In Re: R.C.S.

The appellant contends the trial court had no subject matter jurisdiction to change the conservatorship arrangement set forth in its original decree of divorce. The appellant argues the trial court erred in denying two motions to recuse, failing to equalize the peremptory challenges given to each party, overruling an objection to evidence of racial bias, and awarding both appellee and the ad litem their attorney's fees. This court affirms.

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Click here for the full text of this decision FACTS:Thomas and Pamela Staley divorced in May 2002. The trial court named both parents as joint managing conservators of the couple’s four children, but neither parents was granted the right to establish the primary residence of the children. Instead, the agreement stated that the primary residence would be at either of the parent’s houses: one in Dallas County, the other in Collin County. The decree further ordered that the children were to attend a particular private school. Three months later, Pamela petitioned to modify the parent-child relationship. She said her circumstances had materially and substantially changed because her mother had become very ill, and Pamela needed to go care for her in Decatur. Pamela asked to be designated as the conservator with the exclusive right to determine the children’s residence without regard to geographical limitation. Alternatively, she asked that the children’s primary residence be moved to Wise County or contiguous counties. Pamela also asked that the children be allowed to attend a different school. Thomas filed a counter-petition to modify the parent-child relationship, asking for the same rights, though with Collin County or contiguous counties being designated as the children’s primary residence. The issue of primary residence was tried by a jury. The ad litem who had been appointed for the children was given six peremptory challenges. He elicited testimony from one of the children at trial that the child had been around Thomas on an evening where Thomas was drinking heavily and started making racial comments. Thomas nonsuited his claims. On the sole issue of whether Pamela could be named as the conservator with exclusive rights to determine primary residence, the jury said she could. HOLDING:Affirmed. Though Thomas argues that the trial court lacked jurisdiction � due to the lack of a sufficient affidavit under Family Code 156.102 � the court says it is unnecessary to address whether this failure is jurisdictional because 156.102 doesn’t apply to Pamela’s petition. This section is application only to suits seeking to “modify the designation of the personal having the exclusive right to determine the primary residence.” Because the divorce decree did not name a person with the right to determine the children’s primary residence, Pamela’s suit sought an order designating such a person in the first instance. It was not a modification of an existing order and 156.102 would not apply. The court acknowledges that 156.102 and others are designed to promote stability. By bringing suit to designate a conservator with the right to determine the children’s primary residence, however, Pamela was actually seeking to bring the divorce decree into compliance with the requirements of the code. Rather than seeking to disrupt the stability of the children’s custody, Pamela sought instead to establish the stability that is created by vesting control of the children’s residency in a single conservator. The court next addresses Thomas’ two motions to recuse. The first sought to recuse the associate judge who had just been assigned to the case. The second sought to recuse the same judge after he took the district court bench where the parties’ divorce was pending. The court holds that Thomas has not made an argument, and does not point to any evidence, demonstrating that the motion was erroneously denied because of lack of evidence of bias or prejudice. Thomas makes two arguments regarding the ad litem. In one, he argues that the ad litem and Pamela were aligned, so the ad litem should not have been granted his own peremptory challenges. The court finds no statements, filings or other actions establishing that the ad litem’s representation was so aligned with Pamela’s interest so as to justify curtailing the number of peremptory challenges he was allowed. The fact that the ad litem was advocating for a change in the conservatorship arrangement does not necessarily mean an alignment with Pamela. In Thomas’ second argument, he says the trial court erred in overruling his objection to the ad litem’s solicitation of testimony from the child about Thomas’ drinking and racial comments. The court finds nothing in the cases cited by Thomas to suggest that evidence of a party’s racial prejudice is inadmissible, particularly when the issue before the jury is that party’s custody of the children. The court upholds the award of attorneys’ fees to Pamela’s attorney, finding nothing in the trial court’s order to suggest that its award was made as a result of perceived obligation rather than an exercise of discretion. OPINION:Morris, J.; Morris, Francis, and Lang-Miers, JJ.

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