in the Interest of Z.J.M.A., a Child ( 2022 )

NUMBER 13-20-00469-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF Z.J.M.A., A CHILD
On appeal from the 25th District Court
of Guadalupe County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
Appellant Christine Alexander Ragan appeals from the trial court’s order modifying
the parent-child relationship with respect to her daughter Z.J.M.A., a minor child. The
order provides that appellee Eric Muehlfeld, the child’s father, shall have six four-hour
supervised visits with the child, to be followed by standard unsupervised visitation. By
twenty-one issues, Ragan argues the trial court erred by: (1) denying her request for a
custody evaluation; (2) making various conclusions of law, including finding that the
modification was in the best interests of the child; (3) appointing a parenting facilitator;
and (4) awarding attorney’s fees and expenses to Muehlfeld and not to Ragan. We affirm
as modified. 1
I. BACKGROUND
A. Procedural Background
Z.J.M.A. was born to the parties on January 22, 2015. On May 7, 2015, the trial
court rendered a divorce decree appointing Ragan sole managing conservator of the child
and Muehlfeld possessory conservator, and directing Muehlfeld to pay child support of
$350 per month. The decree generally provided that, until the child is three years old,
Muehlfeld shall have supervised possession of Z.J.M.A. for two hours on Tuesdays, two
hours on Thursdays, four hours on alternate Saturdays, four hours on alternate Sundays,
and certain holidays. After the child turns three, the decree stated generally that Muehlfeld
shall have standard unsupervised possession—that is, alternate weekends, Thursday
evenings, an extended period during the summer, and certain holidays. See TEX. FAM.
CODE ANN. §§ 153.3101–.3171.
On November 22, 2017, Muehlfeld filed a “Motion for Clarification of Prior Order
for Possession or Access” in which he requested (1) clarification about the times and
locations of possession transfers, and (2) modification of the decree to allow additional
periods of visitation. He alleged in the motion that Ragan “failed to comply” with the decree
on thirteen occasions between April and August of 2017.
On January 4, 2018, Ragan filed a “Petition to Modify Parent-Child Relationship”
in which she alleged that “[t]he circumstances of the child, a conservator, or other party
1 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to an order
issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.
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affected by the order to be modified have materially and substantially changed since the
date of rendition of the order to be modified.” The petition alleged in particular that
Muehlfeld “failed to comply with the agreed terms for visitation” and “failed to establish a
positive relationship with the child,” and that Z.J.M.A. “shows periods of developmental
regression and outward signs of post traumatic stress disorder when confronted with
visitation with her father or the possibility of such.” Ragan requested that the trial court
order Muehlfeld “to comply with any additional visitation schedule as outlined by her
current doctors and therapists and to initiate therapeutic visitation to establish a
relationship with the child.” Alternatively, if Muehlfeld “refuses to abide by the
recommendations of the child’s doctors and therapists,” Ragan asked the trial court to
deny Muehlfeld any access to Z.J.M.A. or to require that all visits be supervised. The
petition also requested an increase in child support.
On January 11, 2018, the parties executed a handwritten agreement providing that
Muehlfeld would have gradually increasing access to the child, beginning with three
weekly supervised visits with the child’s therapist, continuing with four weekly two-hour
unsupervised visits, then four weekly six-hour unsupervised visits, and finally weekly
overnight unsupervised visits. On April 17, 2018, the trial court rendered temporary orders
largely tracking the parties’ handwritten agreement, but providing that the three
supervised visits would take place at KidShare, a private visitation facility, rather than at
the therapist’s office.
Muehlfeld filed an answer and counterpetition on July 31, 2019, in which he agreed
that “[t]he circumstances of the child, a conservator, or other party affected by the order
to be modified have materially and substantially changed since the date of rendition of
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the order to be modified.” Muehlfeld asked to be named joint managing conservator with
the right to determine Z.J.M.A.’s residence, or in the alternative, for a standard possession
order. In an amended answer and counterpetition, Muehlfeld withdrew his request for the
right to determine Z.J.M.A.’s residence.
On August 29, 2019, Ragan filed a “Motion to Inspect Residence” stating that she
“has not seen or is aware of the residence or living conditions of [Muehlfeld]” because
Muehlfeld “has been absent for the past four (4) years.” Later, Ragan filed a “Motion for
Child Custody Evaluation” alleging that Muehlfeld “abandoned the child since she was
approximately 6 months of age.” The trial court denied the motion for custody evaluation.
At a status hearing on September 5, 2019, Ragan’s counsel informed the trial court
that Muehlfeld agreed to relinquish his parental rights, and that Muehlfeld’s counsel
“assure[d] me that they are not going to change their mind.” Muehlfeld’s counsel
acknowledged that her client intended to relinquish his rights; however, no signed affidavit
for relinquishment of parental rights appears in the record. Instead, a final hearing on
modification took place on February 18 and 19, 2020.
B. Final Hearing
1. Ragan
At the hearing, Ragan testified that she has been married to Jeremy Ragan for
three years, that she has one other child with Jeremy who is around two years old, and
that they are expecting another child in June of 2020. She said she is not currently
employed but previously worked at Costco and intended to return to work there “[a]fter
my kids go to school.”
Ragan stated that she was married to Muehlfeld for about two years, but they
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separated in September of 2014. She stated that she had been the victim of domestic
violence by Muehlfeld “throughout the marriage,” and for that reason, they agreed even
before the child was born that Muehlfeld’s visits would be supervised. One Sunday
afternoon in April of 2015, when Z.J.M.A. was about two and a half months old, Muehlfeld
walked into the backyard with the child, and when they came back, the child was “crying
and kicking and screaming.” Muehlfeld handed the child back to Ragan and left the house.
Ragan also said that, when changing the child’s diaper, Muehlfeld would take too long
and the child “would appear red afterwards.”
Ragan testified that, from June 2015 to February 2017, Muehlfeld did not see the
child and did not contact her to ask about the child. She later clarified that, around
Christmas of 2015, Muehlfeld asked Ragan for “a picture to take home.” Ragan said she
texted the picture to him and asked him if he wanted to see his daughter, since he had
not originally asked to see her. Muehlfeld told Ragan that he did want to see Z.J.M.A. and
a visit was arranged; however, when the visit took place, the child “started screaming
hysterically” after “45 seconds.” Ragan said that, after this brief visit, Z.J.M.A. began “her
regressive tendencies” such as “overeating” and “not being able to sleep,” and the
pediatrician recommended therapy. Z.J.M.A. underwent therapy for “[a]bout six months”
before being discharged. 2
Ragan said that in February 2017, Muehlfeld contacted her to explain that he was
applying for a law enforcement job and that Ragan would be contacted in connection with
2 On cross-examination, Ragan acknowledged that Z.J.M.A. was discharged from therapy in April
2017 “because of an escalated event.” When asked to elaborate, Ragan stated that “they locked my mother
away from me and I needed to leave the room and would not allow her near me . . . .” Later, the director of
the therapy facility testified that “the maternal grandparents got involved and became angry and hostile;
therefore, we could not continue to provide services.” However, according to a July 6, 2017 “Closure
Summary Report” signed by the director, Z.J.M.A. “successfully met all of her treatment goals.”
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the application; he did not ask about Z.J.M.A. at that time. Later in February, Muehlfeld
“showed up” at the residence Ragan was living at with her parents to exercise visitation
with the child. Ragan testified that the child “immediately ran behind the counter and hid
from [Muehlfeld],” and despite “multiple [attempts] to coax her out,” she “refused to leave
behind the kitchen counter until he was gone,” after about an hour. According to Ragan,
Muehlfeld exercised about ten other visits with Z.J.M.A. from February to September
2017, but most of the time, the child would “run and hide from him.” Ragan said Muehlfeld
did not hold or touch the child during any of the visits. Ragan testified that, on several of
these visits, she had to call the police because Muehlfeld “would make inappropriate
comments or would try to challenge my dad, and a couple times he actually got up in my
dad’s face, and then he would start yelling at my mother, all while in front of the child.”
Ragan said that, after Muehlfeld’s visits, Z.J.M.A. would “overconsum[e] bottles,”
would have difficulty sleeping, would wet her bed, and would have night terrors.
Therefore, Ragan again sought out therapy for the child around August of 2017. Z.J.M.A.
saw therapist Shannon Zorn from that time until around August of 2019.
Ragan testified that Muehlfeld saw Z.J.M.A. three times in 2018. First, he visited
with her at Zorn’s office, pursuant to the parties’ January 11, 2018 handwritten agreement.
According to Ragan, when Z.J.M.A. looked into Zorn’s office and saw Muehlfeld there,
the child “turned back around and ran down the hallway crying.” After multiple entreaties,
Z.J.M.A. eventually entered the office and stayed there for about ten minutes, but she did
not make eye contact with Muehlfeld or communicate with him. Ragan said that, at
Z.J.M.A.’s next individual counseling appointment with Zorn, the child would not enter the
waiting room and “was checking around for [Muehlfeld].” On May 23, 2018, Ragan took
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Z.J.M.A. to KidShare for a scheduled visit with Muehlfeld. Ragan said this visit “went okay”
but the child expressed that she did not want to go back the following week. On May 30,
2018, Ragan again took Z.J.M.A. to KidShare even though the child was “hysterical” and
“didn’t want to go.” Ragan said that Z.J.M.A. “seemed okay” after this visit—however,
over the following days, the child refused to leave the house and refused to go to the
bathroom. Instead, she would “pee in her underwear right in the living room.” Ragan
testified that she later learned Muehlfeld was alone in the restroom with the child during
the May 30 visit. According to Ragan, her attorney has since made multiple efforts to set
up a visit for Muehlfeld with Ragan and the therapist present; however, Muehlfeld has
rejected those efforts. She said the May 30, 2018 visit was the last time Z.J.M.A. was
physically in Muehlfeld’s presence.
Ragan testified that Z.J.M.A. later saw a different therapist, Cori Callaghan, until
October of 2019. According to Ragan, at the time of the hearing, Z.J.M.A. “is a happy,
healthy five-year-old,” is “on scale for her weight” and is “doing great” in preschool. Ragan
asked that the court modify the decree to grant Muehlfeld “supervised, restricted access”
to Z.J.M.A., to increase Muehlfeld’s monthly child support obligation, and to direct
Muehlfeld to pay for health insurance for the child. Ragan opined that any sort of overnight
or extended visitation with Muehlfeld would be detrimental to the child.
Ragan said she was concerned that, if Muehlfeld were to be granted standard
possession, “he will work on alienating me” or “he might take her out of state and I’ll never
get her back.” She asked the court to order supervised visitation only, with a supervisor
“experienced in reunification,” until “we [can] make sure that [Z.J.M.A.] is willing and
happy to go with him.”
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On cross-examination, Ragan conceded that, in the letters offering Muehlfeld
visitation after May 30, 2018, she demanded Muehlfeld agree to strict rules, including that
he would only be allowed to hold the child for thirty minutes out of the hour-long visit, and
he had to put the child in her bassinet if she fell asleep. Ragan explained “infants need to
know that there are places to play and places to sleep. Hold an infant all the time, as a
lot of people tell you about your kid, that’s what they’re going to get used to.” Further, she
asked Muehlfeld to refrain from calling himself “dad” until she “could work with her
therapist to get her to understand that.” She acknowledged that Z.J.M.A. has seen at least
four therapists during the course of the case.
Ragan initially could not recall whether she asked Muehlfeld to relinquish his
parental rights. Muehlfeld’s counsel then offered as evidence an audio recording of a
March 19, 2017 phone call between Ragan and Muehlfeld. During the phone call, Ragan
stated: “I would like it if you would go ahead and terminate your rights and get the money
situation out of our hands, away from us. If you do that, you and I can actually start a co-
parenting relationship. No more supervisors involved. You and me trying to figure this
out.” Ragan explained to Muehlfeld that she wants Z.J.M.A. to have a relationship with
him and his family, “[b]ut I can’t do that and I haven’t been able to do that with you being
able to just pop in whenever you feel like it” because “it has this [n]egative [e]ffect on her.”
Muehlfeld said he would “think about it.”
2. Muehlfeld
Muehlfeld testified that he is employed as a lead officer for a security company,
works forty hours per week, and earns $16.90 per hour. He has been married since 2016
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and lives in a two-bedroom apartment in San Antonio. 3 He stated he owns a handgun
and two knives which he keeps in the apartment “high up, unable to be reached by
children.”
Muehlfeld denied that Z.J.M.A. became “hysterical” when he took her out to the
backyard in April of 2015, and he denied that he dropped the child then or any other time.
He denied that he ever committed domestic violence against Ragan. He said he has twice
been investigated by Child Protective Services (CPS) with regard to Z.J.M.A., but there
has never been a “reason to believe” finding made about any wrongdoing. CPS did not
institute a safety plan, did not advise him to take parenting classes, and did not
recommend that he have supervised visitation with the child.
Muehlfeld opined that the initial supervised visits in 2017 “didn’t go wrong because
of my visitation” but instead “went wrong because of how they introduced the daughter
and how my ex-wife and her husband refused to give her space to be able to . . . interact.”
Muehlfeld conceded that he asked Ragan’s counsel to prepare an affidavit of
relinquishment of parental rights, but he claimed he did that only “[t]o find out what it
looked like, what it was, what it entailed.” He denied that he wanted to relinquish his rights
to Z.J.M.A., and he denied knowing that Ragan’s husband wanted to adopt the child.
Muehlfeld testified that, when he visited Z.J.M.A. in the first few months of her life,
Ragan’s father would demand that Muehlfeld turn his pockets inside-out to prove he was
not carrying a cell phone or recording device. He said Ragan and her parents would not
allow him to touch the child and would not allow him to call himself her father.
3 Muehlfeld said his wife lives with him; however, he refused to testify as to what her job is or where
she is employed.
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According to Muehlfeld, at his visit with Z.J.M.A. at KidShare on May 30, 2018, the
child was playing and “all of a sudden she became very [sic] really fussy and started
crying. And I asked her: Did you need to go potty? And she goes yes. I said: Okay, let’s
go ahead and go potty.” Muehlfeld testified:
We went over to the restroom. I went in with her. The door was ajar and the
counselor was standing there watching the whole thing.
You know, I asked [Z.J.M.A.] did you need any help pulling down her pants
or getting on the toilet, and she goes: No, I got it. And she pulled down her
pants and then she tried to climb up the toilet and she couldn’t do it.
And I said: Can I help you? And I helped her up on the toilet, she used the
bathroom, I pulled out some toilet paper for her, I asked her if she was done,
I helped her off the toilet, I handed her the toilet paper, she then wiped,
pulled up her own pants, and then I lifted her up to wash her hands, we went
back to the room and we continued playing.
Muehlfeld acknowledged that his attorney advised him of the various letters sent
by Ragan’s counsel proposing additional supervised visits in 2018; he agreed that he
rejected those proposals because “they were 10 minutes long” and “10 minutes is an
insult.” 4 He stated that he would like to start unsupervised visitation “right away,” on the
same schedule as provided in the divorce decree, but he understood “that may not be the
case because of the alienation that’s happened.”
3. Other Witnesses
Zorn, a licensed marriage and family therapist, testified she first saw Z.J.M.A. in
May of 2017 because the child was having sleeping and bedwetting issues. She first met
Muehlfeld in January of 2018 during his “therapeutic” visit with the child. Zorn said that
Muehlfeld was in a play therapy room when Z.J.M.A. entered, and the child ran back to
4 According to emails between the parties’ attorneys, the proposed supervised visits would have
been 15 minutes in duration.
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Ragan and her husband and refused to go in. Zorn said that Ragan and her husband
repeatedly tried to get the child to go into the room. Eventually, Z.J.M.A. calmed down
and Ragan’s husband carried her back to the therapy room. After that visit, Zorn’s
employer referred the family to KidShare for supervised visits, while Zorn continued to
counsel Z.J.M.A. individually.
Zorn testified as follows with respect to an individual counseling session she had
with the child on September 14, 2018:
[Zorn:] [Ragan] had mentioned that since the last counseling
session she had just a week or so prior, that [Z.J.M.A.]
had two visits at KidShare and on top of that she was
still bedwetting, requesting more bottles at night. So
some of the same behaviors were still going on. And
that [Z.J.M.A.] had expressed not wanting to go to
KidShare. Ms. Ragan had asked if I could ask
[Z.J.M.A.] about her visits, and so I said sure, I can try
and see what comes of it.
So I met with [Z.J.M.A.], we had our normal play
therapy session. Towards the end of the session,
maybe about 15, 20 minutes before we ended, I asked
[Z.J.M.A.], I said: Can I ask you a question? She said
sure. And I asked her: Do you know of a man named
Eric and have you seen him? And she said yes.
She then proceeded to describe a situation where
there was a green car, a car seat and her falling out of
the car seat. And then she proceeded to say: He’s
mean, kicked me. So she makes a kicking gesture, and
that he punched me. And she shows me a gesture like
this. (Indicating)
[Ragan’s counsel:] For the record, you’re taking your fists and punching
towards your stomach . . .
[Zorn:] Right. And so after that she proceeded to say
something else that was not very clear, I wasn’t able to
understand, decipher, and then said: It’s driving me
crazy.
Zorn said she made a report to CPS concerning this allegation, as was her legal duty.
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She said this was the last time she had a counseling session with Z.J.M.A.
David Cantu, a licensed clinical social worker, testified that he met with Ragan,
Ragan’s husband, and Z.J.M.A. on January 15, 2020. At the session, Cantu asked the
child to draw pictures and to explain why she drew what she drew; he then wrote notes
on each drawing reflecting what the child told him. Over Muehlfeld’s counsel’s objection,
the drawings with the notes were entered into evidence. The first drawing is of Muehlfeld
and the notes state: “Mad, scared, pushed me off the couch because that is what they
do.” The second drawing is of Muehlfeld and the child, and the notes state: “Door fall on
them.” The third drawing depicted Muehlfeld, Z.J.M.A., and other people; all the people
had smiles on their faces except Muehlfeld. The notes on the drawing state: “Eric drop
me and let me fall. Playing in a big house w/ a block castle.” Cantu stated he was
concerned for Z.J.M.A.’s safety and her relationship with Muehlfeld 5 because “she
became angry and scared” during his visit with her and, in his opinion, the prior court
orders “ignored the well-being of the child” in setting forth steps toward reunification.
Cantu agreed that, “if there is some issue, the counselor needs to work through it and not
just force the child to go right back to the visit.”
5 Ragan’s counsel led Cantu through § 107.108(f) of the family code, which provides:
A child custody evaluator who has evaluated only one side of a contested suit shall refrain
from making a recommendation regarding conservatorship of a child or possession of or
access to a child, but may state whether any information obtained regarding a child’s
placement with a party indicates concerns for:
(1) the safety of the child;
(2) the party’s parenting skills or capability;
(3) the party’s relationship with the child; or
(4) the mental health of the party.
TEX. FAM. CODE ANN. § 107.108(f).
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C. Judgment and Findings
The trial court’s judgment, signed on August 21, 2020, states as follows:
The Court finds that the allegations in the Petition to Modify Parent-Child
Relationship have merit and that the modifications requested by ERIC
MUEHLFELD are in the best interests of the child. Accordingly, IT IS
ORDERED that the Petition to Modify Possession and Access is
GRANTED.
The Court finds that the allegations in the Petition to Modify Parent-Child
Relationship have merit and that the modifications requested by
CHRISTINA ALEXANDER RAGAN are in the best interests of the child.
Accordingly, IT IS ORDERED that the Petition to Modify Child Support and
Medical Support is GRANTED.
The judgment ordered standard visitation for Muehlfeld, as provided in the divorce decree,
but provided that “a parenting facilitator,” namely Danielle Warzecha, “will supervise the
first six visits.” The judgment states that the supervised visits may be at Muehlfeld’s
residence or any other place he and Warzecha agree, and that Muehlfeld’s wife may be
present during the visits. It further stated that Ragan shall pay Warzecha’s fees and “shall
facilitate the visits in a manner which positively enhances and prepares [Z.J.M.A.] for
standard possession.” Finally, the judgment increased Muehlfeld’s child support
obligation to $550 per month, awarded Muehlfeld $7,800 in attorney’s fees and expenses,
and denied Ragan’s request for attorney’s fees. The judgment did not address
conservatorship.
In findings of fact and conclusions of law filed on October 13, 2020, the trial court
reiterated the findings contained in the judgment and specified that “[t]he parties are
named Joint Managing Conservators of [Z.J.M.A.],” with “[Ragan] to determine
residence.” It concluded that “[t]here is no credible evidence to support the denial of this
father’s normal and unfettered access to his child under the guidelines of joint managing
conservatorship.”
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This appeal followed. 6
II. DISCUSSION
A. Custody Evaluation
By her first issue on appeal, Ragan argues that the trial court erred by denying her
motion for custody evaluation.
A trial court in a custody suit may, after notice and hearing or by agreement of the
parties, order the preparation of a child custody evaluation. TEX. FAM. CODE ANN.
§ 107.103. The appointed evaluator must meet minimum educational and training
requirements. Id. § 107.104. In order to opine on conservatorship, the evaluator generally
must complete certain basic elements, including a personal interview of each party
seeking conservatorship and observations of the child in the presence of each party. Id.
§ 107.109(a), (c). We review a trial court’s ruling on a motion under § 107.103 for abuse
of discretion. See Swearingen v. Swearingen, 578 S.W.2d 829, 831 (Tex. App.—Houston
[1st Dist.] 1979, writ dism’d) (applying abuse of discretion standard to the decision not to
order a social study under former family code § 107.051); see also McKinney v. Davis,
No. 13-06-00163-CV, 2007 WL 925649, at *2 (Tex. App.—Corpus Christi–Edinburg Mar.
29, 2007, no pet.) (mem. op.) (same). A trial court abuses its discretion when it acts in an
arbitrary or unreasonable manner or without reference to guiding rules or principles.
Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011).
Ragan argues that an evaluation was in Z.J.M.A.’s best interests because
Muehlfeld “abandoned the child since she was 6 months of age” and because, at the time
of the motion, Z.J.M.A. had been in therapy for over a year, allegedly due to her reactions
6 Muehlfeld has not filed a brief to assist us in the resolution of this appeal.
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to Muehlfeld’s visits. She contends that an evaluation under § 107.103 could have
allowed a “professional” “expert” to make recommendations at the final hearing as to what
provisions concerning access and possession would be in Z.J.M.A.’s best interests. She
does not cite any authority establishing that a trial court lacks discretion to decline to order
a custody evaluation in cases where a child has been abandoned or is undergoing
therapy. Instead, the only authorities Ragan cites are Swearingen and McKinney, both of
which found that there was no abuse of discretion in declining to order a social study
because no party requested one. See Swearingen, 578 S.W.2d at 831; McKinney, 2007
WL 925649, at *2; see also TEX. R. APP. P. 38.1(i).
On this record, we cannot conclude that the trial court reversibly erred. There was
no hearing held on Ragan’s motion, and the record does not otherwise reflect the reasons
for the trial court’s ruling. Ultimately, there was ample testimony adduced at the final
hearing from witnesses who personally observed the parties interact with the child, as
well as from the parties themselves. See TEX. FAM. CODE ANN. § 107.109(a), (c) (listing
required elements of custody evaluation); In re Garza, 981 S.W.2d 438, 442 (Tex. App.—
San Antonio 1998, orig. proceeding) (concluding that the trial court “did not abuse his
discretion in refusing to order an updated social study” because “[i]t is within the trial
court’s discretion to order a social study”); see also In re Villanueva, 292 S.W.3d 236, 243
(Tex. App.—Texarkana 2009, no pet.) (noting that “while the trial court must make the
determination of the best interest of the child, there is no evidence that, without the social
study, the trial court will be unable to make such determination” and that “the social study
could be necessary and would likely be helpful but, ultimately, we cannot know whether
the social study is necessary to allow the trial court to make its determination as to the
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best interest of the children”). Though Ragan suggests that a custody evaluation would
have allowed the trial court to better determine which possession arrangement would be
in Z.J.M.A.’s best interests, she does not explicitly argue as part of this issue that the lack
of an evaluation probably caused the trial court to render an improper judgment or
probably prevented her from presenting her case to this Court. See TEX. R. APP. P. 44.1(a)
(standard for reversible error in civil cases).
For the foregoing reasons, we overrule Ragan’s first issue.
B. Conclusions of Law
By her second through twelfth issues, Ragan argues that the trial court erred in
making various conclusions of law.
1. Standard of Review
We review a trial court’s conclusions of law de novo, evaluating them
independently and determining whether the court correctly drew the legal conclusions
from the facts. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002);
see In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009). Conclusions of law
will be upheld on appeal if the judgment can be sustained on any legal theory supported
by the evidence. Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.]
2000, no pet.); see Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.—
Austin 1999, pet. denied) (“Incorrect conclusions of law will not require reversal if the
controlling findings of facts will support a correct legal theory.”).
The trial court is afforded great discretion when determining issues relating to
conservatorship, including visitation. Gardner v. Gardner, 229 S.W.3d 747, 753–54 (Tex.
App.—San Antonio 2007, no pet.); Dennis v. Smith, 962 S.W.2d 67, 70 (Tex. App.—
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Houston [1st Dist.] 1997, pet. denied). To determine whether the trial court abused its
discretion, we review the “evidence in a light most favorable to the court’s decision and
indulge every legal presumption in favor of its judgment.” In re J.I.Z., 170 S.W.3d 881,
883 (Tex. App.—Corpus Christi–Edinburg 2005, no pet.). In this context, challenges to
the legal or factual sufficiency of the evidence are not separate grounds of error, but
instead are relevant factors to consider in assessing whether the trial court abused its
discretion. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied). To determine whether the trial court abused its discretion because the evidence
was legally or factually insufficient, “we consider whether the trial court had sufficient
information upon which to exercise its discretion and whether it erred in its application of
that discretion.” In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no
pet.).
We are mindful that “the trial judge is best able to observe and assess the
witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and influences’
that may not be apparent from merely reading the record on appeal.” In re P.M.G., 405
S.W.3d 406, 410 (Tex. App.—Texarkana 2013, no pet.) (quoting In re A.L.E., 279 S.W.3d
424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). Thus, we “defer to the trial
court’s judgment in matters involving factual resolutions and any credibility determinations
that may have affected those resolutions.” Id.
2. Joint Managing Conservatorship
Ragan contends by her second issue that the trial court’s conclusion of law
regarding joint managing conservatorship was erroneous because it conflicts with the
prior written judgment. Ragan notes that the divorce decree named her as Z.J.M.A.’s sole
17
managing conservator and that the judgment on appeal, though silent on the issue of
conservatorship, states that “any provisions [of the divorce decree] not modified remain
in full force and affect [sic] until otherwise modified by Court Order.” Ragan argues that,
because the August 21, 2020 judgment did not alter the conservatorship provisions of the
divorce decree, those provisions remain in force.
We disagree. Absent an objection, findings of fact and conclusions of law filed after
a judgment are controlling if they conflict with a previous judgment. In re R.J.P., 179
S.W.3d 181, 184 n.3 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Capital Senior
Mgmt. 1, Inc. v. Tex. Dep’t of Human Services, 132 S.W.3d 71, 74 n.3 (Tex. App.—Austin
2004, pet. denied); Zorilla v. Wahid, 83 S.W.3d 247, 254 (Tex. App.—Corpus Christi–
Edinburg 2002, no pet.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex.
2011). Indeed, “[w]hen an appellate court is presented with a conflict between a judgment
and subsequent findings and conclusions, the appellate court has the power to modify
the judgment to conform with the findings of fact and conclusions of law.” City of Laredo
v. R. Vela Exxon, Inc., 966 S.W.2d 673, 678 (Tex. App.—San Antonio 1998, pet. denied);
see Arena v. Arena, 822 S.W.2d 645, 652 (Tex. App.—Fort Worth 1991, no writ).
Here, the written judgment arguably implied that Ragan remained Z.J.M.A.’s sole
managing conservator, but the conclusions of law explicitly provided that the parties are
joint managing conservators. The latter conclusion controls. See In re R.J.P., 179 S.W.3d
at 184 n.3; Capital Senior, 132 S.W.3d at 74 n.3; Zorilla, 83 S.W.3d at 254. Accordingly,
on our own motion, we will modify the judgment to reflect that the parties have both been
named joint managing conservators of Z.J.M.A. See TEX. R. APP. P. 43.2(b). Ragan’s
second issue is overruled.
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By her ninth issue, Ragan argues that the trial court erred by designating Muehlfeld
a joint managing conservator because he did not “pursue” such relief at the final hearing.
She cites no authority, and we find none, stating that a party must orally request certain
relief at a final hearing or trial in order to be entitled to that relief. See TEX. R. APP. P.
38.1(i). Here, the designation of Muehlfeld as joint managing conservator was supported
by Muehlfeld’s live pleading, in which he explicitly asked “to be appointed the Joint
Managing Conservator of the child . . . .” See TEX. R. CIV. P. 301 (providing that “[t]he
judgment of the court shall conform to the pleadings”); see also Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 813 (Tex. 1983) (“[A] party may not be granted relief in the
absence of pleadings to support that relief.”); In re Park Mem’l Condo. Ass’n, Inc., 322
S.W.3d 447, 450–51 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). We
overrule this issue.
3. Possession and Access
Ragan’s remaining challenges to the trial court’s conclusions of law concern the
provisions setting forth Muehlfeld’s periods of possession of Z.J.M.A.
By her third and fourth issues, she contends that the trial court erred in stating in
Conclusion of Law No. 1 that (1) the allegations in Muehlfeld’s petition have merit, (2) the
allegations in Ragan’s petition have merit, (3) Muehlfeld’s “Petition to Modify Access and
Possession is granted,” and (4) Ragan’s “Petition to Modify Child Support and Medical
Support is granted.” These issues appear to be based on the fact that the parties did not
file pleadings with the exact names recited in the judgment and in Conclusion of Law No.
1. Instead, Muehlfeld’s request for modification to access and possession was included
within his “Amended Original Answer and Counterpetition to Modify Parent-Child
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Relationship”; and Ragan’s request to modify child support was contained in her “Petition
to Modify Parent-Child Relationship.” Ragan does not explain how this discrepancy
probably caused the rendition of an improper judgment or probably prevented her from
presenting her appeal. See TEX. R. APP. P. 44.1(a). Her third and fourth issues are
overruled for that reason.
Within her discussion of issues three and four, Ragan argues the trial court abused
its discretion by failing to explicitly find a material and substantial change in circumstances
since the divorce decree. 7 However, she does not reference any legal authority in support
of this argument. Accordingly, the issue is waived. See TEX. R. APP. P. 38.1(i). In any
event, we note that Ragan did not object, by a motion for new trial or otherwise, to the
trial court’s failure to explicitly find a material and substantial change in circumstances.
See TEX. R. APP. P. 33.1(a)(1) (general rule for error preservation); In re P.M.G., 405
S.W.3d at 410 n.2. And here, a finding of a material and substantial change in
circumstances may be implied from the trial court’s judgment because such a finding was
supported by the evidence. See TEX. R. CIV. P. 299 (noting that, when one or more
elements of a ground of recovery “have been found by the trial court, omitted unrequested
elements, when supported by evidence, will be supplied by presumption in support of the
7 Generally, a court may modify an order affecting the parent-child relationship only if modification
would be in the best interest of the child and:
the circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or collaborative law settlement
agreement on which the order is based . . . .
TEX. FAM. CODE ANN. § 156.101(a)(1). The trial court’s August 21, 2020 order and its Conclusion of Law
No. 1 both generally state that the allegations in the parties’ pleadings “have merit,” but they do not explicitly
state that there has been a material and substantial change in circumstances since the divorce.
20
judgment”); In re H.N.T., 367 S.W.3d 901, 904 (Tex. App.—Dallas 2012, no pet.). Both
parties alleged in their pleadings that there had been a material and substantial change
in circumstances since the divorce decree, and the evidence adduced at trial almost
entirely concerned events which took place after the decree was rendered. Ragan does
not argue on appeal that the evidence was insufficient to support this implied finding. We
overrule this unenumerated issue.
Ragan raises several issues challenging the trial court’s central ruling in this
case—i.e., its determination that Muehlfeld shall have six supervised visits with Z.J.M.A.
before beginning standard unsupervised visitation. Her fifth issue argues the trial court
abused its discretion by making this ruling; her sixth issue argues the evidence was
factually insufficient to support the ruling; her seventh issue argues there was no evidence
to support Conclusion of Law No. 3, which reiterated the ruling; and her eighth issue
argues the ruling was not in Z.J.M.A.’s best interests. Ragan’s tenth through twelfth issues
concern the trial court’s conclusion that “[t]here is no credible evidence to support the
denial of this father’s normal and unfettered access to his child under the guidelines of
joint managing conservatorship.” Her tenth issue argues this conclusion was supported
by factually insufficient evidence; her eleventh issue argues the conclusion was
erroneous; and her twelfth issue argues there was no evidence to support the conclusion.
We address these issues together.
“The best interest of the child shall always be the primary consideration of the court
in determining the issues of conservatorship and possession of and access to the child.”
TEX. FAM. CODE ANN. § 153.002; see In re Marriage of Christensen, 570 S.W.3d 933, 938
(Tex. App.—Texarkana 2019, no pet.). In determining the best interests of the child,
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courts may consider the following factors: (1) the desires of the child; (2) the emotional
and physical needs of the child now and in the future; (3) the emotional and physical
danger to the child now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals to promote the
best interest of the child; (6) the plans for the child by the individuals seeking custody; (7)
the stability of the home or proposed placement; (8) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is not a proper one; and (9)
any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). “Proof of best interest is not limited to these factors, nor do all factors
always apply in every case.” In re S.A.H., 420 S.W.3d 911, 926 (Tex. App.—Houston
[14th Dist.] 2014, no pet.).
As to the first Holley factor, the evidence established that throughout 2017 and
2018, Z.J.M.A. resisted attending visits with Muehlfeld at Ragan’s parents’ house, at
Zorn’s office, and at KidShare. However, the child was too young at that time to have
credibly stated her desires. As to the second factor, the evidence showed that Z.J.M.A.
had problems with eating, sleeping, and bedwetting after her visits with Muehlfeld, for
which she underwent extensive therapy.
As to the third, fourth and eighth factors—concerning danger to the child, parenting
abilities, and the nature of the parent-child relationship—Ragan suspected that Muehlfeld
physically injured Z.J.M.A. as an infant, when he took her to the backyard of her parents’
house in 2015. Ragan also accused Muehlfeld of improperly changing the child’s diaper,
and she believed, based on Z.J.M.A.’s reaction over the following several days, that
Muehlfeld acted improperly while taking the child to the bathroom during the May 30, 2018
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visit at KidShare. Finally, according to Zorn, Z.J.M.A. reported that Muehlfeld “kicked” and
“punched” her. However, Muehlfeld denied that he physically mistreated the child on any
occasion, and the trial court was entitled to believe those denials. See In re P.M.G., 405
S.W.3d at 410.
Also relevant to the eighth Holley factor is Ragan’s request for Muehlfeld to
voluntarily relinquish his parental rights, and Muehlfeld’s consideration of that request. In
the phone call introduced as evidence, Ragan explained to Muehlfeld that she wanted
him to relinquish his rights because his unannounced visits had a “[n]egative [e]ffect” on
Z.J.M.A., though she claimed she would still allow him to visit with the child even if his
rights were terminated. The trial court could have concluded from this evidence that
Ragan did not want Muehlfeld to have legally-enshrined visitation rights; and it could have
further concluded that, without a direct path to standard unsupervised possession, Ragan
would resist facilitating regular visits between Z.J.M.A. and her father. It is important to
note that neither the divorce decree, nor the temporary orders, nor the final judgment in
this case allow Muehlfeld to make unannounced visits.
Ragan argues that “there was absolutely no evidence or testimony of either a
substantive or probative character” to support the trial court’s decision to order six four-
hour supervised visits followed by standard unsupervised visitation. She emphasizes that
no witness explicitly testified that this particular arrangement was in Z.J.M.A.’s best
interests. However, “[i]t is a rebuttable presumption that the appointment of the parents
of a child as joint managing conservators is in the best interest of the child.” TEX. FAM.
CODE ANN. § 153.131(b). Though “[a] finding of a history of family violence involving the
parents of a child removes” that presumption, id., the trial court made no such finding in
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this case; and as noted, the court was within its discretion to credit Muehlfeld’s testimony
that he did not physically mistreat Z.J.M.A. Moreover, there is a rebuttable presumption
that a standard possession order is in the best interest of the child, regardless of whether
the parent is named possessory or managing conservator. Id. § 153.252. 8
Considering all the evidence in this case in the light most favorable to the judgment,
we cannot say the trial court abused its discretion in naming the parties joint managing
conservators and ordering six supervised visits before a standard possession order would
take effect. The trial court evidently did not believe that Muehlfeld presented a physical
danger to Z.J.M.A., and there was no evidence from which the court could have concluded
that Muehlfeld’s living arrangements were unsuitable for the child to have regular visits.
Ragan’s evidence—which she claims supports an order requiring supervised visits on a
permanent basis—primarily concerned Z.J.M.A.’s reactions to seeing Muehlfeld as well
the child’s “regressive” behavioral “tendencies” which occurred after the visits.
Specifically, Z.J.M.A. “started screaming hysterically” at a visit in 2015; she hid from
Muehlfeld for an hour at a visit in 2017; she turned around and ran away crying at the first
visit in 2018 at Zorn’s office; and she did not want to go to the second visit at KidShare.
Cantu testified that he was “concerned” about Z.J.M.A.’s safety and her relationship with
Muehlfeld because of the child’s reactions to his visits. However, while Ragan casts doubt
on Muehlfeld’s parenting abilities, the court could have found from the evidence that
Muehlfeld did not act inappropriately in any of the various supervised visitation settings.
8 If the trial court orders a possession arrangement that varies from the standard possession order,
it must “state in writing the specific reasons for the variance” upon a party’s request. Id. § 153.258. Though
Ragan generally requested findings of fact and conclusions of law, no party specifically requested the trial
court to state its reasons for varying from the standard possession order, and the court’s findings and
conclusions do not contain such specific reasons.
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The parties in this case have made commendable efforts to ensure that Z.J.M.A.
has a healthy, meaningful relationship with her father. And this Court is certain that
Ragan’s actions throughout the case have been motivated by genuine concern for the
well-being of the child. But that does not mean it is in the child’s best interest for her to
have only supervised contact with Muehlfeld indefinitely. Simply put, the fact that the child
had minor behavioral difficulties following visits does not, by itself, rebut the presumption
that a standard possession order would be in the child’s best interests. See TEX. FAM.
CODE ANN. § 153.252. Here, the trial court ordered six four-hour supervised visits, to take
place over at least two months, before the standard possession order takes effect. We
conclude that the trial court did not err in concluding that such an arrangement is in
Z.J.M.A.’s best interests. We overrule Ragan’s fifth through eighth and tenth through
twelfth issues.
C. Parenting Facilitator
Ragan raises seven issues concerning the trial court’s appointment of Warzecha
as a “parenting facilitator” tasked with supervising Muehlfeld’s first six visits with Z.J.M.A.
By issue thirteen in particular, Ragan contends that the court erred by making the
appointment without holding a hearing or making necessary findings under family code
§ 153.6051(b).
A trial court in a suit affecting the parent-child relationship may, on its own motion
or on a motion or agreement by the parties, appoint a parenting facilitator. TEX. FAM. CODE
ANN. § 153.6051(a). However, the court
may not appoint a parenting facilitator unless, after notice and hearing, the
court makes a specific finding that: (1) the case is a high-conflict case or
there is good cause shown for the appointment of a parenting facilitator and
the appointment is in the best interest of any minor child in the suit; and (2)
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the person appointed has the minimum qualifications required by Section
153.6101, as documented by the person.
Id. 153.6051(b). Here, there is no indication that a hearing was held before the trial court
made the appointment. Moreover, though the judgment states that Warzecha meets the
minimum qualifications required by § 153.6101, neither the final judgment nor the findings
of fact and conclusions of law state that “the case is a high-conflict case,”9 that there is
good cause for the appointment of a facilitator, or that the appointment of a facilitator is
in Z.J.M.A.’s best interest. See id. Accordingly, the trial court erred by appointing a
parenting facilitator in this case. Ragan’s thirteenth issue is sustained. 10
We emphasize that we do not disturb the trial court’s rulings: (1) that Muehlfeld’s
first six four-hour visits with Z.J.M.A. shall be supervised, and (2) that Ragan shall pay
the supervisor’s costs.
D. Attorney’s Fees and Expenses
Ragan’s final two issues concern the trial court’s rulings on attorney’s fees and
expenses. By her twentieth issue, she contends there was no evidence to support the
award of $7,800 in fees and expenses to Muehlfeld. By her twenty-first issue, she
contends the trial court erred by failing to award fees to her.
A trial court in a suit affecting the parent-child relationship (SAPCR) has “general
discretion” to render judgment for reasonable attorney’s fees and expenses. Tucker v.
Thomas, 419 S.W.3d 292, 296 (Tex. 2013) (citing TEX. FAM. CODE ANN. § 106.002(a) (“In
9 A “high-conflict case” is defined as “a suit affecting the parent-child relationship in which the court
finds that the parties have demonstrated an unusual degree of: (A) repetitiously resorting to the adjudicative
process; (B) anger and distrust; and (C) difficulty in communicating about and cooperating in the care of
their children.” Id. § 153.601(2).
10 In light of our conclusion, we need not address Ragan’s other issues concerning the appointment
of a parenting facilitator. See TEX. R. APP. P. 47.1.
26
a [SAPCR], the court may render judgment for reasonable attorney's fees and expenses
and order the judgment and postjudgment interest to be paid directly to an attorney.”);
Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002)). An award of attorney’s fees must be
supported by evidence that the fees are reasonable and necessary. See Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 484 (Tex. 2019). The
reasonableness of attorney’s fees is a question of fact, and an appellate court may not
substitute its judgment for that of the factfinder. Guimaraes v. Brann, 562 S.W.3d 521,
551 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
At the final hearing, Ragan’s counsel testified that he has practiced law in Texas
since 1973 and has been board certified in family law since 1979. He introduced billing
records indicating that Ragan paid a $10,000 retainer and that he billed $10,560 in
additional necessary services since the beginning of the case. He testified that his hourly
billing rate of $450 was a reasonable fee for his services.
Muehlfeld’s counsel testified that she has practiced law since 1994, primarily in
family law. She stated that she charged her client a “flat fee” of $5,500; had “subpoena
expenses of $800”; a “mediation fee of $800”; and an “expert fee from KidShare of $300.”
Counsel stated that the total amount of $7,400 is fair and reasonable for Guadalupe
County. On cross-examination, she acknowledged that the mediation fee was $650 per
party. Counsel offered into evidence a contract reflecting that her billing rate was $300
per hour “if services are discontinued prior to completion.”
This evidence supported an award of no more than $7,250 in reasonable attorney’s
fees and expenses to Muehlfeld. See TEX. FAM. CODE ANN. § 106.002(a); Diaz v. Diaz,
350 S.W.3d 251, 257 (Tex. App.—San Antonio 2011, pet. denied) (noting that expert
27
witness fees are “expenses” recoverable in a SAPCR under § 106.002). We sustain
Ragan’s twentieth issue in part and modify the judgment to reflect that Muehlfeld shall
recover $7,250 in attorney’s fees and expenses from Ragan in the form and method
provided in the judgment. However, we conclude the trial court did not abuse its discretion
in declining to award fees to Ragan. We overrule her twenty-first issue.
III. CONCLUSION
We modify the trial court’s judgment (1) to delete the appointment of a parenting
facilitator under family code § 153.6051, (2) to reflect that the parties were named joint
managing conservators of Z.J.M.A., and (3) to reflect that Muehlfeld is awarded $7,250
in attorney’s fees and expenses. The judgment is affirmed as modified.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
17th day of February, 2022.
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