Ex Parte K.S.II, K.S., and K.S., Children v. the State of Texas

Affirmed and Memorandum Opinion filed January 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00114-CV

EX PARTE K.S. II, K.S., AND K.S., CHILDREN

On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2017-61665A

MEMORANDUM OPINION

Mother filed a petition for writ of habeas corpus, asserting that she was
entitled to possession of the three children she shared with Father. Father filed a
response and a motion requesting sanctions. The trial court denied both Mother’s
request for habeas relief and Father’s request for sanctions, and Father filed this
appeal. For the reasons below, we affirm.

BACKGROUND

The issues in this appeal center around two orders governing Mother’s and
Father’s possession of their three children.
The trial court signed an Agreed Final Decree of Divorce on December 23,
2019. The Decree sets out the schedule for Mother’s and Father’s possession of
the children and provides as follows for Father’s weekend possession:

Weekends During the Regular School Term:
• Father is entitled to possession of the children on the first, third,
and fifth Friday of each month and ending when the children’s
school resumes after the weekend.
• Father is entitled to possession of the children on the Thursday
preceding the second and fourth Friday of each month and
ending at 12:00 p.m. on the following Saturday.
Weekends That Do Not Occur During the Regular School Term:
• Father is entitled to possession of the children on the first, third,
and fifth Friday of each month and ending at 6:00 p.m. the
following Sunday.

The Decree also provides as follows with respect to Christmas holidays:

Christmas Holidays in Even-Numbered Years:
Father has a right to possession of the children beginning when their
school is dismissed for the Christmas school vacation and ending at
noon on December 28. Mother has a right to possession of the
children beginning at noon on December 28 and ending at 6:00 p.m.
on the day before school resumes after Christmas vacation.

Christmas Holidays in Odd-Numbered Years:
Mother has a right to possession of the children beginning when their
school is dismissed for the Christmas school vacation and ending at
noon on December 28. Father has a right to possession of the children
beginning at noon on December 28 and ending at 6:00 p.m. on the day
before school resumes after Christmas vacation.

The parties subsequently signed Agreed Interim Orders, which provide as follows
with respect to Mother’s and Father’s possession schedule:

Possession Schedule Through May 31, 2022
Mother and Father agree that the possession schedule set forth in their
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Agreed Final Decree of Divorce shall remain in effect until 6:00 p.m.
on June 1, 2022.
Summer Possession Schedule Beginning June 1, 2022
Mother and Father shall each be entitled to 30 consecutive days of
possession of the children.
Possession Schedule Beginning August 1, 2022
Mother “shall have possession of the children during the week” and
Father “shall have possession of the children on the 1st, 3rd, and 5th
weekends beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on
the following Sunday.”

On December 30, 2022, Mother filed a petition for writ of habeas corpus, asserting
that she was entitled to possession of the children and that the children were being
“illegally restrained” by Father. Mother attached to her petition the parties’
Agreed Final Decree of Divorce.

Father filed a response to the petition that same day, arguing that Mother
was not entitled to possession of the children under the Agreed Interim Orders,
which superseded the possession schedule in the Agreed Final Decree of Divorce.
The trial court signed an “Order for Issuance of Writ of Habeas Corpus for
Children” on December 30, 2022, ordering Father to present the children for a
hearing on January 18, 2023, to determine “whether the children should be
returned” to Mother.

Approximately one week later, Father filed a motion to dismiss Mother’s
petition for writ of habeas corpus. Citing Texas Rule of Civil Procedure 13, Father
also requested that Mother be sanctioned “in the form of reasonable attorney’s fees
incurred by” Father. To support his motion, Father attached as evidence the
Agreed Interim Orders and the Mediated Settlement Agreement for Interim Orders.
Asserting that the possession schedule in the Agreed Interim Orders clearly
superseded the schedule in the Agreed Final Decree of Divorce, Father argued that

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Mother’s petition for writ of habeas corpus was “groundless” and “brought in bad
faith and solely for the purpose of harassment.”

The trial court held a hearing on Mother’s petition on January 18, 2023.
Mother testified at the hearing and asserted that, because the Agreed Interim
Orders did not address holiday visitation, the holiday visitation schedule in the
Agreed Final Decree of Divorce governed the parties’ dispute. Mother asked the
court to grant time with her children to “compensate for the time that [she] lost for
Christmas.” Concluding that Mother was “not currently entitled to possession of
the children,” the trial court denied Mother’s requested habeas relief. The trial
court also summarily denied Father’s request for attorney’s fees.

On February 3, 2023, the trial court signed an order that (1) dismissed
Mother’s petition for writ of habeas corpus, finding that Father “ha[d] a superior
right to present possession of the children on the date of [the] hearing,” and
(2) denied Father’s request for sanctions and attorney’s fees. Father timely
appealed.

ANALYSIS

Father raises four issues on appeal, which we consolidate as follows:

1. the trial court erred by failing to hold a hearing on Father’s motion for
sanctions and attorney’s fees; and
2. the trial court erred by denying Father’s request for sanctions and
attorney’s fees.

Before turning to these issues, we set out the text of Texas Rule of Civil Procedure
13, which Father cited in his request for sanctions:

The signatures of attorneys or parties constitute a certificate by them
that they have read the pleading, motion, or other paper; that to the
best of their knowledge, information, and belief formed after
reasonable inquiry the instrument is not groundless and brought in bad

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faith or groundless and brought for the purpose of harassment.
Attorneys or parties who shall bring a fictitious suit as an experiment
to get an opinion of the court, or who shall file any fictitious pleading
in a cause for such a purpose, or shall make statements in pleading
which they know to be groundless and false, for the purpose of
securing a delay of the trial of the cause, shall be held guilty of a
contempt. If a pleading, motion or other paper is signed in violation
of this rule, the court, upon motion or upon its own initiative, after
notice and hearing, shall impose an appropriate sanction available
under Rule 215, upon the person who signed it, a represented party, or
both.
Courts shall presume that pleadings, motions, and other papers are
filed in good faith. No sanctions under this rule may be imposed
except for good cause, the particulars of which must be stated in the
sanction order. “Groundless” for purposes of this rule means no basis
in law or fact and not warranted by good faith argument for the
extension, modification, or reversal of existing law. A general denial
does not constitute a violation of this rule. The amount requested for
damages does not constitute a violation of this rule.

Tex. R. Civ. P. 13.

I. Hearing on Father’s Motion for Sanctions

In his first issue, Father asserts he “had a right to have his request for
attorney’s fees heard by the trial court.” We disagree.

Under Rule 13, the trial court may impose sanctions only “after notice and
hearing.” Tex. R. Civ. P. 13 (“If a pleading, motion or other paper is signed in
violation of this rule, the court, upon motion or upon its own initiative, after notice
and hearing, shall impose an appropriate sanction[.]”) (emphasis added). But
Rule 13 does not require a trial court to hold an evidentiary hearing prior to
denying sanctions. See K. Griff Investigations, Inc. v. Cronin, 633 S.W.3d 81, 96
n.6 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (“neither rule 13 nor chapter
10 requires an evidentiary hearing before denying, as opposed to granting, a
motion for sanctions”); see also Skinner v. Levine, No. 04-03-00354-CV, 2005 WL
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541341, at *3 (Tex. App.—San Antonio Mar. 9, 2005, no pet.) (mem. op.) (“Rule
13 requires a ‘hearing’ only before the trial court imposes sanctions.”); Breault v.
Psarovarkas, No. 01-01-00122-CV, 2003 WL 876651, at *6 (Tex. App.—Houston
[1st Dist.] Feb. 28, 2003, pet. denied) (mem. op.) (“[Rule 13] requires a court to
hold a hearing prior to applying sanctions. The rule does not require a hearing
prior to denying sanctions.”).

Therefore, contrary to Father’s contention, he did not have a right to a
hearing on his request for attorney’s fees. See Tex. R. Civ. P. 13; K. Griff
Investigations, Inc., 633 S.W.3d at 96 n.6. We overrule Father’s first issue.

II. Denial of Father’s Request for Sanctions and Attorney’s Fees

Father’s remaining issues challenge the trial court’s denial of his request for
sanctions and attorney’s fees under Rule 13.

We review a trial court’s decision to grant or deny sanctions for an abuse of
discretion. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex.
2006) (per curiam); Mann v. Kendall Home Builders Constr. Partners I, Ltd., 464
S.W.3d 84, 91 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The test for an
abuse of discretion is not whether the facts present an appropriate case for the trial
court’s action but whether the trial court acted without reference to any guiding
rules or principles. Harrison v. Harrison, 363 S.W.3d 859, 862 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).

As set out above, Rule 13 provides that a trial court is authorized to sanction
a party who files a pleading that is groundless and brought in bad faith, or
groundless and brought for the purpose of harassment. See Tex. R. Civ. P. 13.
“Groundless” under Rule 13 means no basis in law or fact and not warranted by a
good faith argument for the extension, modification, or reversal of existing law.

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Id.; see also Harrison, 363 S.W.3d at 863. “Bad faith” is not merely bad judgment
or negligence, but is “the conscious doing of a wrong for dishonest, discriminatory,
or malicious purposes.” State v. PR Invs. & Specialty Retailers, Inc., 180 S.W.3d
654, 670 (Tex. App.—Houston [14th Dist.] 2005) (en banc), aff’d, 251 S.W.3d 472
(Tex. 2008). “Harassment” means that the pleading “was intended to annoy,
alarm, and abuse another person.” Id.

Courts must presume that pleadings are filed in good faith and the burden is
on the party requesting sanctions to overcome this presumption. Harrison, 363
S.W.3d at 863. To determine whether pleadings were filed in bad faith or for
purposes of harassment, the trial court must measure the litigant’s conduct as of the
time the relevant pleading was filed. Id.

Here, the trial court’s denial of Father’s request for sanctions and attorney’s
fees does not constitute an abuse of discretion. Specifically, the record does not
show that Mother’s petition for writ of habeas corpus was brought in bad faith or
for purposes of harassment. See Tex. R. Civ. P. 13.

As Mother explained at the January hearing on her petition, the possession
schedule in the parties’ Agreed Final Decree of Divorce provided both (1) a
schedule for weekend possession, and (2) a Christmas holiday schedule. The
Agreed Interim Orders, however, only provided a schedule for weekend possession
without making any adjustments for holidays. Mother argued that, because the
Agreed Interim Orders did not address holiday visitation, the children’s holiday
visitations continued to be governed by the Agreed Final Decree of Divorce.
Mother also pointed out that, as stated in the parties’ “Mediated Settlement
Agreement for Interim Orders,” the Agreed Interim Orders’ possession schedule
was intended to apply until the parties’ August 29, 2022 trial setting — which
would have concluded well before the Christmas holidays.

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However, as Father argued in his motion for sanctions and on appeal, the
Agreed Interim Orders clearly state that the original possession schedule
“remained in effect until 6:00 p.m. on June 1, 2022.” After that date, the children’s
possession schedule would be determined solely with reference to the Agreed
Interim Orders. The Agreed Interim Orders further state that this schedule would
“remain in effect until the Court or the jury returns a verdict on the final trial.”
The record does not indicate that any trial was held before Mother filed her petition
for writ of habeas corpus in December 2022.

But although this reading of the relevant documents supports Father’s
opposition to the requested habeas relief, it alone does not show that Mother’s
petition was brought in bad faith or for purposes of harassment as necessary to
warrant sanctions. See id.; see also Goss v. Houston Cmty. Newspapers, 252
S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“If an
appellant’s argument on appeal failed to convince us but has a reasonable basis in
law and constitutes an informed, good-faith challenge to the trial court’s judgment,
sanctions are not appropriate.”). Moreover, the record does not contain any
evidence showing Mother filed her petition “for dishonest, discriminatory, or
malicious purposes” or with the intent to “annoy, alarm, or abuse” Father. See
State, 180 S.W.3d at 670. Therefore, the trial court did not abuse its discretion in
denying Father’s request for sanctions and attorney’s fees.

We overrule Father’s remaining issues.

CONCLUSION

We affirm the trial court’s February 3, 2023 order denying Father’s request
for sanctions and attorney’s fees.

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/s/ Meagan Hassan
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.

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