in the Interest of A.B.R., W.C.R., and K.R.R, Minor Children ( 2018 )


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  •                                 Fourth Court of Appeals
    San Antonio, Texas
    CONCURRING AND DISSENTING OPINION
    No. 04-17-00220-CV
    IN THE INTEREST OF A.B.R., W.C.R., and K.R.R, Children
    From the 45th Judicial District Court, Bexar County, Texas
    Trial Court No. 2014-CI-19862
    Honorable Stephani A. Walsh, Judge Presiding
    Opinion by: Luz Elena D. Chapa, Justice
    Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
    Sitting:          Sandee Bryan Marion, Chief Justice
    Karen Angelini, Justice
    Luz Elena D. Chapa, Justice
    Delivered and Filed: August 22, 2018
    I concur in the majority’s reversal of the portion of the trial court’s order requiring Carlos
    to post a bond. However, I believe the record contains some evidence of a substantive and
    probative character to support the trial court’s finding of a material and substantial change in
    circumstances since the date of the signing of the mediated settlement agreement. Because the
    majority holds to the contrary, I respectfully dissent.
    As the majority notes, a trial court has the discretion to modify a final order regarding
    conservatorship and possession of a child if the circumstances of the child, a conservator, or other
    party affected by the order have materially and substantially changed since the earlier of: (1) the
    date of the rendition of the order; or (2) the date of the signing of the mediated settlement
    agreement on which the final order is based. TEX. FAM. CODE ANN. § 156.101(a) (West 2014). In
    this case, the mediated settlement agreement was signed on March 4, 2015. Since that date is
    Concurring and Dissenting Opinion                                                   04-17-00220-CV
    earlier than the date of the final order, we consider evidence of changes between the circumstances
    that existed on March 4, 2015 and the circumstances at the time the modification was filed in
    August of 2016. See Zeifman v. Michels, 
    212 S.W.3d 582
    , 594 n.1 (Tex. App.—Austin 2006, pet.
    denied); Gibbs v. Greenwood, 
    651 S.W.2d 377
    , 379 (Tex. App.—Austin 1983, no writ).
    As the majority also notes, we review a modification order under an abuse of discretion
    standard. Smith v. Karanja, 
    546 S.W.3d 734
    , 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
    And under an abuse of discretion standard, we may not interfere with the trial court’s decision “so
    long as some evidence of a substantive and probative character supports it and the ruling comports
    with the law.” In re C.M.G., 
    339 S.W.3d 317
    , 319 (Tex. App.—Amarillo 2011, no pet.).
    A material and substantial change in circumstances may include a change in the home
    surroundings. See 
    Karanja, 546 S.W.3d at 741
    ; In re T.M.P., 
    417 S.W.3d 557
    , 564 (Tex. App.—
    El Paso 2013, no pet.); In re A.L.E., 
    279 S.W.3d 424
    , 428-29 (Tex. App.—Houston [14th Dist.]
    2009, no pet.). In this case, the evidence established that on the date the mediated settlement
    agreement was signed, Carlos and Victoria agreed to enter an order regarding the conservatorship,
    possession and access, and support of the children but to nonsuit their divorce. It is undisputed
    that after the mediated settlement agreement was signed, the divorce proceeding was dismissed.
    The children’s therapist’s notes, which were introduced into evidence, contain an entry dated
    March 19, 2015, documenting a phone call from Victoria to the therapist in which Victoria told
    the therapist she and Carlos “will stay married and living together for time being — dad to go to
    Puerto [R]ico but back on weekends.” The evidence also established that Carlos continued to live
    in the home with Victoria and the children for a short period of time after the mediated settlement
    agreement was signed; however, Carlos last resided in the home with Victoria and the children at
    the end of May 2015, and Carlos filed a second divorce petition in the fall of 2015. Therefore,
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    Concurring and Dissenting Opinion                                                       04-17-00220-CV
    rather than sharing a home with the children at least on the weekends, Carlos and Victoria were no
    longer sharing a home at the time the modification was sought.
    In addition, determining whether changed circumstances are material and substantial is not
    guided by rigid rules. 
    Zeifman, 212 S.W.3d at 593
    . Instead, the determination is fact specific;
    therefore, the determination depends on the facts in each case and must be made according to the
    circumstances as they arise. In re S.N.Z., 
    421 S.W.3d 899
    , 910 (Tex. App.—Dallas 2014, pet.
    denied); 
    Zeifman, 212 S.W.3d at 593
    . On the date the mediated settlement agreement was signed,
    the children had been and continued to be engaged in therapy. The children’s therapist testified
    that historically her relationship with the children was effective; however, she further testified, “I
    think that is changing because the children are concerned about what I’m going to tell parents
    about what they say. And I think they’re getting closed down and mistrusting.” The therapist also
    testified that she could return to providing effective therapy if she could tell the children “nothing
    goes beyond me.” Therefore, the evidence shows the children’s therapy was effective at the time
    the mediated settlement agreement was signed; however, the children had become closed down
    and mistrusting.
    Having reviewed the record, I believe the evidence that Carlos no longer shared a home
    with Victoria and the children along with the therapist’s testimony regarding the children’s
    changed behavior supports the trial court’s finding of a material and substantial change in
    circumstances.     Therefore, because there is “some evidence of a substantive and probative
    character” to support the trial court’s finding of a material and substantial change in circumstances,
    I respectfully dissent to the majority’s conclusion that the trial court abused its discretion in making
    that finding.
    Sandee Bryan Marion, Chief Justice
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Document Info

Docket Number: 04-17-00220-CV

Filed Date: 8/22/2018

Precedential Status: Precedential

Modified Date: 4/17/2021