Affirmed and Memorandum Opinion filed November 22, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00016-CV

                         IN THE INTEREST OF A.I.F.


                   On Appeal from the 311th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-60338

                 MEMORANDUM                     OPINION


      In this suit affecting the parent-child relationship, Father asked for
modification of the order granting Mother sole managing conservatorship of their
child A.I.F. and limiting Father’s access. The jury found that the order should not
be modified to appoint Father as the sole managing conservator or to appoint both
parents as joint managing conservators.       Father’s request for an expanded
unsupervised standard possession order was heard by the trial court, and the trial
court found that Father’s access to the child instead should be further restricted.
Because the record does not support Father’s challenges to the judgment, we
affirm.

                                       I. Facts

      According to Father, Mother is not biologically related to their son A.I.F.,
who was conceived by a surrogate. Father and Mother were divorced in November
2013, and Mother was awarded sole managing conservatorship.                Father was
permitted only supervised visitation for twelve hours each week.

      A few months later, Father filed a motion to modify possession and access to
the child. The issue of conservatorship was tried to a jury over two or three days,
and the jury failed to find that conservatorship should be changed. After Father’s
request for expanded access was tried to the bench, the trial court rendered final
judgment limiting Father’s supervised visitation to ten or twelve hours per month.
The trial court denied Father’s motion for new trial, and Father timely appealed.

                                II. Issues Presented

      Father presents ten issues for our review, six of which concern the trial of his
requests to modify the orders concerning his possession of, and access to, A.I.F. In
his first and fourth issues, he asserts that the trial court based its judgment on false
or subjective statements or reports by Mother or by counsel. In his third and sixth
issues, he argues that the trial court erroneously excluded evidence. In his fifth
issue, he complains that the court-appointed amicus attorneys failed to present
evidence that he and A.I.F. were emotionally abused, and in his eighth issue, he
contends that Mother took A.I.F. out of the country on false pretenses.

      Father’s remaining four issues concern matters before, after, or incidental to
the trial court’s judgment on Father’s modification requests. In his second issue,
he contends that the trial court did not want to hear Father’s motion for new trial.

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He contends in his ninth issue that two court-appointed amicus attorneys charged
excessive fees. In his seventh issue, he argues that the associate judge who signed
the original divorce decree did not meet the constitutional requirements to be
appointed to that position, and in his tenth issue, he challenges the judgment of a
California trial court in an unrelated personal-injury case.

      In response, Mother contends that this is a frivolous appeal and asks to be
awarded damages.

      Rather than addressing Father’s issues in the order briefed, we begin by
considering the issues that would have arisen during the trial of his modification
requests. Because the award of amicus attorney’s fees is an incidental matter
addressed in the same judgment, we will then discuss that issue. After that, we
will consider Father’s post-trial issue, that is, his complaint about a statement made
by the trial court at the hearing on his motion for new trial. We will then address
Father’s complaints about judgments more removed from the modification order
before us, from the divorce decree two years earlier, to a personal-injury suit
twenty years earlier. After disposing of Father’s issues, we will rule on Mother’s
request for sanctions.

               III. Father’s Issues Concerning Trial Proceedings
      Regarding Father’s complaints of (a) allegedly false or subjective statements
or reports, (b) evidentiary rulings, (c) the amicus attorneys’ failure to present
evidence, and (d) Mother’s representations concerning A.I.F.’s travel abroad, our
disposition of these issues is dictated by the presumption arising from an
incomplete reporter’s record. Specifically, the reporter’s record contains only a
transcript of the hearing on Father’s motion for new trial and the exhibits from that
hearing and from trial.


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      A partial reporter’s record sometimes suffices. If the parties have filed a
written stipulation agreeing on the contents of a partial record, then we will
presume that the agreed record contains “all evidence and filings relevant to the
appeal.” TEX. R. APP. P. 34.2. The parties also have the option to file an agreed
statement of the case. See TEX. R. APP. P. 34.3. Even without an agreement
between the parties, the appellant can request a partial reporter’s record and
“include in the request a statement of the points or issues to be presented on appeal
and will then be limited to those points or issues.” TEX. R. APP. P. 34.6(c)(1). But
in the absence of an agreement between the parties or a statement of the appellant’s
issues to be presented on appeal, “we must presume that the omitted portions of the
record are relevant and would support the judgment.” Mason v. Our Lady Star of
the Sea Catholic Church, 154 S.W.3d 816, 822 (Tex. App.—Houston [14th Dist.]
2005, no pet.).

      Because the record before us does not contain the parties’ agreement to a
partial reporter’s record, an agreed statement of the case, or a statement of Father’s
issues to be presented on appeal, we must presume that the material omitted from
the record would support the trial court’s judgment. See Bennett v. Cochran, 96
S.W.3d 227, 229 (Tex. 2002) (per curiam) (“There is no question that, had Bennett
completely failed to submit his statement of points or issues, Rule 34.6 would
require the appellate court to affirm the trial court’s judgment.”).            Stated
differently, we can hold that the trial court reversibly erred only if it made an error
of law that probably caused the rendition of an improper judgment or probably
prevented Father from properly presenting the case on appeal. See TEX. R. APP. P.
44.1(a). Because we cannot review the testimony offered, the arguments and
objections made, or the grounds for the trial court’s rulings, we cannot say that the
trial court erred or that the error was harmful. We instead presume that the omitted


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portions of the record would show that the factfinders made reasonable credibility
determinations; that there were valid reasons for the trial court’s evidentiary
rulings; that the amicus attorneys fulfilled their duties; and that any errors of law
were harmless. We overrule Father’s first, third, fourth, fifth, sixth, and eighth
issues.

                               IV. Amicus Attorney’s Fees

       Citing Texas Government Code section 36.004(a)(6), Father asserts in his
ninth issue that amicus attorney Laura Arteaga charged fees in excess of the
$1,000.00 per month approved by the Texas legislature.1 Section 36.004(a)(6)
requires a court clerk to prepare monthly reports on court appointments. See TEX.
GOV’T CODE ANN. § 36.004(a)(6) (West Supp. 2016). If a person appointed by the
court to serve in certain capacities is paid more than $1,000.00 in a month for work
on a single appointed case, then the court clerk is to include in the report the
available information on the expenses and number of hours billed for the case by
the person and the person’s employees. See id. This provision does not cap an
amicus attorney’s fees at $1,000.00 per month per appointed case.

       Father also states in his brief that “Arteaga has billed more than $22,000 in
less than 6 months.” He cites no support for this assertion, and the record shows
that Arteaga was awarded $7,189.73 for her services in this proceeding. Even if
we were to read Father’s brief as a complaint that the amount actually awarded was
excessive, we would have to presume that the missing portion of the record
supports the award. We overrule this issue.



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         Although Father also complains of fees charged by amicus attorney Lorri Grabowski,
those fees were awarded in the original divorce decree. This is not an appeal of the 2013 divorce
decree, but an appeal of the 2015 modification order.

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        V. The Trial Court’s Statement at the Post-Judgment Hearing
      In Father’s second issue, he states, “The trial court wanted this case moved
to [the] appeals court and did not want to hear this case for new trial.” This
complaint is directed toward the trial court’s response to a statement made by
Father in response to the trial court’s denial of Father’s motion for new trial. After
the trial court excused the litigants, Father said, “Your Honor, my son is suffering
the consequences of the decision of this Court.” The trial court responded, “Mr.
[name omitted], your appropriate remedies now don’t lie in this Court. Okay?
You’re excused. Thank you.”

      Father does not identify the nature of his complaint about the trial court’s
words, in which the trial court merely restated—correctly—that all of Father’s
requests for relief had been ruled upon. We overrule this issue.

                         VI. The Original Divorce Decree

      In Father’s seventh issue, he states, “The trial court erred by allowing Judge
Robert E. Newey to sign and preside over cases past . . . his retirement age of 75
according to the Texas Constitution, Article 5, Section 1-a.” This statement is
followed by a citation to the last page of Father and Mother’s divorce decree. The
judgment was rendered in the 311th District Court, and was signed by Associate
Judge Robert E. Newey on November 22, 2013. Father names a date as Judge
Newey’s date of birth and asserts that Judge Newey turned 75 before being
appointed as Judge Denise Pratt’s associate judge in 2011.

      The Texas Constitution does indeed state that, with exceptions inapplicable
here, “[t]he office of every such Justice and Judge [of an appellate or district court]
shall become vacant on the expiration of the term during which the incumbent
reaches the age of seventy-five (75) years.” TEX. CONST. art. V, § 1-a(1). The
Texas Family Code further provides that “to be eligible for appointment as an
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associate judge, a person must meet the requirements and qualifications to serve as
a judge of the court or courts for which the associate judge is appointed.” TEX.
FAM. CODE ANN. § 201.002 (West 2014). Father does not discuss the result that
would follow in this appeal—from a different order signed by a different judge—if
Judge Newey’s appointment violated these provisions.

      But, whether Judge Newey’s appointment violated the Texas Constitution or
the Family Code depends on his date of birth, which is a question of fact that was
not litigated in this case. There is neither a ruling nor any evidence on the subject
in the record. Father neither contends that Judge Newey’s date of birth is a fact
that properly may be judicially noticed nor identifies any source from which such
notice is possible. Cf. TEX. R. CIV. P. 21c(a)(3) (listing birth dates among the
sensitive data that generally must be redacted from material filed with a court).
With nothing to review and no relief requested, we overrule this issue.

                 VII. The California Personal-Injury Litigation

      In his last issue, Father states that a California trial court reached an
erroneous judgment in his personal-injury suit based on a rear-end collision in
1994. Because we do not have appellate jurisdiction over the judgment of a trial
court in another state, see TEX. CONST. art. V, § 6(a), we dismiss this portion of the
appeal.

            VIII. Mother’s Request for Frivolous-Appeal Damages

      If an appellate court determines that an appeal is frivolous, it may award just
damages to a prevailing party. See TEX. R. APP. P. 45. Mother argues that this
appeal is frivolous and brought in bad faith, and she asks that we award her
reasonable damages.



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      We decide whether an appeal is frivolous by reviewing the record from the
advocate’s viewpoint to objectively determine whether the advocate had a
reasonable basis to believe the cause could be reversed.             See Glassman v.
Goodfriend, 347 S.W.3d 772, 782–83 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied) (en banc). Even if we determine an appeal is frivolous, an award of
damages is discretionary. Id. Generally, we award such sanctions “only in truly
egregious circumstances.” Sintim v. Larson, 489 S.W.3d 551, 559 (Tex. App.–
Houston [14th Dist.] 2016, no pet.).

      We have considered the record, briefs, and motions on file in this case, and
in keeping with our practice of prudently and cautiously exercising our discretion
to sanction, we overrule Mother’s request and award no damages.

                                 IX. Conclusion

      For the foregoing reasons, we affirm the trial court’s judgment, dismiss
Father’s attempted appeal of a California judgment, and deny Mother’s request for
Rule 45 sanctions.




                                       /s/       Tracy Christopher
                                                 Justice


Panel consists of Justices Boyce, Christopher, and Brown.




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