standard possession, or in awarding Batten his

attorney’s fees and expenses. We further hold that Kinney waived her judicial bias

challenge by untimely raising it. We therefore affirm the judgment of the trial

court. We deny all pending motions as moot.



                                               Jane Bland
                                               Justice

Panel consists of Justices Bland, Massengale, and Brown.




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