### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

O N MOTION FOR REHEARING

NO. 03
- 19
- 00049
- CV

Irwin Pe ntland , Appellant

v. Stacey Denise Pentland , Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 18
- 000929, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N

Irwin Pentland (Irwin) appeal s the trial court ’ s final decree of divorce , arguing
that the decree orders “ excessive restrictions to [his] possessory conse rvator access ” ;

“ construc t [s] a possessory access scheme t hat is unenforceable ” ; and allows appellee , Stacey
Denise Pentland (Stacey) , 1 “ comp lete discretion to deny [him] legitimate access to his children. ”
Irwin also contends that the trial court erred in not granting his request for a continuance and in

“ admit ting extra neou s evidence related to [his] non

- final conviction. ” As explained below, w e will affirm the divorce decre e.

1 For clarity, w e will refer to the parties using their first names

.2 BACKGROUND Stacey filed for divorce in F eb ruary 201 8 , two months after Irwin was con victed of capital murder for fatally shoo ting t heir e lderly f rie nd and sente nced t o life w ithout parole
in the Texas Department of Criminal Justice, Institutional Div ision

. The trial court conducted

a bench trial on Stacey ’ s petition in S eptember 201 8 , at which Irwin appeared p ro s e, tel ephonically fr om prison. On e of the parties ’ two child re n was almost four a n d the other five at
the t ime of th e tria l

. Irwin had been inc arcerated since his arrest in December 2015 and had

not seen the children since that time

. Although Irwin had some phone conversat ions with the children during the f

i rst six month s of h is incarceration, he had not had any contact with them for at least a year and a half before trial.

T he t rial court signed a decree granting the di vorce and appointing Stacey a s sole managing conserv ator . The de c ree appointe d Irwin a s possessory conservator but ordered that he shall have no possession of the children or right of access to them except for “ the limited right

to communicate ” with them from prison by sending them l etters to a n Austin P .O

. B ox that
Sta cey was ordered to ma intain

. The decree pro v id ed t hat Stacey “ will engage a therapist for
the children whom they will see at least monthly , ” and the “ ther e apist [sic] will allow
communications [from Irwin ] to be revie wed by the children if d eemed by thera pist as appropriate. ” Stacey was ordered to provide Irwin ’ s communications to the children either through the therapist or

— if the children “ no lon ger need therapy ac cording to the therapist ”

— directly to the children

. The decree stated that the children a re permitted to commu nicate via
cards or letters with Irwin . It also required the ther apist to provide “ semi

- annual progress notes to both parents ” and Stacey to send Irwin school photos a nd a redacted copy of th e chi ldren ’ s

r eport cards sem i

- annuall y. Other than such p rescr ibed communication s , Irwin was to have3

“ no contact ” with Stacey or the children. Irwin was not ordered to pay child support while
incarcerate d.
The t rial court made findings of fact and conclusio ns of law per Irwin ’ s re quest
and denied his motion fo r new trial

. Among the trial court ’ s fin dings of fact pertaining to the
children were the fo ll owing:

7. It is in the children ’ s best interest for [ Stacey ] to be app ointed S ole M anaging C onservator and fo r [ Irwin] to be appointe d P ossess ory C onservator of th e children.
10. Regarding po ssession and access, it is in th e children ’ s best inter est to deviate from the standard possession order and restric t [Irwin] ’ s access to the children only to written communicat ion th rough P.O. B ox. [ Irwin] is currently incarcerat ed by Texas Department of Criminal Justice, serving a life sentence. He was convicted of capital murder in a high profile case. While the cr im inal mat ter is on appeal, the current situ ation of [Irwin] ’ s conviction and incarc eration m akes any possession u nworkable.
11. As for access, the Court finds that it is in the children ’ s best inter est that [Irwin] be allowed to correspond with the children. However, it is not in the children ’ s best interest, given the stress, circumstanc es, and p ublic nature of [Irwi n] ’ s conviction and incarceration that the correspondence be unmonitored or tha t the children be required to visit [Irwin] in prison or write to [Irwin]

. 11. [sic] It is in the children ’ s best interest tha t limits of the procedur e for corres pondence between [ I rwi n] and [ Stacey ] and the children be pl aced, and that the children[] should continue to see a therapist to help work through the relationship with and communications from [Irwin]

.

. . . 15. I t is in t he children ’ s best inter est that [Irwin] ’ s contact with [ Stace y ] or the children is limited to that described in the Final Decree

.

DISCUSSION
Irwin raises four iss ues on appea l

. He fi rst contends that the trial court “ erred when it had good cause to g rant [his] continuance but denied ” his r equest. He argues th at4

the trial court had “ clear evidence ” that he was seeking, and Stacey was resis ting, certain discovery , neces sitatin g more ti me f or the discovery process. We review the trial court ’ s ruling

o n Irwin ’ s co ntinuance m o tion for a buse of discretion. S ee Joe v. Two Thirty Nine Join t Venture , 145 S.W.3d 150, 161 (Tex. 2004)

.

We conclude t hat the trial cour t did not ab use its di scret ion because the record conclusively establishes that Irwin did not sen d Stacey any timel y discover y reque sts although
the case had been pend ing for eight months when trial commenced

. 2 See In re J.M.I. , No. 01

- 16

- 00829

- CV, 2017 WL 117 5568, at * 5 (T ex. App.

— Ho uston [1st Dist. ] Mar. 30, 2017, no pet. ) ( mem. op. ) (concludin g that trial court did not abuse discre tion in denying inter venors ’
contin u ance motion when they long knew about proceedings but failed to intervene unt il eve of

tr ial and did not se ek discovery until after first trial setting) ; see also Joe , 145 S.W.3d at 161 (listing non
- excl usive factors , in cluding whether party exercised due diligence to obtain disc overy, that t rial courts may con sider when determinin g whether tr ial court abused d iscretion in denying
continuance seeking additional time to conduct disc ov ery ). We overrule Irw in ’ s first issue.

N ext, Irwin cont ends that the trial court erroneously admitted evidence of his
criminal conviction bec ause it was on a ppeal at the time. 3 He speci fically co mplains that
Detective David Fuggitt should not have been permitted to testi f y at all under Ru le of Civil
Procedure 193.6 and , in any event, should not have been permitted to testify about the

2 The only request that I rwin made that com plied with applicable discovery rules was a set of interrogatories that he sent to Stacey seven days before tr ial , which wa s untimely. See Tex. R. Civ. P. 19 0.3 (a), (b)(1)( A ) ( notin g that in family

- law cases in which court ha s not entered discovery

- control pl an, as did not occur here , discovery period ends thirty days before trial).

3 His c onviction has since b een affirmed

. See Pentland v. State , No

. 14

- 18

- 00059

- CR, 2020 W L 3273256 (Tex. App.

— Houston [14th Dist.] June 18, 2 020 , pet. ref ’ d ) ( mem. op. , no t d esig nated for publication )

.5

circumst ances of Irwin ’ s conviction because the convict ion was “ not final , ” rendering the testimony inadmissible under R ule of E videnc e 609( e). We r ej ect bo th contentions.

Whi le acknowledging that w e review the trial court ’ s a dmission of evidence fo r abuse of d iscr etion , In re J.P.B. , 180 S.W.3d 570, 575 (T ex. 2005) , we note tha t Ru le of Civil
P rocedure 193.6 precludes t he trial testimony o f a non

- party wit ness who was not time ly
disclosed only when such infor mation was first sought by p roper and tim ely discover y re quest

. See Tex. R

. Civ. P. 193.6 (a)

. As already discussed above, Irwin did not make any timely discovery re quests, including a ny requests for d isclos ure
. See id. R

. 192.3(d) ( party may obtain
disc overy of p otential trial witnesses )

. As to Irwin ’ s contention about Rule of Evidence 609(e), that rule pertains to a party ’ s attempt to use a prior c riminal convicti on for witness impe achment

. See Tex . R

. Evid. 609 . If t he conviction is used for that purpose , then “ [a] con vi ction fo r whic h an appeal is pending is not admissi ble. ” Id. R. 609 (e). However, Stacey did n ot offer Detective Fuggitt ’ s testim o ny about Irwin ’ s conviction for impeachment but, rather , to establish the fa cts
around his un availability to ha ve possessio n of the children , which the trial court acknowledged
was th e purpose for admitting the testimony. Accordingly, w e overrule Irwin ’ s second issue.

I n his thir d issue, Irw in contends that the trial court abused i ts discre tion in
ord e ring “ excessive restrictions ” on his possessory

- conservatorship ac cess to the children. He

co mplains that the trial court permitted him o nly limited access to the child ren via l etters sent to
S tacey ’ s P.O. B ox but deni ed him any visi ta tion with th em, when the evidence showed that his
mother could have transported the children to visit him in prison. 4

4 In his pr oposed disp osition of issues, Irwin reque sted that th e children b e allowed to visi t hi m every other weekend in prison and that his mother p rovide transport ation for the children.6 When determining conservatorship , possession, and access to children, a tria l

court ’ s prima r y consideration is al ways the best interest of the child r en
. T ex. F a m. Code § 153.00 2; s ee Lenz v. Lenz , 79 S.W.3d 10, 1 9 (Tex. 2002) ( “ Suits affe cting the parent

- child relationship are int ensely fact driven, which is why courts hav e devel oped best

- inter est tests that

con sid er and balance n umero us fact or s. ” ). T he t rial court is given “ wide latitu de ” in determining
best int erest , and its judgment wi ll b e r eversed only when it appears from the record as a wh ole
that it has abused its discret ion. Gillespie v. Gillespie , 644 S. W.2d 449, 451 ( Tex. 1 982); Iliff v. Iliff , 33 9 S.W.3d 126, 133 (Tex. App.

— Austin 2009 ), aff ’ d 339 S.W .3d 74 (Tex. 2011)

. “ There
is no abuse of discretion if som e probative and su bstantive evidence s upports the tr ial cou rt ’ s order. ” I liff , 339 S. W.3d at 1 34. When makin g this determinati on, we consider (1) whether the
district court had suf

ficient information upon which to exercise its discretion , and (2) whether the
district cour t reached a reasonab ly permissible conclu sion based on t he evidence before it

. Id.

Stacey tes tified that she was afraid of Irwin ; did not want the children to visit him in p rison ; and had learned , during t he murder investigation , that he had been lying to her for
years

— including represe nting that he was at tending law school in San Antonio and w orking a paid internship at a law firm , donning a suit and leaving the home every da y , when in fact he was
not. She also learned that Irwin w as on probation for aggravated robbery when he committe d the murder, which he had n ever d isclose d to her. She testified that he had complete control of the couple ’ s finances during their marriage and had withdr awn over $10,000 from her IRA without
her know l edge during the year of the murder

.

Stacey testifie d tha t she also lear ned that Irwin , near the time of the m urder, had
p icked up the deceased ’ s grand son from day care and left the ch ild without adul t supervision for
seventeen hou rs , for which he had been charged with child endangerment. She testified tha t she7

did not want I rwin ’ s mo ther , Terr i Bu ckholtz, to bring the children to visit him in prison because
she believed Buckholt z to be untrustworth y and inclined to carry out Irwin ’ s wishes

. Stacey also
testified that Buckholtz h ad “ proven in [ Irwin ’ s prio r] di vorce ” that sh e was n ot a good candidate
f or even superv is ed v isitation , w as a “ hoarder ” who had a house that was unsafe for children , and might try to kidnap the children

. Her d istrust of Buckholtz was based in part on an incident she
described that occu rred while the murder charges were pendin g : when Bu ckh o ltz and Stacey

wer e in the marital

- home garage , Stacey found some ammunition , a rifle scope , and silen cer parts , of whic h she had been unaware ; Bu c khol tz “ took that ammunition canis ter, stood at [ t he]
d riveway and said, ‘ I ’ m taking this and we ’ re neve r go ing to talk about it again. ’ ”

Stacey testified that she believed Irwin was “ dangerous , ” that another i nmate ha d
testified at his murder trial that he was “ afraid of him , ” that she was afraid Irwi n wo uld “ send

someone out from pris on to find [ her] and [her ] children, ” and that B uck holtz would likely aid in such plan by housing such person
. She explained that Bu c kholtz had also told the ch ildren,
whil e on a phone call with them and Irwin from priso n , t hat their “ dad dy was coming home

soo n , ” despite his life sentence without parole. Stacey explained that , although for about the first
six to twelve months that Irwin was incarcerate d she an d the child ren had periodic phone calls
with him , she l ater ce a sed allowing the chi ldren to have co ntac t with him as she learned more
ab out him as the murder investigation pro gressed

.

Det ective Fuggitt con firmed that Irwin had never been enrolled in law school and
testif ied that the charges against him for ch ild en d angerment were still pe ndin g , a s were charges
for his six attempts to escape from jail while the murder charges were pending

. He testified about
Irwin ’ s efforts to obtain life insurance on Stacey about two months before he committed the8

murder and stated that “ with out a doubt ” he would “ be concerned ” if Irwin were to have contact
wi th minor children. He stated that Irwin had violated his probation by possessing firearms.

Buckholtz testified that she hired a la wyer to represent her during Irwin ’ s crimin a l
tria l and, on her counsel ’ s advice, declined to answer questions about whether she had hidden
evidence

. She stated that she believed Irwin was innocent and would do e ver ything she c ould
do “ within [ existing] limitat ions ” to “ get him out of pr is on. ” A l t ho ugh Ir win argu ed to the cou rt
that Buc kholtz was willing to drive the children to visit him in pris on every other weekend,
Bu ckholtz did not testify on th e matter. Fur thermore, B uckholtz was not a party and did not
i ntervene in the suit. Thus, the tri a l court co uld not have ordere d her any visitation with the
children during which time she might have elected to bring them to visit Irwin

. See In re Marriage of D.E.L. and J.J.P. , No. 14

- 17

- 00216

- CV , 2019 WL 545911 , at *3 (Tex. App.

— Houston [14th Dist .] F eb. 12, 2019, no pet.) (mem. op.) ( “ In the absence of a non
- p arent ’ s in tervention, the t rial court has no authority to a ward any non

- party visi tation. ” ).

On th is rec ord, we cannot conclude that the trial court ab used its discretion in
determini ng th at i t was n o t in the children ’ s b est interest to require them to visit Irwin in prison and permitting him access to them only via letters . The ch i ldren had had no contact with Irwin in over a year and half and ha d not seen him in person in almos t fo u r years , S tacey was oppos ed

to bei ng charged with transporting or facilitating the children ’ s transport to his Gatesv ille prison
unit from the children ’ s pres ent Austin

- area address , and evidence showed that it was not likely
that Irwin would ever be able to visit t he children outside prison walls and that Buckholtz was not an appropriate person to transport the children to the prison

. We c annot conclude on this
record that the trial court abused it s discretion in denyi ng Irwin visitation with the children
becaus e t here was sufficient evidence to support its reasona ble conclusion that it was not in the9

children ’ s best interest that th ey be transported to vis it him in prison

. See In re T.R.D. , No. 03

- 09

- 00150

- CV , 2010 WL 2428426, at * 4 (Tex. Ap p.

— Austin J un e 18, 201 0 , no pet. ) (mem. op.) (concluding that trial court did not abuse discretion in denying incarcerated mother visitation
with child where o rder allowed other forms of comm unication with child ; evidence supported prohibition on visitati on ; and mot her , as poss e ssory conservato r, could later seek to mo dify order
if circu mstances change d ).

In his final issue, Irwin contends that the trial court erred “ by constructing a
pos s e ssory conservator ac cess scheme that is unenf orceab le and allo w s [ Stacey ] com plete
discr e tio n to d eny [him] legitimate access to his children. ” H e cites Roosth v. Roosth , 889 S.W.2d 445, 452 (Tex. App.

— Houston [14th Dist.] 1994, wri t denied), to argue t h at a pos session
and a ccess order must b e clear and u nambiguo us so as to be enf orceable by contempt and may
not all ow one p arent complete discretion over the ot her parent ’ s possession or access to the child.
See id. at 452 ; see also In re J.S.P. , 27 8 S.W.3d 414, 422

– 23 (Tex. App.

— San Antonio 2008, no
p et.) ( “ If a trial court determi nes that it i s in the best interest of the child to place res trictions or
conditions on a con servator ’ s rights of possession and access, then it is the court ’ s respon sibil ity to specifically d efine those terms in its dec ree . The judg ment must state in cle ar and unamb i guous terms what is required for the conservator to c omply, and the terms must be s pecific enough to allow the conservator to enforce the judgment by conte m p t

. ” ).

The relevant a ccess provisio ns in the decr ee p rovide :

• Stacey “ shall maintain ” a speci f ied P.O. B ox and provide Irwin the new address should it change ;

• “ Irwin may only communicate with the children and mother through letters sent to the P.O. Box ” ;10

• Stacey “ will engage a therapis t for the chi ldr en whom they will s e e at least month ly. The thera p ist will allow communications to be reviewed by the children if deemed by therapist as appropriate. If the children no longer need therapy according t o the t h erapist, . . . [ Stace y ] is ORD ERED to give com munication from

. . . [Irwin] to the ch ildren. . .

. [ Stacey ] is ORDERED to provide comm u nication from . . . [Irwin] to the children either through the therapist or directly to the children ” ; and

• “ IT IS OR DE RED that the children s ’ [sic ] therapist w ill mo nitor all communication from . . . [Ir win] to t he c h i ldren and will facilitate introducing communication from [him] to the children. The children are permitted to communicate via cards and/or letters with

. . . [Irwin]

. ”

Irwin a rg ues that the dec ree provides no accountability for t he a ctions it r equires S tacey or the unnamed therapist to take and thus is unenforceable by contempt because Stacey can simply represent that she has been providing Irwin ’ s letters to the therapist with out any way for him to
know whether the therapist has share d the letters with the children

. 5 Irwin contends that the trial

court “ did not take seriously his parental ri ght s, ” as r eflected in the above provisions relating to his very l imited acc ess and ina b ility to as certain whether his “ appropriate ” communications are
in fact rela y ed to the child ren
.

To be enforceable by contempt, an order must set forth the terms of compliance
in clear, specific, and una mbiguous terms so that a pers on charged with obeyi ng the or der will readily know exactly what du ties and obligatio ns are impose d

. In re Mat thews , No. 02

- 11

- 00202

- CV , 2011 WL 2651912, at *3 (Tex. App.

— Fort W orth July 7 , 2011, no p et.) (mem. op.). “ The question of whether an order is enforceable by contem pt depend s o n whether the order is definite and certain, and the focus is on t he wording of the judgment itself. ” Id. If the trial court ’ s order

5 Irwin cite s Stacey ’ s test imo ny at a hearing on a m otion to enforce he filed since the decree was rendered at whic h Stacey test ified that she did not know whe t her the ther apist had shared Irwin ’ s letters w ith the children due to “ patient

- doctor privilege ” and merely passed th e letters through to the t herapist to “ let her make that judgment. ”11

requires inferences or conclu sions about which reasonable persons might differ, it is in suffic ient to support a judgme nt of co ntempt. Id. (citing Ex parte Cham bers , 898 S.W .2d 257, 260 ( Tex. 1995) (orig. proceeding)).

We conclude that the decree provisions pertaining to Irwin ’ s access to the children

ar e sufficiently specific as to be en forceable by cont e mpt

. See In re A.L.E. , 279 S.W.3d 424,
432

– 34 (Tex. Ap p.

— Houston [14th Dist.] 200 9 , no pet.) ( holding that order requiring mother to
submit to and pass d rug tests at specific facil ity and intervals and provide such results to father prior to scheduled unsupervised possession periods , and providing for only supervised v is itation by spe c i f ic entity upon her testing positive for d rugs, was sufficiently specif ic to be enforceable by con tem pt ) ; In re L.M. M. , No. 03

- 04

- 00452

- CV , 2005 WL 2094758, at * 12 (T ex. App.

— Austin Aug. 31, 2005, no pe t. ) (mem. op.) ( holdi ng that order p ermitting particu l ar court

appointed therapists to deny mother specific p ossession periods if the rapists agreed it was i n

c hildren ’ s best interest was sufficiently specific to be enforceable by contempt )

. Unlike the provisions held b y other courts to be i n sufficiently spe c ific , t he chall e nged provisions here leave
no room for Stacey to exercis e any discretion and specifically identify what each party must do : Irwin must s end any correspondenc e t o t he children to the P.O. B ox that Stacey must maintain,
and Stacey must provi d e the correspondence either (a) to the children ’ s th erapist (if the y are still seeing one) who is to share it with the c h ildren, as app ropriate, or (b) directly to the c hild ren (i f the therapist has determined that the children no longer need therapy). C f

. , e.g. , Ex p arte Brister , 801 S.W.2d 833, 834

– 35 (Tex. 1990) ( holding decree ’ s possession provisions unenforceable by contempt because they gave father unilateral power to modify d et ail ed possession schedule by merely providing mother no tice of his chang i ng wo rk schedule ); In re Marriage of Collier , 419 S.W.3d 3 90, 398

– 99 (Tex. App.

— Amarillo 2011, pet. denied ) ( con cluding that cus tody12

order providing f

or father ’ s visi t ation “ at the di s cr etion of ” mother was unenforceable by contempt ); J.S .P. , 278 S.W.3d a t 423 (concluding that custo dy order that did not attach any specific timelines to named therapist ’ s d uty t o develop and impleme nt transit ory p rogram leading

to conservator ’ s unsupervised visitation was not specific enough to be enforce abl e by contempt) ;
H a le v. Ha le , No. 04

– 05

– 00314

– CV, 2006 WL 166518, at *3 , 6 (Tex. App.

— San Antonio
Jan. 25, 2006, pet. denied ) (mem

. op.) ( reversi ng non
- s pe cif ic order that prevented father from seeing daughter “ until a ther apist recommends visitation ” )

.

The trial court h a s clearly spelled out the r ights and duties of the parents regarding
the letters; asking the trial court to cre ate more speci ficity here may be asking th e impossible , considering the uncertainty of how the children will fare in the futu re with their thera p ist. Indeed, g iven Irwin ’ s conviction for a violent felony re sulting in his incarcer ati on for life wit h out parol e and our de termination that the trial court acted within its discretion in denyi ng Irwin
visitation with th e children , it is difficult to cont e mplate how the trial court could further specify
the details of Irwin ’ s limit ed access to the children while ensuring that s uch access comports
with the children ’ s best int erest

. S ee Tex. Fam. Code § 153 .193 ( providing that limitation s upon
pa rent ’ s righ t to possession of or access to child may not exceed those required to protec t ch ild ’ s best i nterest)

. Because the decree ’ s access pr ovisions clearly outli ne w hat is required of Irwin
and Stacey and do not provide Stacey discretion ove r whether Irwin may e xercise his authorized
access to the children , w e conclude that t he decree is sufficiently enf orceable by conte mpt and ,

acc ording ly , overrule Irwin ’ s fourth issue.

CONCLUSION
W e overrule Irwin ’ s i ssues and affirm the divorce d ec ree.13 ____________ ________ ______________________ Thomas J. Baker , Justice
Before Chief Jus tice Rose, Justices Baker and Kelly
Aff irmed on Motion for Rehearing
File d: December 29, 2020