in the Interest of Timothy Treadwell, a Child ( 2015 )


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  •                                    NO. 12-14-00301-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    IN THE INTEREST OF                               §     APPEAL FROM THE
    TIMOTHY TREADWELL,                               §     COUNTY COURT AT LAW
    A CHILD                                          §     CHEROKEE COUNTY, TEXAS
    MEMORANDUM OPINION
    Appellant Anthony Treadwell appeals the trial court’s order to modify the parent-child
    relationship. On appeal, Anthony presents one issue. We affirm.
    BACKGROUND
    Anthony Treadwell and Courtney Crawford are the parents of one child, Timothy, born
    May 16, 2009. Anthony and Courtney were divorced on June 23, 2010, and were appointed joint
    managing conservators of the child.       In the decree of divorce, Courtney was granted the
    exclusive right to designate the primary residence of the child. Anthony was granted possession
    of the child at any time that he was off work so long as he gave Courtney twenty-four hours
    notice.
    Courtney filed a petition to modify the parent-child relationship, stating that the
    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 the divorce decree. She requested
    that Anthony’s possession of, and access to, the child be modified to comply with a standard
    possession order, and that Anthony’s child support payments be increased. In response, Anthony
    requested that he be appointed as the conservator with the exclusive right to designate the
    primary residence of the child without regard to geographical location, and that he be designated
    as sole managing conservator of the child.
    A bench trial was held beginning on March 26, 2014. At the conclusion of the trial, the
    court rendered an order appointing Anthony and Courtney as joint managing conservators of the
    child and granting Courtney the exclusive right to designate the primary residence of the child in
    Cherokee County. Anthony was granted possession of, and access to, the child pursuant to a
    standard possession order. Further, he was ordered to pay an increased amount of child support.
    Anthony filed a motion for new trial, which was denied by operation of law, and the trial court
    filed findings of fact and conclusions of law. This appeal followed.
    SOCIAL STUDY
    In his first issue, Anthony argues that the trial court abused its discretion in sua sponte
    ordering a social study after the close of evidence. He also contends that the social study was
    inadequate, and therefore the trial court abused its discretion in using it to decide the case.
    Standard of Review
    A trial court’s modification of conservatorship is reviewed for abuse of discretion. In re
    P.M.B., 
    2 S.W.3d 618
    , 621 (Tex. App.—Houston [14th Dist.] 1999, no pet.). It is an abuse of
    discretion for a trial court to rule without supporting evidence. 
    Id. Under an
    abuse of discretion
    standard, the legal and factual sufficiency of the evidence are not independent grounds of error,
    but are relevant facts in assessing whether the trial court abused its discretion. In re Ferguson,
    
    927 S.W.2d 766
    , 769 (Tex. App.—Texarkana 1996, no writ). In the absence of a clear abuse of
    discretion, an appellate court should not substitute its judgment for that of the trial court. 
    Id. Applicable Law
           The court may order the preparation of a social study into the circumstances and
    condition of a child who is the subject of a suit or a party to a suit and the home of any person
    requesting conservatorship of, possession of, or access to a child.          TEX. FAM. CODE ANN.
    § 107.051(a) (West 2014). The social study is to be made a part of the record in every case and
    need not be tendered into evidence. Green v. Remling, 
    608 S.W.2d 905
    , 907 (Tex. 1980). Thus,
    in a bench trial, the court may consider the report regardless of whether it is formally introduced
    into evidence. Chacon v. Chacon, 
    978 S.W.2d 633
    , 636 (Tex. App.—El Paso 1988, no pet.). A
    party is entitled to call as a witness the author of the report to attack the accuracy of the
    information included or the conclusions drawn therefrom. Id.; see TEX. FAM. CODE ANN.
    § 107.055(c) (West 2014).
    2
    To present a complaint for review on appeal, the record must show that the complaint
    was made to the trial court by a timely request, objection, or motion that stated the grounds for
    the ruling that the complaining party sought with sufficient specificity to make the trial court
    aware of the complaint. TEX. R. APP. P. 33.1(a)(1). “[O]bjection to a trial court’s alleged
    improper conduct or comment must be made when it occurs if a party is to preserve error for
    appellate review, unless the conduct or comment cannot be rendered harmless by proper
    instruction.” Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 241 (Tex. 2001). A party waives error
    by failing to raise it in the trial court. Jacobs v. Satterwhite, 
    65 S.W.3d 653
    , 656 n.1 (Tex.
    2001).
    Analysis
    As a part of his first issue, Anthony argues that the trial court abused its discretion by sua
    sponte ordering a social study. The record shows that after both parties rested and made their
    closing arguments, the trial court stated that it was not prepared to make a final order, that it
    wanted to think about the case and review its notes, and wanted a social study to be completed
    on both parties’ homes. The trial court asked Anthony’s counsel if he had any objections. He
    responded that he had “no objection,” and the trial court ordered Jody Westbrook to complete a
    social study.
    Failure to present a timely and specific request, objection, or motion to the trial court for
    a ruling results in waiver or forfeiture of the right to present the claim on appeal. See TEX. R.
    APP. P. 33.1; 
    Jacobs, 65 S.W.3d at 656
    n.1. Because Anthony affirmatively stated that he had
    “no objection,” we hold that he waived any claim on appeal that the trial court abused its
    discretion in sua sponte ordering the social study.
    At the final hearing, the trial court denied Anthony’s motion for continuance and declined
    to reopen the evidence. The court stated further that it may have been “out of line in ordering the
    [social] study at the time,” but that it believed it was within its rights and ability as a court to do
    so. The court also informed the parties that it had reviewed its “pretty specific” notes from the
    hearing and briefly looked at the social study, but did not read the whole document. Moreover,
    the court states in its finding of fact number 19 that it did not consider the social study or its
    addendum in arriving at its findings of fact or conclusions of law. Therefore, we conclude that
    the trial court relied on its “pretty specific” notes to decide the case and did not consider the
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    social study or its addendum. Consequently, we need not address the adequacy of the social
    study.
    We overrule Anthony’s sole issue.
    DISPOSITION
    Having overruled Anthony’s sole issue, we affirm the judgment of the trial court.
    GREG NEELEY
    Justice
    Opinion delivered May 29, 2015.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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    (PUBLISH)
    5
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    MAY 29, 2015
    NO. 12-14-00301-CV
    IN THE INTEREST OF TIMOTHY TREADWELL, A CHILD
    Appeal from the County Court at Law
    of Cherokee County, Texas (Tr.Ct.No. 2010-04-0299)
    THIS CAUSE came to be heard on the appellate record and briefs filed
    herein, and the same being considered, it is the opinion of this court that there was no error in the
    judgment.
    It is therefore ORDERED, ADJUDGED and DECREED that the judgment
    of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
    against the Appellant, ANTHONY TREADWELL, for which execution may issue, and that this
    decision be certified to the court below for observance.
    Greg Neeley, Justice.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.