In the Interest of A.M. - 418 S.W.3d 830 (Tex. App. 2013)

Rule:

While Tex. Fam. Code Ann. § 201.015(f) provides that after notice, the referring court shall hold a de novo hearing not later than the 30th date after a request, a party may also waive his right in writing or on the record. Tex. Fam. Code Ann. § 201.015(f), (g) (Supp. 2012).

Facts:

In this suit affecting the parent child relationship, Father has appealed numerous procedural and evidentiary rulings including (1) a finding of domestic violence against him, (2) various evidence admitted at trial, (3) the validity of Mother's divorce from her prior husband and its relation to the division of community property, and (4) Mother's appointment as sole managing conservator.

In relation to the first issue, on September 17, 2009, an associate judge entered a temporary protective order, which included a finding of a history of domestic violence against Father because "family violence has occurred and is likely to occur in the future." The associate judge's protective order extended to both Mother and A.M, the child of the marriage. Father appealed the associate judge's finding of a history of family violence and the issuance of a protective order. He requested a de novo hearing on September 21, 2009, which fell within the statutory deadline for requesting review. The record shows the parties appeared before the trial court on October 8, 2009, but the de novo hearing was reset for November 10, 2009. On November 5, 2009, the parties entered into a Rule 11 agreement in which the parties stipulated the following: “It has been represented to the Court that there has been no pattern of child neglect or family violence by any party to this case within the two years preceding the filing of this case or during the pendency of this case. Mother will agree to drop the Protective Order currently in place against father and will agree to sign or execute any additional documents necessary to accomplish removal of the current protective order for the benefit of Mother and against Father.” The de novo hearing was then removed from the trial court's docket by agreement. Findings of fact and conclusions of law later entered by the trial court state the trial court "declined to enter an Order based upon the Rule 11 Agreement on or about February 4, 2010." However, the record does not show any further action by Father to reset his appeal on the trial court's docket.

Issue:

Did the trial court abuse its discretion by entering a protective order based upon the associate judge's family violence finding without first conducting a de novo hearing upon request?

Answer:

No.

Conclusion:

Father's inaction after the Rule 11 agreement waived his right to a de novo hearing of the associate judge's finding of family violence and entry of a protective order. Although Father did not waive his de novo review in writing, we conclude that by agreeing to remove the hearing from the docket after the parties entered into a Rule 11 agreement, Father indicated to the trial court his desire to no longer pursue a de novo review, as there was no longer any issue for the trial court to review that needed "prompt resolution." In reaching this conclusion, the court was not persuaded by Father's reliance on Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex. App.—Dallas 2001, no pet.) in which this court stated, "Once a party has filed a notice of appeal, the party has completed the prerequisites necessary to be entitled to a de novo hearing." In that case, the party requesting de novo review of a discovery ruling timely filed her notice of appeal and despite the trial court's attempts to resolve the dispute informally, the appealing party continued to insist upon her right to a de novo review. In fact, she appeared for a hearing on her appeal no less than three times and demanded a continuance when the case was called to trial because the referring court had failed to rule on her appeal. Thus, unlike the present facts, there was no indication to the trial court in Fountain that the appealing party wished to waive her right to a de novo hearing. Rather, the party in Fountain continued to vigorously pursue a hearing, unlike Father.