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Click here for the full text of this decision FACTS:In October 2002, the trial court signed a final decree granting a divorce to Angela M. Blackwell and Mark M. Humble, and naming them joint managing conservators of their children, Mt., a son born in June 1996, and Md., a daughter born in November 1999. The children’s primary place of residence was with Humble. Blackwell had visitation rights. In January 2003, Humble filed a motion for enforcement and a motion to modify the decree, asserting that Blackwell had refused to return the children to Humble’s care after a visit and had threatened Humble in front of the children. Humble asked that Blackwell be held in contempt for violating the divorce decree and sought orders barring her from speaking to him and requiring her to arrange for a third-party to drop off and pick up the children. A hearing was held on Humble’s motion on Feb. 13, 2003. On the morning of the hearing, Humble filed a supplemental petition asking the court to suspend visitation pending a mental health evaluation of Blackwell, alleging that Mt.’s grades had dropped recently, that Mt. seemed stressed and that Blackwell told Md. to say that Betty French, the children’s paternal grandmother and Humble’s mother, had choked her and kicked her. On March 7, 2003, the trial court signed an order requiring third-parties for pick-ups and drop-offs, ordering psychological evaluations of both children, and holding Blackwell in contempt but suspending a 30-day jail sentence if Blackwell complied with the court’s orders, paid $3,000 in attorneys’ fees, refrained from interfering with the psychological evaluations and any recommended treatment, and refrained from communicating with Humble except through the parties’ attorneys. On March 10, 2003, Humble filed an amended supplemental petition, describing more troubling behavior by the children following visits with Blackwell. Humble alleged that the children acted wild and uncontrollable after an extended visit with Blackwell and that Mt. was exhibiting behavior similar to Blackwell’s older son, who was placed in an in-patient psychiatric facility when he was six years old but returned to normal behavior after he was removed from Blackwell’s care. Humble asserted that the children’s troubling behavior diminished when they were away from Blackwell for prolonged periods of time. Humble feared Blackwell would place enormous pressure on the children when they underwent their psychological evaluations and asked the court to suspend Blackwell’s visitation or, alternatively, to order supervised visitations. On March 21, 2003, five days before the hearing on Humble’s motion, Blackwell filed a motion to recuse the trial court judge, Ed Magre, because he and Humble had practiced law together in the past. Magre referred the motion to Judge B.B. Schraub, the presiding judge of the Third Administrative Judicial Region, who denied the motion without a hearing on March 25, 2003, because the motion was not timely filed and did not allege sufficient grounds for recusal. The March 26, 2003, hearing went forward as scheduled. On April 2, 2003, the trial court signed an order limiting Blackwell to two supervised two-hour visits with the children per month and ordering her not to make disparaging remarks about Humble or his family. Because Dr. Frank Pugliese, the psychologist initially selected by the court to evaluate the children, was unavailable, the court ordered that Dr. David Poole evaluate the children within three weeks. The court set a status hearing in 90 days. On May 23, 2003, Humble sent a letter to the trial court in which he stated that Poole’s “reports will be done as soon as he gets a bit of additional information.” On May 30, 2003, the trial court sent Blackwell a letter stating that enclosed with the letter were copies of Poole’s reports; the reports themselves, however, were not included in the record. On June 19, 2003, Blackwell filed a second motion to recuse Magre, stating that he and Humble practiced law together in the past and citing to Texas Rule 18b of Civil Procedure. Blackwell asserted that Magre should have recused himself on his own motion or on Blackwell’s first motion. Magre again referred the motion to Schraub, who assigned it to Judge James Clawson Jr. Humble filed a response, asserting that the grounds for recusal had been disclosed during the divorce proceeding in October 2002 and that Blackwell had waived her right to seek recusal. Following a hearing, Clawson denied Blackwell’s motion to recuse. In August 2004, Betty French, the children’s paternal grandmother and Humble’s mother, and Monty Humble, Humble’s brother, filed a petition in intervention seeking to be named possessory conservators of the children. Blackwell opposed the petition in intervention, arguing that the intervenors lacked standing to intervene. The trial court held a hearing in September 2004 to consider the petition in intervention and to reconsider Blackwell’s visitation schedule. Following a hearing in September 2004, the trial court signed a judgment in January 2005, finding that the intervenors had had substantial and continued contact with the children sufficient to warrant standing to intervene under the Texas Family Code, naming the intervenors as possessory conservators and continuing to limit Blackwell’s visitation with the children to two supervised visits each month. Blackwell appealed the judgment. HOLDING:Reversed and remanded. In her first two issues, Blackwell argued that the trial court judge should have recused himself from the case sua sponte. Rule 18a governs the recusal or disqualification of judges, the court stated. Grounds for recusal of a trial judge, the court stated, include that “he or a lawyer with whom he previously practiced law has been a material witness” in the case. Humble and Magre, the court stated, were partners in their own firm for two or three years and then partners with several other attorneys for about seven years; the two had not been in practice together for 15 or 16 years. Humble described his departure from his practice with Magre as unpleasant and rather acrimonious and “thought for about ten years [Magre] was pretty unhappy about it.” Humble did not believe Magre would show him any favoritism. The court did not agree that Magre was “somehow impartial enough to have presided over a June 2002 hearing on temporary orders, the record for which is not before us, the October 2002 hearing, and the subsequent signing of the divorce decree, but not impartial enough to have continued to exercise jurisdiction over the case after the decree was finalized.” At the October 2002 hearing, the court stated that Blackwell’s board-certified and experienced attorney stated she did not doubt the judge’s ability to be fair and did not want to file a motion to recuse. Thus, the court overruled Blackwell’s first two points of error regarding recusal. In her third issue, Blackwell argued that the judge should have recused himself when she filed her motion to recuse on June 19, 2003, and in her fourth issue, she contended that the assigned judge should have granted her June 2003 motion. Blackwell, the court stated, filed her June 2003 motion a year after the first hearing in the case and eight months after the decree was signed. The previous relationship between Humble and Magre was well known and was discussed in October 2002. Thus, the court found that Blackwell’s June 2003 motion was untimely. Moreover, the court found that Blackwell’s trial counsel explicitly stated that she did not question Magre’s impartiality and did not want to have the judge recused. Having reviewed the reporter’s records from the October 2002 and July 2003 hearings, the court stated that it could not hold that Clawson abused his discretion in denying Blackwell’s motion to recuse. Likewise, the court stated that it could not hold that Magre was legally obligated to recuse himself once Blackwell’s untimely motion to recuse was filed. On the restrictions against Blackwell relating access to her children, the court stated that it was “unable to discern what guiding rules and principles the court applied and whether the court appropriately exercised its discretion in denying Blackwell’s possession and limiting her access to her children.” The court found, however, that the trial court did not abuse its discretion in determining that there was evidence from which it could conclude that the circumstances had changed and that a modification would be in the children’s best interests. The court found “sufficient evidence to support the trial court’s decision that some limitations on Blackwell’s possession and access would be in the children’s best interests.” The court found, however, that the duration and severity of the restrictions and the difficulty Blackwell would face in seeking future modifications that might allow her more contact with her children “cause[s] us some concern.” “While the trial court may have believed,” the court stated, “that the evidence justified the severe restrictions it placed on Blackwell, those restrictions seem inconsistent with the court’s decision to maintain her as a managing conservator, and we are left to speculate about what, in fact, it did believe.” Finally, the court found that it was error to allow Monty Humble to intervene and seek to be named possessory conservator. OPINION:Puryear, J.; Puryear and Henson, JJ. CONCURRENCE AND DISSENT:Patterson, J. “I would conclude that the extensive � albeit stale � record establishes that the trial court had sufficient evidence to support its modification order and that the trial court did not abuse its discretion. Given the standard of review, the trial court’s decision was not unreasonable or arbitrary.”

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