 
 




                                          In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                              ____________________
                                 NO. 09-16-00252-CV
                              ____________________

                   MICHAEL DAVID BELLOW JR., Appellant

                                            V.

                         COURTNEY BELLOW, Appellee
________________________________________________________________________

                     On Appeal from the 356th District Court
                            Hardin County, Texas
                            Trial Cause No. 54996
________________________________________________________________________

                              MEMORANDUM OPINION

       Michael David Bellow Jr. (David) appeals from the decree dissolving his

marriage to Courtney Bellow (Courtney). The trial court signed an agreed divorce

decree on May 3, 2016. The ten issues presented in this appeal by David concern the

trial court’s authority to act in the case, the trial court’s failure to rule on a pre-trial

motion, an evidentiary ruling in a pre-trial hearing, the trial court’s acceptance of the

parties’ agreement, and the trial court’s rulings on motions for sanctions. We affirm

the trial court’s judgment.

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                               Scope of Assignment

      In issue one, David contends the visiting judge assigned to hear the case

exceeded the scope of his assignment by denying David’s motion for new trial. The

order of assignment provided, in part, as follows:

      This assignment shall continue as may be necessary for the assigned
      Judge to dispose of any accumulated business and to complete trial of
      any case or cases begun during this assignment, and to pass on motions
      for new trial and all other matters growing out of accumulated business
      or cases heard before the Judge herein assigned, or until terminated by
      the Presiding Judge.

David argues the language of the assignment prohibited the visiting judge from

ruling on a motion for new trial. We disagree with David’s construction of the order

of assignment. As it is used in the order in question, “pass” means “[t]o pronounce

or render an opinion, ruling, sentence, or judgment[.]” Pass, Black’s Law Dictionary

(9th ed. 2009). Furthermore, the case cited by David does not support his argument

because the order of assignment in that case was expressly restricted to “tax

dockets,” and therefore, did not vest the visiting judge with the authority to make

any orders in a suit alleging trespass and conversion and involving title to real

property. See In re Nash, 13 S.W.3d 894, 899 (Tex. App.—Beaumont 2000, orig.

proceeding). The order of assignment for the visiting judge presiding in the Bellows’

divorce did not exclude divorce cases. We overrule issue one.


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                              Acceptance of Agreement

      In issue two, David contends the trial court abused its discretion by accepting

a child custody agreement without determining the best interest of the child and

issues of domestic violence and neglect. David refers to allegations he made in an

amended counter-petition and in a motion to modify temporary orders, but he

presented no evidence to support his pleadings in the divorce hearing. In the hearing

on the motion to enter judgment, David’s attorney informed the trial court that David

would not pursue and had waived any affirmative finding of “abuse.”

      The divorce decree states that the trial court “having considered the

circumstances of the parents and of the child, finds that the following orders are in

the best interest of the child.” The decree further states, “It is agreed by the parties

that there is no finding of abuse or neglect, no finding of adultery and no finding of

domestic violence.” Additionally, the decree includes a finding that the provisions

in the decree “relating to the rights and duties of the parties with relation to the child,

possession of and access to the child, child support, and optimizing the development

of a close and continuing relationship between each party and the child constitute

the parties’ agreed parenting plan.” See generally Tex. Fam. Code Ann. §§ 153.007,

153.133 (West 2014).




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      “The trial court is given wide latitude in determining the best interests of a

minor child.” Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We conclude

that the trial court made a best interest determination and did not abuse its discretion

by accepting the parties’ custody agreement. We overrule issue two.

                             Failure to Rule on Motion

      In issue three, David complains that the trial court abused its discretion by

failing to set a motion for a hearing and by failing to determine the issues raised in

the motion. On December 31, 2015, David filed a pro se motion to void all rulings

and judgments made by the trial court after September 21, 2015. An order on motion

for substitution of counsel signed on July 21, 2015, and written objections filed on

January 7, 2016, demonstrate that David was represented by counsel of record at the

time he filed the motion pro se. See Tex. R. Civ. P. 7. The trial court is under no

mandatory duty to rule on motions filed pro se while David was represented by

counsel. See In re Stanley, No. 09-15-00204-CV, 2015 WL 4054451, at *1 (Tex.

App.—Beaumont July 2, 2015, orig. proceeding) (mem. op.). Furthermore, as a

prerequisite to presenting a complaint for appellate review, the record must show

that the complaint was made to the trial court by a timely request, objection, or

motion, and the trial court either ruled or the trial court refused to rule and the

complaining party objected to the refusal. See Tex. R. App. P. 33.1. In this appeal,

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David has not shown that he brought the motion to the attention of the trial court and

requested a ruling. To the contrary, in the hearing on the motion to enter judgment,

David’s lawyer stated, “He doesn’t want any order voided[,] and he doesn’t want

any agreement voided.” Issue three is overruled.

                              Jurisdictional Challenge

      In issue four, David contends that all actions by the trial court after September

21, 2015, are void because the trial court transferred the case to Jefferson County.

On September 17, 2015, David filed a motion to transfer venue in which he alleged

that he could not obtain a fair trial in Hardin County. See generally Tex. R. Civ. P.

257 (allowing for change of venue when there is a prejudice so great against a party

in the county where the suit is pending that he cannot obtain a fair or impartial trial).

In his supporting affidavit, David stated, “I am one of the most politically polarizing

people in Hardin County[,] and it will be impossible to find a jury of twelve people

who do not have a very strong opinion about me that will absolutely impact the

outcome of my custody trial.” At the time, the case was assigned to a visiting judge

and was set for trial on September 21, 2015. The trial court did not sign David’s

proposed order granting a motion for a change of venue. However, on September

21, 2015, the trial court signed an order which stated:




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             On September 21, 2015[,] the Court heard Respondent’s Motion
      to Transfer Venue. The parties agree to a transfer of venue to Jefferson
      County, Texas without any agreement to the terms and statements in
      Respondent’s Motion to Transfer Venue. This transfer of venue is for
      jury trial only. Any future hearings, pretrial hearings or any other
      proceedings will be conducted in Hardin County, Texas.

      On October 7, 2015, the trial court signed an amended notice of jury trial,

which stated:

             The above-mentioned matter is reset for Jury Trial beginning on
      November 16, 2015 at 8:00 a.m. The Jury Trial/Voir Dire will be held
      in the 317th District Court of Jefferson County, Texas beginning on
      November 16 and 17, 2015 at 8:00 a.m. The remainder of the trial will
      be held in the 136th District Court of Jefferson County, Texas
      beginning on November 18, 2015. Jury trial proceedings will be before
      the Honorable Don Taylor, Presiding.

      From the recitals in the trial court’s order of September 21, 2015, it appears

the parties agreed that the jury trial would be held in Jefferson County, but all other

proceedings would occur in Hardin County. The parties settled, however, and the

case was never tried to a jury.

      Typically, an order transferring venue is immediately effective and is final as

to the transferring court thirty days after the order is signed. See In re Sw. Bell Tel.

Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). In this case, however, the

trial court did not sign an order transferring the venue of the case to another county;

rather, the trial court signed an order retaining the case in Hardin County for all

future hearings other than the jury trial, but transferring venue to Jefferson County
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for an anticipated jury trial. The order was contingent upon the occurrence of an

event that did not occur. The trial court conducted the hearing on the motion to enter

judgment and signed the judgment in Hardin County. The trial court signed the order

transferring the case to Jefferson County on July 14, 2016, after the decree was

signed and Courtney filed a suit for modification. See generally Tex. Fam. Code

Ann. §§ 155.201(b) (West Supp. 2017), 156.004 (West 2014). The record does not

establish that the divorce decree is void because the case had been transferred to

another county. Issue four is overruled.1

                                                      Ruling Regarding Expert Witness

              In issue five, David argues the trial court lacked the authority to rule on the

license status of a full-time peace officer who testified as an expert on cell phone

forensics in a sanctions hearing. David argues the validity of the witness’s license,

or lack of a private investigator’s license, was a matter to be determined by the Texas

Department of Public Safety and outside the trial court’s subject-matter jurisdiction.

              David tested the witness’s qualifications as an expert through voir dire

examination. The witness stated that he has a Master Peace Officer license. Although

employed by the Jefferson County District Attorney’s Office, he was not testifying


                                                            
              1
        To the extent other issues in the appellant’s brief incorporate his arguments
under this issue, those issues are overruled.
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in his capacity as an employee of that Office. He stated that his status as a peace

officer satisfied an exemption from a state investigator license requirement. At the

conclusion of the voir dire examination, the trial court overruled David’s objection

that the witness was only exempt from being a licensed private investigator while he

is employed as a law enforcement officer with a law enforcement entity. When the

hearing reconvened after a week-long recess, David testified that he filed a

complaint against the witness with the Texas Department of Public Safety after the

hearing recessed the previous week. Near the conclusion of the hearing, the trial

court observed that “it appears [the witness] is qualified under the law enforcement

exemption to serve in the capacity that he did. And I will so find that he was asked

to come into court and testify as an expert[,] and the court finds that he opened that

gate without any hurdle[.]” The trial court’s comment concerned his earlier ruling

that the witness was qualified to testify as an expert. See generally Tex. R. Evid.

702. The trial court did not issue a decision regarding a matter outside the trial

court’s subject matter jurisdiction. Issue five is overruled.

                                   Sanctions Issues

      Issues six through nine concern the trial court’s rulings on a series of motions

in which Courtney requested that sanctions be imposed for David’s non-compliance

with pre-trial discovery and spoliation of evidence. Courtney filed a motion to

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compel discovery in which she complained that David failed to produce documents

she requested in discovery. The trial court heard the motion on May 19, 2015, and

orally ordered that the residence be made available to Courtney to collect her

personal belongings on May 30, 2015. Additionally, the trial court ordered David to

respond to discovery within two weeks and ordered David to pay $1,500 to

Courtney’s attorney within thirty days of the hearing. For reasons unclear from the

record, the order was reduced to writing on June 4 and again on June 25, 2015.

      On June 29, 2015, Courtney filed a motion for contempt and sanctions in

which she complained that David had not provided the documents he had been

ordered to produce and that he allowed Courtney into the residence on May 30 but

refused to allow her to remove her possessions. In the hearing held on July 7, 2015,

David’s lawyer conceded his discovery responses were late but argued both parties

supplemented their discovery thirty days before the scheduled trial date. At the

conclusion of the hearing, the trial court denied Courtney’s motion to strike but

ordered David to pay Courtney’s attorney $2,500 by July 31, 2015. No written order

appears in the appellate record.

      On October 15, 2015, Courtney filed a third motion for sanctions. She

complained that a cell phone in David’s possession had been tampered with. The

trial court held hearings on November 6 and 13, 2015. David explained that he found

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some old cell phones, plugged them into his computer one at a time, copied the files

onto his computer, and deleted the files from the phones. David claimed the time

stamp for a video may have been created when he emailed a copy to his attorney.

The hearing on the motion to enter judgment took place on April 13, 2016. David’s

attorney requested that the sanctions order be separate from the agreed decree, which

recited that the $3,000 sanctions award was satisfied by a just and fair division of

the marital estate. The parties’ agreed divorce decree states, “The parties have agreed

that the $3,000.00 in sanctions is satisfied by a just and fair division of the parties’

property.” Two days after signing the decree, on May 5, 2016, the trial court signed

the order, which found that David took part in spoliation of evidence of the two

cellular devices and ordered David to pay attorney’s fees of $3,000 to Courtney’s

lawyer.

      David filed a motion for new trial as to the order of May 5, 2016. He argued

that new evidence had emerged since the hearing that Courtney’s expert witness was

under criminal investigation. Additionally, David argued that prior to making its

determination on the issue of spoliation of evidence, the trial court had not

determined David’s intent. The trial court denied the motion for new trial as to the

order of May 5, 2016.




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      In issue six, David complains that the trial court ordered him to pay $2,500 in

attorney’s fees to Courtney’s attorney without reducing the order to writing.

Additionally, he argues that the trial court punished him for failing to comply with

an order that was not reduced to writing until after the compliance dates had passed.

In issue seven, David complains that the trial court signed orders that were identical

as to everything but the date, and he argues that the orders signed on June 4 and 25,

2015, are void because they required him to comply with discovery requests before

the date of either order. Although appearing in the record in duplicate, the orders

require a single payment of $1,500. The amount ordered to be paid was for

Courtney’s attorney’s fees for having to pursue the motion to compel, not for failing

to comply with the order compelling discovery. The July 7, 2015 hearing did not

result in an enforceable written order. Thus, David was not sanctioned for failing to

comply with the trial court’s order by the dates set forth in the orders. Therefore,

David has failed to show that any error in signing the order after the date of

compliance caused the rendition of an improper judgment. See Tex. R. App. P. 44.1.

We overrule issues six and seven.

      In issue eight, David contends the trial court lacked jurisdiction to sign the

order of May 5, 2016, because the agreed decree of divorce signed on May 3, 2016,

contained language that disposed of all parties and claims. However, the trial court

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retained plenary power over the case for a minimum of thirty days after signing the

decree. See Tex. R. Civ. P. 329b(d). Therefore, the trial court had jurisdiction when

it signed the order. We overrule issue eight.

      In issue nine, David argues the trial court abused its discretion by finding that

David engaged in spoliation of evidence without pleadings or evidence to support

the finding, and without a finding that the spoliation was intentional. He further

argues that the trial court abused its discretion when it denied David’s motion for

new trial.

      Spoliation is an evidentiary concept describing a particularized form of

discovery abuse that results in the failure to produce discoverable evidence and the

trial court’s discretion to impose an appropriate remedy when evidence is lost,

altered, or destroyed. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 18, 20 (Tex.

2014). The party seeking a remedy for spoliation must demonstrate that the other

party breached its duty to preserve material and relevant evidence. Id. at 20. The

breach may be intentional or negligent. Id. A trial court may impose an appropriate

remedy, such as an award of attorney’s fees to the harmed party, if it determines that

a party has spoliated evidence. Id. at 21.

      Courtney’s third motion for sanctions alleged, in part, that “[i]n this case,

David Bellow was ordered to provide a cell phone that recorded a video he recorded

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from the device. The phone had no videos and had been altered. Should the Court

impose severe sanctions?” She asked the trial court to make orders “with regard to

the failure to comply with discovery and tampering with evidence[.]” These

pleadings placed David on notice that spoliation was an issue in the sanctions

hearing.

      David cites Brookshire Brothers for the proposition that a party must

intentionally spoliate evidence in order for a spoliation instruction to a jury to

constitute an appropriate remedy. Id. at 23. However, the case before us was not tried

to a jury, and the trial court imposed a sanction authorized by the discovery rules.

See Tex. R. Civ. P. 215.2.

      David argues the trial court’s ruling is not supported by the evidence because

he produced the videos in discovery and had no obligation to preserve the source of

the videos. The trial court expressly ordered David to provide the cellular telephones

for downloading and inspection as there were allegations the videos produced had

been edited. The cellphones produced by David for forensic examination did not

contain the videos, and at least one of the cellphones had been wiped clean of all

data. After hearing David’s offered explanation for why the videos were not on the

phones produced, the trial court could have reasonably disbelieved David’s

explanation and found he either participated in the destruction of such evidence or

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intentionally failed to produce the phones containing the videos. We conclude the

trial court did not abuse its discretion by imposing sanctions.

      David filed a motion for new trial regarding the order of May 5, 2016. See

generally Tex. R. Civ. P. 324(b)(1) (a motion for new trial is required for a complaint

on which evidence must be heard, such as a claim of newly discovered evidence).

The trial court conducted a hearing on the motion for new trial on July 14, 2016.

David presented no evidence to support the factual allegations in his motion for new

trial. The trial court did not abuse its discretion by denying David’s motion for new

trial. We overrule issue nine.

                                  Motion to Quash

      In his tenth and final issue, David contends the trial court abused its discretion

by refusing to consider and rule upon a motion to quash a subpoena and to hold

Courtney in contempt for discovery abuse and abuse of process. Acting pro se,

David filed a “Motion to Quash Subpoena, Contempt, and for Sanctions for

Discovery Abuse/Abuse of Process” on June 2, 2016. For relief, David asked that

Courtney and her attorney be required to provide a sworn accounting of their actions,

that the subpoena be quashed and use of the information be permanently enjoined,

and that Courtney and her attorney be required to pay $20,000 in attorney’s fees and

that Courtney’s attorney be required to pay a $20,000 fine to David.

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       In the hearing held on July 14, 2016, the trial court considered and ruled on

David’s motion for new trial and took up the modification suit before David

mentioned his other motion. David stated that he wanted the trial court to entertain

his motions before ruling on Courtney’s motion to transfer the suit for modification

to Jefferson County. He argued that Courtney’s attorney “created this secret

subpoena under this divorce case and never sent it to the parties.” The trial court

suggested that the matter would be appropriate for consideration in the modification

suit. David responded that Courtney’s attorney “needs to produce any subpoena he’s

done that he never turned over.” He argued the trial court should strike Courtney’s

pleadings because Courtney committed abuse of process because she had “ulterior

motives” for sending a subpoena to a third party. The trial court reminded David that

the trial court had already ruled on the motion for new trial and granted the motion

to transfer.

       David claimed but did not prove that a discovery abuse occurred after the

parties reached an agreement to settle the divorce case. Any error by the trial court

in refusing to rule on the motion before transferring the suit for modification to

Jefferson County did not cause the rendition of an improper judgment because David

failed to prove that he was entitled to the relief he requested. See Tex. R. App. P.

44.1(a)(1). We overrule issue ten and affirm the trial court’s judgment.

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      AFFIRMED.



                                            ________________________________
                                                   CHARLES KREGER
                                                        Justice

Submitted on May 16, 2018
Opinion Delivered June 14, 2018

Before McKeithen, C.J., Kreger and Horton, JJ.




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