in the Interest of D.J.E. and L.T.E., Children ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00028-CV
IN THE INTEREST OF D.J.E. AND L.T.E., CHILDREN
From the 378th District Court
Ellis County, Texas
Trial Court No. 74459D
MEMORANDUM OPINION
Dana (Ewton) Barnes appeals from an order granting a motion to modify the
parent-child relationship which gave John Timothy ("Tim") Ewton the right to establish
the domicile of their children, D.J.E. and L.T.E., and ordered her to pay child support
and attorney's fees. Dana complains that the evidence was legally and factually
insufficient to support the trial court's findings of fact and conclusions of law. We
affirm the judgment of the trial court.
Procedural History
Dana and Tim were divorced on February 29, 2008. The agreed divorce decree
named the parties as joint managing conservators with Dana having the exclusive right
to establish the children's domicile and Tim having expanded standard possession. Tim
was ordered to pay child support to Dana.
In December of 2009 Tim filed a petition to modify the divorce decree seeking to
be named the conservator with the right to establish the children's domicile and
injunctions to prevent Dana from taking certain actions relating to the children. In
January of 2010 Dana filed a counterpetition seeking to be named the sole managing
conservator of the children, for supervised visitation, and for increased child support.
The trial court ordered that a social study be prepared by Nancy Stark at the
temporary orders hearing. The social study was prepared and filed with the trial court
in October of 2010 and supplemented in November of 2011 after Tim's marriage to Kim
Ewton. The social study recommended a split visitation schedule of one week with one
parent, the next week with the other parent, and so on. Stark further recommended that
if the trial court did not find that visitation schedule appropriate that Tim should be
named the conservator with the right to establish the children's domicile.
Almost immediately after the social study was initially filed Dana demanded a
jury trial. In April of 2011 Dana amended her pleadings to delete most of her
previously requested relief leaving a request for slight changes in possession and access
as well as a request for an increase in child support. That month Dana also withdrew
her jury demand.
In the Interest of D.J.E. and L.T.E. Page 2
The final hearing took place over several days in November of 2011 and the trial
court rendered judgment that the modification requested was granted and Tim was
named the conservator with the right to establish the children's domicile, several
injunctions against Dana and Tim were entered, and Dana was ordered to pay child
support and provide health insurance.
Sufficiency of the Evidence
Each of Dana's nine issues complains that the evidence was legally or factually
insufficient to support the judgment of the trial court. Dana complains that the
evidence was legally and factually insufficient for the trial court to have given Tim the
right to establish the domicile of the children, other rights to be exclusively given to
Tim, and to have given her a modified standard possession order (Issues One and Two).
Dana also complains that the evidence was legally and factually insufficient for the trial
court to have found that she had denied Tim possession of the children on multiple
occasions, that the testimony of the court-appointed expert was credible, and that it was
in the best interest of the children for her to pay child support to Tim (Issues Three and
Four). Dana's challenge to the award of child support does not complain of the amount
being improper or incorrect but that it was improper to order her to pay support at all
because of the insufficiency of the evidence as otherwise complained of in her brief.
Dana further complains that the evidence was legally and factually insufficient to
support the award of attorney's fees (Issues Five and Six). Dana also complains that the
In the Interest of D.J.E. and L.T.E. Page 3
evidence was factually insufficient for the trial court to have entered permanent
injunctions against Dana (Issue Seven). Dana finally complains that the evidence was
legally and factually insufficient to support the trial court's conclusions of law (Issues
Eight and Nine). We will address these issues jointly as much as possible.
Standard of Review for Modification of Conservatorship
The trial court may modify an order that provides for the appointment of a
conservator of a child, that provides the terms and conditions of conservatorship, or
that provides for the possession of or access to a child 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. TEX. FAM. CODE ANN.
§ 156.101 (West 2008). The trial court has wide latitude in determining the best interest
of a child, and the decision of the trial court will be reversed only when it appears from
the record as a whole that the trial court has abused its discretion. In re Marriage of
Stein, 153 S.W.3d 485, 488 (Tex. App.—Amarillo 2004, no pet.). A trial court abuses its
discretion when it acts in an arbitrary or unreasonable manner, or when it acts without
reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d
223, 226 (Tex. 1991).
Under this standard of review, legal and factual sufficiency of the evidence are
not independent grounds for asserting error but are relevant factors in assessing
whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.
In the Interest of D.J.E. and L.T.E. Page 4
App.—Dallas 1999, no pet.). In determining whether there has been an abuse of
discretion because the evidence is legally or factually insufficient to support the trial
court's decision, we consider whether the 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.). "The traditional
sufficiency review comes into play with regard to the first question. With regard to the
second question, we determine, based on the elicited evidence, whether the trial court
made a reasonable decision." In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth
2005, no pet.) (footnote omitted).
It is for the trier of fact to draw inferences from the evidence, resolve conflicts in
the evidence, and judge the credibility of witnesses. City of Keller, 168 S.W.3d at 819-21;
Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (Tex. 1951). Furthermore, the trial
court faces the parties and the witnesses, observes their demeanor and personality, and
feels the forces, powers, and the influences that cannot be discerned by merely reading
the record. In re Marriage of Bertram, 981 S.W.2d 820, 826 (Tex. App.—Texarkana 1998,
no pet.). When a trial court is presented with conflicting evidence, it may believe one
witness and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
The trial court is in a better position to analyze the facts, weigh the virtues of the parties,
and determine what will be in the best interest of a child. Id.
In the Interest of D.J.E. and L.T.E. Page 5
The best interest of the child is always the primary consideration in determining
issues of conservatorship, possession of and access to the child, and child support. TEX.
FAM. CODE ANN. § 153.002 (West 2008); In re J.A.H., 311 S.W.3d at 541. In determining
the best interest of the child, we consider the public policies outlined in the family code
which are to (1) assure that children will have frequent and continuing contact with
parents who have shown an ability to act in the best interest of the child, (2) provide a
safe, stable, and nonviolent environment for the child, and (3) encourage parents to
share in the rights and duties of raising their child after the parents have separated or
dissolved their marriage. TEX. FAM. CODE ANN. § 153.001(a)(1)-(3) (West 2008).
There are no rigid or definite guidelines governing the determination of whether
a material and substantial change of circumstances has occurred. In re A.L.E., 279
S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Some examples of
material changes include (1) remarriage by a party, (2) poisoning of the child's mind by
a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent
or stepparent, and (5) a parent's becoming an improper person to exercise custody. Id.
at 428-29.
Factual Background
Beginning in late 2006, while married to Tim, Dana became involved in an
extramarital affair with Mike Barnes, who was also married. Dana and Tim were
divorced in February of 2008. By that date Dana had already moved in with Mike who
In the Interest of D.J.E. and L.T.E. Page 6
had already been divorced as well, and they got married later in 2008. Tim became
involved with Kim in January of 2010 and they got married in March of 2011. At the
time of the final hearing in this modification action, D.J.E. was nine years old and L.T.E.
was six years old.
A review of the record shows that Tim's primary concern was about Mike and
his relationship with and methods of discipline of the children. There was testimony
that the children were terrified of Mike's response to any perceived acts of misbehavior
by the children. Mike was accused of excessive spanking, having the children tear up
cardboard boxes with their hands for long periods of time, which resulted in cuts and
redness to D.J.E., and making L.T.E. stand in a corner. Mike also was seen holding
L.T.E. up in the air over his head and yelling at him regarding how badly he had played
football. At football games and other events, the testimony showed that Mike would
restrain the children from having contact with their father. Witnesses described how
the demeanor of the children was significantly different when Mike was present as
opposed to when they were with Tim outside of Mike's presence. Tim testified that the
children had been told by Mike and Dana that they were not allowed to drink sodas or
eat ice cream when they were at Tim's home. Punishment for breaking the rules at
Tim's house would result in Dana not tucking them in for a few nights or a spanking or
other discipline. Kim testified to the depth of emotional trauma the children were
In the Interest of D.J.E. and L.T.E. Page 7
suffering because of their fear of Mike learning that they had broken the rules at Tim's
house.
Further, Tim was concerned that routinely Dana did not inform Tim of school
events, teacher conferences, or doctor's appointments, which made it difficult for Tim to
participate in those events. Because Dana would not inform him of events and teacher
conferences Tim would attempt to be involved with school by contacting the teachers
separately. Tim was shown to be an involved and capable parent. Tim believed that
Dana inappropriately allowed Mike to discipline the children and lacked the fortitude
to challenge Mike on issues relating to the children. Tim alleged that Mike was telling
the children about the ongoing legal proceedings, which Tim and Dana had been
enjoined from doing in the temporary orders. Tim also complained that Dana had
denied his court-ordered possession of the children more than once.
Dana and Mike testified that the incidents of which Tim complained did not
occur and that Mike's interactions with the children were not as described by Tim, Kim,
and Tim's other witnesses. Further, Dana was concerned because Tim had been
sexually abused as a child and suffers from depression. Dana contended that Tim had
been suicidal previously and had even written suicide notes to the children, which Tim
denied. Dana and Mike were also concerned that Tim allowed the children to sleep in
his bed on occasion and had showered with the children when they were younger.
In the Interest of D.J.E. and L.T.E. Page 8
The social study and the supplement indicated that Stark had spent a good deal
of time with the parties, their new spouses, the children in the homes, and other
references before making her recommendation of either split possession or Tim being
the conservator with the right to establish the children's domicile. Stark had concerns
about Mike's discipline of the children and Dana's ability to stand up to Mike. The trial
court's findings of fact indicate that the trial court found Stark's testimony to be
credible.1
Ultimately the evidence presented in this case came down to the trial court's
determination of whose version of events it believed was credible. The trial court was
able to observe the testimony of each of the witnesses and made that determination.
Based on our review of the record, we find that the evidence was legally and factually
sufficient for the trial court to have determined that the circumstances of the parties and
the children had materially and substantially changed and that naming Tim as the
parent with the exclusive right to establish the children's residence was in the children's
1 Dana attempted to attack the credibility of Stark and the social study through an expert witness;
however, the trial court sustained Tim's objections to the qualifications of the witness to provide expert
testimony relating to the preparation of social studies. In various places in her brief to this Court, Dana
complains of the exclusion of the testimony; however, her objection was not preserved. To preserve error
in a trial court's exclusion of evidence, the substance of the excluded evidence must be shown by an offer
of proof unless it is apparent from the context of the questions asked. TEX. R. EVID. 103(a)(2); TEX. R. APP.
P. 33.2; Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 433 (Tex. 1984). "Without a bill of exceptions
showing what the excluded testimony would have been, we cannot determine whether the testimony was
inadmissible on some other ground or whether its exclusion was otherwise harmless error." Duncan, 665
S.W.2d at 433.
In the Interest of D.J.E. and L.T.E. Page 9
best interest.2 We find that the trial court had sufficient information upon which to
exercise its discretion. See In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth
2010, no pet.).3 Further, we find that based on the elicited evidence the trial court made
a reasonable decision and therefore there was no abuse of discretion in the trial court's
decision to modify the divorce decree. See In re W.M., 172 S.W.3d 718, 725 (Tex. App.—
Fort Worth 2005, no pet.). We overrule issues one, two, three, and four. We overrule
issues eight and nine except as to the conclusion of law regarding attorney's fees, which
will be addressed below.
Attorney's Fees
Dana complains in issues five, six, and part of issues eight and nine that the
evidence was legally and factually insufficient to support the trial court's findings of
fact and conclusion of law regarding the award of attorney's fees to Tim. It is within the
trial court's discretion to award reasonable attorney's fees to the prevailing party in a
suit affecting the parent child relationship. TEX. FAM. CODE ANN. § 106.002 (West 2008);
2 Dana also complains of the admission of evidence relating to observations by Stark and audio
recordings of the children which she contends were inadmissible. These complaints are inadequately
briefed because there are no citations to the record and no specificity regarding which portion of Stark's
testimony, the social study, or of the recordings were objectionable contained in the brief. TEX. R. APP. P.
33.1(i).
3 Inherent in this holding is that the evidence was legally and factually sufficient for the trial court to have
given Tim the exclusive rights to make decisions regarding medical, psychiatric, or psychological
treatment; education; represent the children in legal actions; receive child support; consent to marriage
and military enlistment; services and earnings of the children; and to act as the children's agent as set
forth in section 151.001 of the Family Code. TEX. FAM. CODE ANN. §§ 151.001, 153.071 (West 2008).
In the Interest of D.J.E. and L.T.E. Page 10
Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002); In re A.M.W., 313 S.W.3d 887, 892 (Tex. App.—
Dallas 2010, no pet.). Tim was the prevailing party in this action.
Dana contends that the record does not support the award of attorney's fees
based on the evidence submitted to the trial court and because the trial court did not
award interim attorney's fees at each hearing during the pendency of the case.
However, Dana does not support these contentions with citations to the record nor does
she specify what amount of the fees were inappropriately awarded to Tim.
The reasonableness of an attorney's fee award is a question of fact and must be
supported by competent evidence. In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—
Dallas 2007, no pet.). There should be evidence of time spent by the attorney on the
case, the nature of the preparation, the complexity of the case, the experience of the
attorney, and the prevailing hourly rates. Id. The court may also consider the entire
record and the common knowledge of the lawyers and judges. Id.
Tim's attorney testified that she has been practicing law since 2004 and was
practicing family law exclusively for the firm of Koons Fuller. She charges $250.00 an
hour for her time and $125.00 an hour for her legal assistant's time. Admitted into
evidence was an exhibit with her employment contract and billing that described the
actions taken on the case and how much was charged for each action. She requested a
total of $68,492.02 in attorney's fees that included estimates for the time spent in the
final hearing. The trial court awarded Tim's attorney $34,246.01 in attorney's fees,
In the Interest of D.J.E. and L.T.E. Page 11
which is half of the amount requested. The court's award is supported by the evidence.
We overrule issues five, six, and the rest of issues eight and nine.
Permanent Injunctions
Dana complains in her seventh issue that the evidence was factually insufficient
to support the trial court's findings of fact relating to the reasons for the issuance of the
permanent injunctions because "no credible evidence was presented by any witness
with personal knowledge that Mike Barnes had engaged in a pattern of inappropriate
and physically and emotionally abusive behavior toward the children," that the other
allegations of Mike's hostility and threatening behavior toward Tim was "contradicted
by testimony under cross-examination," and Dana did not admit or contradicted those
claims. Dana does not cite to the record or provide any citations or other argument in
support of this issue. We find that, as stated previously, the trial court was indeed in
the best position to evaluate the evidence and ultimately determined that the evidence
presented of Mike's discipline of the children, the hostile and alienating behavior of
Mike toward Tim, and Dana's refusal or inability to stop Mike's behavior was credible
and our review of the record substantiates the sufficiency of the evidence regarding
those findings. The trial court did not abuse its discretion by entering the permanent
injunctions against Dana.4 We overrule issue seven.
4 Mike Barnes was not a party to this action and the judgment does not enjoin Mike, although the
judgment prevents Dana from allowing Mike to discipline the children, to be present during exchanges of
the children, or to supervise the children overnight without Dana's presence.
In the Interest of D.J.E. and L.T.E. Page 12
Conclusion
Having found no abuse of discretion by the trial court, we affirm the judgment of
the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Judge Trudo5
Affirmed
Opinion delivered and filed February 14, 2013
[CV06]
5The Honorable Martha J. Trudo, Judge of the 264th District Court of Bell County, sitting by assignment
of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code.
See TEX. GOV’T CODE ANN. § 74.003(h) (West 2005).
In the Interest of D.J.E. and L.T.E. Page 13