After Charles Douglas Mitchell awoke in bed one morning to his girlfriend — who suffered from bipolar disorder — stabbing him in the neck, he quickly won an order from a family law court that prevented her from having access to the child. But he needed Chad Baruch‘s appellate skills to make that tragic ruling enforceable.
The background to the dramatic case is as follows, according to the Dallas’ Fifth Court of Appeals recent decision captioned In Re Mitchell.
Mitchell lived together with his girlfriend, Lauren Patrice Hixson, after their child’s birth. Hixson apparently stopped taking medication to control her mental health condition during her pregnancy. On Nov. 18, 2016, Mitchell was sleeping in the bedroom with the child in the crib when he awoke at 3:30 a.m. to find Hixson standing over him with a butcher knife stabbing him in the neck.
Mitchell was able to push Hixson out of the bedroom, lock the door and call 911. Hixson was taken to the Dallas County Jail. Mitchell filed for an emergency protective order and an associate judge found that family violence had occurred and prohibited Hixon from having access to the child on Nov. 22, 2016. A district court judge later signed a suit affecting the parent-child relationship order on Dec. 21, 2016, appointing Mitchell sole managing conservator and enjoining Hixon from contact with the Mitchell or the child, except to exercise agreed visitation.
Hixon filed a motion for new trial by arguing that she did not have notice of the proceedings and later testified that she did not believe she had been served because during her time in jail she did not understand what was happening, heard voices and was confused.
On April 12, 330th State District Judge Andrea Plumlee granted a new trial as to both orders because Hixon was not taking her medication while she was in custody, was confused and did not know she had been served.
Mitchell appealed Plumlee’s decision to the Fifth Court via writ of mandamus, arguing that her decision to grant a new trial to Hixon was void because it was signed outside of her plenary jurisdiction. A trial court loses its jurisdiction over a case 30 days after a judgment is signed — but extensions are allowed if a party fails to receive notice within 20 days of that judgment.
And on Aug. 8, the Fifth Circuit agreed with Mitchell’s argument that Plumlee’s new trial order was void because neither Hixon nor her lawyer could not pinpoint an exact date that she received notice in jail.
“The closest Hixon came to establishing a date was her testimony that she saw the papers in her bag when she was transferred from solitary confinement to the tank. However, she did not say when the transfer occurred,” wrote Justice Bill Whitehill. “Accordingly, because Hixon did not establish that the April 12, 2017, new trial order was signed inside the plenary period, the new trial order is void.”
The Fifth Court’s decision came as a huge relief to both Mitchell and Baruch, who represents him on appeal.
“He found himself in the unlikely position of being in full-blown custody litigation with a woman who he says stabbed him in the neck with the baby sleeping in the same room,” said Baruch, a partner in Dallas’ Johnston Tobey Baruch — something the Fifth Circuit decision now prevents.
And while Hixon claimed she didn’t understand she was being served, Baruch said Hixon’s mental illness was not a deciding factor for the Fifth Court.
“She failed to prove exactly when she got notice of the default judgment,” Baruch said. “And that’s what really focused the court’s analysis was her failure to pinpoint a date.”
Georganna Simpson, a Dallas lawyer who represents Hixon, said her client is out of jail, back on her medication and stable. She said Hixon will not appeal the ruling and is planning to seek a custody modification before the trial court that gives Hixon controlled access to her child.
“We had always to planned to go in with a modification if we lost the mandamus,” Simpson said. “There is no point in appealing this to the Texas Supreme Court. We couldn’t prove the date because we didn’t have the jail records.”