Mark Thornton and Debra Dempsey Thornton v. Amanda Cash and Dana Varney ( 2013 )

Affirmed and Memorandum Opinion filed April 18, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01092-CV
MARK THORNTON AND DEBRA DEMPSEY THORNTON, Appellants
V.
AMANDA CASH AND DANA VARNEY, Appellees
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2010-19565
MEMORANDUM OPINION
Appellants, Mark and Debra Dempsey Thornton, appeal from the trial
court’s modification of a conservatorship and possession order as part of the final
decree of divorce ending Amanda Cash and Dana Varney’s marriage. The order
changed the Thorntons’ status from joint managing conservators to possessory
conservators of Cash and Varney’s daughter, M.V. The trial court also ordered the
Thorntons to pay the amicus attorney’s fees as well as a portion of Cash’s
attorney’s fees. In three issues on appeal, the Thorntons contend that the trial
court: (1) improperly applied a parental presumption; (2) erred in failing to
consider the child’s objectives and preventing the amicus attorney from fully
participating in the trial; and (3) erred in assessing the amicus attorney’s fees and a
portion of Cash’s attorney’s fees against them. Finding no error, we affirm.
BACKGROUND
A. Procedural background
Cash and Varney were married in 1996. They eventually had two children, a
boy, M.H.V., and a girl, M.V. M.V., the child at issue in this appeal, was born in
2000. In 2004, the Thorntons filed an original suit seeking custody of M.V. (the
“2004 Case”).1 On January 15, 2010, pursuant to an agreed order, Cash and
Varney on the one hand, and the Thorntons on the other, were appointed joint
managing conservators of M.V. The January 2010 order awarded the Thorntons
specified periods of possession of M.V. and awarded Cash and Varney the
exclusive right to designate M.V.’s primary residence.
On March 26, 2010, Cash filed a petition for divorce from Varney (the
“Divorce Action”). In her petition, Cash asked the court, with respect to M.V., to
incorporate the January 2010 agreed order “into any Final Decree of Divorce in
this matter as if quoted verbatim.” Varney filed an answer and counter-petition for
divorce.
The Thorntons filed an answer in the Divorce Action, and then filed a
petition in intervention for conservatorship. In their petition in intervention the
1
Because the 2004 Case is not before us, the record on appeal does not reveal how the
Thorntons—who are not biologically related to M.V.—gained standing to seek custody of M.V.
In this case, the trial court removed the Thorntons as joint managing conservators, and we affirm
that decision as explained below. Cash and Varney have not appealed the trial court’s decision
to allow the Thorntons to continue as possessory conservators.
2
Thorntons alleged “there has been a material and substantial change of
circumstances since the rendition of the last order and modification of the terms
and conditions of access and periods of possession of [M.V.] on both a temporary
and final basis is necessary and in the best interest of the child.” In their
intervention petition, the Thorntons asked the trial court to award them additional
periods of possession of M.V. such that they would “have possession of [M.V.] at
all times not allocated to the parents.” The trial court appointed an amicus attorney
to represent the interests of the two children.
In November 2010, Cash and Varney filed a “Joint Motion to Modify
Parent-Child Relationship” in the 2004 Case. In their Joint Motion, Cash and
Varney alleged 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 rendition of the order to be modified.” In their joint motion, Cash
and Varney asked the trial court to remove the Thorntons as managing
conservators and to deny them any conservatorship over M.V.
The Thorntons then filed a “Counterpetition to Modify the Parent-Child
Relationship” in the 2004 Case. Once again, the Thorntons alleged 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 rendition of
the order to be modified.” In their Counterpetition, in addition to asking for other
relief, the Thorntons asked the trial court to grant them “the right to designate the
primary residence of the child.”
B. The bench trial regarding custody of M.V.
Eventually, the 2004 Case was consolidated into the Divorce Action. Cash
and Varney reached a mediated settlement agreement regarding their son and the
division of their property. All issues relating to M.V. were addressed in a bench
3
trial, which occurred on August 30 and 31, 2011. Four witnesses testified during
the bench trial. Because this appeal includes a challenge to the sufficiency of the
evidence supporting the trial court’s custody ruling, we discuss the evidence in
some detail.
1. Mother’s testimony
Cash, M.V.’s mother, testified first. Cash began by discussing the impact
the Thorntons’ alleged lack of cooperation was having on M.V. According to
Cash, the Thorntons made it impossible for Cash to enroll M.V. in school activities
and dance classes because they believed it would interfere with their Thursday
visitation. In addition, Cash testified that M.V. was unable to attend various
weekend activities, such as birthday and Halloween parties, that occurred on the
Thorntons’ weekends.
Cash’s testimony touched on M.V.’s education. Cash testified that M.V.
does well in school and that she regularly assists M.V. with her homework and
studying. Cash also testified that she regularly visits M.V.’s school and meets with
her teachers and counselors. Cash admitted that M.V. has had some disciplinary
problems at school and is frequently late to school when she is in the custody of
the Thorntons. Cash also testified that M.V. had received a Saturday detention and
it fell on a weekend when she was with the Thorntons. According to Cash, the
Thorntons failed to take M.V. to the detention and she faced possible suspension
from school as a result.
Cash also testified regarding her son, M.H.V., and his relationship with
M.V., his younger sister. According to Cash, the two siblings are close and M.V.
loves her brother. Cash testified that she was aware the Thorntons were not
interested in her son, and that she did not believe the siblings should be separated.
Cash also testified that her son does well in school, participates in the school
4
orchestra, and plays football. She explained that her son is able to participate in
more activities than M.V. Cash’s testimony also addressed inappropriate internet
activities by M.H.V. and her efforts to monitor those activities and discipline
M.H.V.
Cash admitted she was unemployed at the time of the bench trial but she
asserted that she has the ability to return to work as a licensed vocational nurse.
Cash also testified that she receives $406.00 each week in unemployment benefits
as well as Medicaid and food stamps.
Cash also testified regarding her voluntary surrender of her nursing license
in 2007. Cash explained that the Texas Board of Nursing has given her the
opportunity to get her license reinstated. Cash testified that, to regain her license,
she must successfully complete (1) a refresher course that costs $1,500.00; (2) six
months of supervised employment; and (3) three years of discretionary monitoring
by the board to ensure she is capable of working safely and ethically as a nurse.
Cash testified that she was in the process of meeting those conditions, but in the
meantime, she was enjoying the time she has with her children.
Cash’s testimony also covered her prior drug issues and she testified that
drugs were no longer a problem for her. Cash admitted that she has been required
to take or has voluntarily taken random drug tests since January 2010, and the
results of those tests have been negative. Cash also testified that she still attends
“NA” and “AA” twelve-step meetings, usually four or five times a week.2 Cash
admitted that she takes several prescription medications, including Meloxicam,
2
Cash did not testify to the full names of these two organizations. Later testimony
during the bench trial explained that “NA” stands for Narcotics Anonymous.
5
Suboxone, and Soma.3 Cash also admitted that she smokes in her apartment,
including when M.V. is present.
Cash admitted during her testimony that she had started a relationship with
Bruce Roberts. Cash also admitted that Roberts spends the night at her home on a
regular basis, but she did not believe this was disruptive for M.V. or set a bad
example. Cash’s testimony also addressed Roberts’s fifteen year old son, J.R., and
his online activities. According to Cash, these activities did not occur while J.R.
was in her home, but she had discussed them with him and he was punished for
those activities.
Cash also addressed M.V.’s attitude toward the Thorntons. Cash testified
that M.V. is not biologically related to the Thorntons. When asked if there have
been things that Cash had not been able to get or had refused to get M.V. that M.V.
wanted, Cash answered that there had been, but the Thorntons would often buy her
those things. Cash testified that the Thorntons had bought M.V. a cell phone and
laptop computer, items Cash had refused to purchase M.V. because she believed
M.V. was not old enough to have them. Cash testified that M.V. receives
Christmas gifts from the Thorntons and those gifts remain at the Thornton
residence. Cash also admitted M.V. likes to visit the Thorntons because, according
to Cash, M.V. “gets all kind of stuff,” including laptops, guinea pigs, and trips.
Cash testified that M.V. does not have permission to use the computer in her home,
but Mr. Thornton had created a Facebook page for her.
Cash testified that M.V. calls her “mom” or “mommy” and Varney “daddy.”
She also testified without objection that she is concerned that the Thorntons are
“not [M.V.’s] mom and dad, . . . and she needs as normal of an opportunity to be
3
Cash was not asked why she takes these prescription drugs. In addition, there is no
other evidence in the appellate record explaining the purpose of these three prescription drugs.
6
able to grow up in a family unit as possible.” Cash then testified that under the
January 2010 agreed order, the Thorntons have possession of M.V. 47% of the
time while she and Varney have M.V. the remaining 53%. Once they divorced,
Cash testified that unless the court changed the possession order, she and Varney
would have to divide their possession in half while the Thorntons would still have
possession of M.V. for 47% of the time. Cash testified, again without objection,
that she believed this was backwards and would not be fair to Varney, M.V.’s
father.
Cash also testified, during cross-examination by the Thorntons’ attorney,
that she had concerns about the care the Thorntons provide M.V. According to
Cash, she believes it is disruptive for M.V. to be “split three ways.” Cash also
testified that she believes it is disruptive for M.V. “to call non-related people
Mommy and Daddy.” Despite that, Cash admitted that M.V. is an important part
of the Thorntons’ lives and that M.V. has a relationship with them.
2. Father’s testimony
Varney was the next witness to testify. Varney testified that he had been
married to Cash for approximately fourteen years and it was the stress arising out
of M.V.’s continuing custody case that caused Cash and Varney to file for divorce.
Varney then testified about their efforts to cooperate in the raising of their children
despite the divorce. Varney testified they attend activities together, cooperate with
one another to make sure the two children get to school on time, and both help with
the homework.
Varney also testified that M.H.V. is a good student, athlete, and successful
student musician. Varney admitted that he had caught M.H.V. making
inappropriate postings on the internet. Varney explained that he has made efforts
to address that issue directly with M.H.V., by talking to M.H.V.’s school
7
counselors, and by placing parental controls on the computer. Varney denied
M.H.V. uses drugs and testified that M.H.V. has not caused any trouble at school
or otherwise.
Varney then turned to the topic of the impact of his separation from Cash on
his ability to interact with his children. Varney testified that he now sees both of
his children less than he has ever seen them before. Varney testified this was the
result of not only his efforts to work more to cover the expenses associated with
the divorce, child support, and the children’s ongoing activities, but also the
amount of time M.V. spends with the Thorntons.4 Varney testified that he did not
believe he would be able to have a full relationship with M.V. if the Thorntons’
possession periods remained unchanged.
According to Varney, under the present possession order, M.V. would miss
all of M.H.V.’s approaching football games because they occur on Thursday
evenings, which she spends with the Thorntons. Varney testified that the
separation of M.V. and M.H.V. was negatively impacting their relationship. In
addition, when she is unable to attend M.H.V.’s football games, M.V. would miss
the opportunity to interact with her friends who also attend the games. Varney
testified that M.V. has friends in Baytown, where both he and Cash live. Varney
testified that M.V. is able to visit with her Baytown friends when she stays at either
her mother’s or father’s residences, but is not able to do so when she stays with the
Thorntons, who live in Pasadena.
Varney was also questioned about Cash’s relationship with Roberts. Varney
admitted he has only met Roberts a few times and he does not know what kind of
man Roberts is and, as a result, he has concerns. (3RR64) Varney testified that he
4
Varney, who has a total of five children, admitted he had missed child support payments
for his children other than M.H.V. and M.V. in the past, and was now making those payments.
8
believed Cash met Roberts at an “NA” meeting.5 Varney testified that he is
concerned that Cash and Roberts are having a sexual relationship when M.V. is
staying at Cash’s apartment. Varney testified he is concerned that, because
Roberts lives in Texarkana, Cash might move there with the children.
Varney testified that he has had to accept the fact that the Thorntons are part
of M.V.’s life, their home is a comfortable environment for M.V., and it would not
be beneficial to completely remove them from her life, but he admitted it has still
been difficult to accept that they spend more time with his daughter than he does.
When asked what he would like the possession order for M.V. to include, Varney
testified he would prefer that she be with him, but failing that, that she be with her
mother. Varney also expressed a strong desire that the children remain in the same
area so he could “see them constantly.” Varney also testified that he believed
M.V. and M.H.V. should be together.
3. Mr. Thornton’s testimony
Mark Thornton was the third witness to testify during the bench trial.
Thornton began by stating that he and his wife were asking the court to award them
primary custody of M.V., including the right to designate her primary residence.
Thornton also testified that if the trial court decided to leave the possession periods
the same, he believed that requiring Cash and Varney to split their formerly shared
possession time in half was fair. Thornton admitted he refused Cash’s request that
M.V. be allowed to participate in dance classes on Thursday evenings. Thornton
believed this decision was in M.V.’s best interest because she would have missed
her therapist appointments as a result. According to Thornton, M.V.’s therapist is
5
Varney admitted during his testimony that he has regularly attended “NA” meetings for
eight years.
9
only available on Thursdays. Thornton admitted he did not work with Cash and
Varney in an effort to get M.V. into another therapy group when this conflict arose.
Thornton admitted that M.V. started visiting the Thorntons at their home
before they were married. When asked why, in his view, it was acceptable for
M.V. to visit the Thorntons’ home before they married, but it was not acceptable
for M.V. to be in Cash’s residence at the same time that Roberts was visiting,
Thornton answered: “I guess I see our situations as different.”
When asked if he takes any credit for M.H.V.’s various accomplishments,
Thornton answered: “[A]bsolutely not. I don’t claim credit for anything [M.H.V.]
does.” When asked about M.V.’s grades, Thornton agreed they were good.
Thornton then claimed credit for M.V.’s success. Thornton was then asked why, if
Cash and Varney “were capable of raising [M.H.V.] and turning him into a good
student and a football player and a statewide trombone player that they wouldn’t be
capable of doing the same thing for their daughter [M.V.]?” Thornton answered:
“From what I’ve seen, no.” Thornton also testified that he did not believe Cash
and Varney were good parents. Thornton admitted, however, that he believed
Varney is very good to his daughter.
Thornton was then asked a variety of questions by Cash’s attorney. During
that questioning, Thornton admitted he did not think it was healthy for a child to
have a “back door” she could use any time the child was not happy with her
parents by saying “I’m going to go live with someone else.” Thornton also
admitted he did not think it was healthy for a child to be torn between her
biological parents and third parties. Thornton admitted that he and his wife have
not bought M.V. any school clothes or supplies that they allow her to take home to
Cash’s residence. Thornton went on to admit they keep all of the things they buy
M.V. at their home. Thornton also admitted that when M.V. was staying with
10
them for the month of July, he refused to allow her to talk to Cash on the
telephone. Thornton went on to testify that he believed it was in M.V.’s best
interest to prevent her from talking with her mother for that entire month.
Thornton testified he did this out of his own belief that Cash prevents M.V. from
talking to them when she is staying with Cash.
Next, Thornton was questioned by his own attorney. During that
questioning, Thornton explained that he and his wife had agreed to the January
2010 custody settlement with Cash and Varney because they believed Varney
would be a continuing presence in the household. Thornton explained that he
believed Varney’s presence was important because Varney provided stability in the
family. Thornton went on to testify that he is concerned about Cash’s alleged drug
use. Thornton also testified that he is concerned that Cash is unemployed because
he believed it would prevent her from having the ability to support M.V. When
asked if it was in M.V.’s best interest to be primarily in her mother’s care,
Thornton answered, “Absolutely not.” Thornton also testified that, as a result of
Cash and Varney’s divorce, M.V. was required to change schools and he was
concerned about that change. However, Thornton admitted he had no idea of the
quality of M.V.’s new school.
4. Mrs. Thornton’s testimony
Debra Dempsey Thornton was the final witness to testify during the bench
trial. Dempsey Thornton began by explaining why she and her husband had
agreed to the January 2010 custody settlement. Among their reasons was that the
settlement kept M.V. in their lives and as a result, they would know if she was
okay. Dempsey Thornton also testified she agreed to the custody settlement
because she assumed Cash and Varney would remain together and as a result,
Varney would continue to maintain control and a watch on Cash. Dempsey
11
Thornton voiced concern about both M.H.V.’s and M.V.’s safety in Cash’s home.
Dempsey Thornton testified she is very concerned about M.H.V.’s internet
postings and she worries whether M.H. had been exposed to them.
Dempsey Thornton also testified regarding M.V.’s ongoing therapy at
DePelchin Children’s Center. Dempsey Thornton acknowledged that Cash and
Varney had originally placed M.V. in therapy at DePelchin several years prior to
the January 2010 custody settlement. According to Dempsey Thornton, M.V.’s
original therapist was Mollie Robins. Dempsey Thornton testified that she and her
husband went to DePelchin to speak with Robins, and she would not speak to them
about M.V.’s therapy. According to Dempsey Thornton, Robins terminated her
therapeutic relationship with M.V. soon thereafter. Once Robins had withdrawn,
Dempsey Thornton and her husband arranged, without consulting Cash or Varney,
for M.V. to start seeing a new therapist at DePelchin. According to Dempsey
Thornton, the new therapist spoke with them, as well as both Cash and Varney,
when she started seeing M.V.
Dempsey Thornton was then asked about Cash’s effort to enroll M.V. in a
dance class that met on Thursdays. Dempsey Thornton testified that on Thursdays
M.V. is in their custody and that is the day she goes to her therapy sessions.
According to Dempsey Thornton, Cash agreed with her that M.V. needed to
continue her therapy. During cross-examination by Varney’s attorney, Dempsey
Thornton admitted she did not know if therapy sessions were available on days
other than Thursday because she had never felt the need to check. Dempsey
Thornton testified that, while it might be possible for M.V. to go to therapy on a
day other than Thursday, Thursday was the only day when the Thorntons could
take her. Despite the fact that Cash and Varney agreed M.V. needed therapy, had
occasionally taken her to the Thursday therapy sessions, and had been responsible
12
for initiating her therapy and making sure she got to her sessions with Robins for
three years, Dempsey Thornton did not believe Cash and Varney would take M.V.
to therapy if it was scheduled on a day other than Thursday.
Dempsey Thornton was also asked about M.V.’s visits to her home at a time
when she and Thornton were living in the same house but were not married.
Dempsey Thornton said her situation was different from Cash allowing Roberts to
stay overnight because they “didn’t sleep in the same bed in front of [M.V.] and
. . . [they] did not have sex in that house with [M.V.] there.” Dempsey Thornton
continued that she believed Cash allowing Roberts to stay overnight would confuse
M.V. because she wanted M.V. “to have better morals than that.” Dempsey
Thornton agreed, however, that both sides in the custody dispute were trying to
instill religious and moral values in M.V.
Dempsey Thornton also testified she was very concerned about the
environment M.V. was being exposed to at Cash’s residence. Dempsey Thornton
testified she was concerned about Cash’s past erratic behavior as well as her
current relationship with Roberts. Dempsey Thornton continued that, as a result of
their postings on the internet, she was concerned about M.V. being left alone with
M.H.V. and Roberts’ teenaged son, J.R. In addition, Dempsey Thornton testified
she was concerned about M.V.’s safety because she believed Cash had previously
left M.V. in the care of Dennis Wayne Jackson. Dempsey Thornton testified she
believed Jackson had been shot and killed by the Pasadena police following a bank
robbery.
C. The trial court’s questions and ruling
Following Dempsey Thornton’s testimony, the trial judge asked if any of the
parties objected to him asking Varney a few questions. When none did, the judge
asked about Varney’s availability on Thursday and Sunday evenings. The judge
13
also asked about who takes care of M.H.V. and M.V. when they are in his custody
and he is at work. Varney answered that he is available on both Thursday and
Sunday evenings and he hires a lady to watch the children when he is at work. The
trial judge then inquired if Varney wanted an expanded possession order, which
would entail Thursday and Sunday overnight stays. Varney agreed that he did.
The trial judge then announced: “All right. Well, I don’t think I need to visit with
the child. I’m ready to make a ruling if you’d like.”
In the Final Decree of Divorce and Order on Petition to Modify Parent-Child
Relationship (“Final Divorce Decree”), the trial court named Cash and Varney
joint managing conservators of M.V. and gave Cash the exclusive right to
determine her primary residence. The trial court removed the Thorntons as joint
managing conservators and instead, designated them possessory conservators. The
trial court also permanently enjoined Cash and Varney from:
Permitting the children to spend the night in the same residence as any
person of the opposite sex, who is unrelated to the children by blood
or marriage, with whom the party is having an intimate relationship,
and, as applied to Amanda Cash, specifically but not limited to Bruce
Roberts and [J.R.]. As applied to this paragraph, “the night” is
defined as between the hours of 9:00 p.m. and 8:00 a.m.
Finally, the trial court ruled that the Thorntons should pay a portion of Cash’s
reasonable and necessary attorney’s fees incurred in defending the Thorntons’
intervention, as well as the reasonable and necessary attorney’s fees incurred by
the amicus attorney.
The Thorntons timely requested that the trial court make findings of fact and
conclusions of law, which it did on October 31, 2011. In addition, the Thorntons
filed a motion for new trial, which the trial court overruled by written order. The
Thorntons filed their notice of appeal on December 15, 2011. On January 25,
2012, the trial court signed “Nunc Pro Tunc Temporary Orders Pending Appeal
14
(Thornton)” (“Temporary Orders”), which awarded the Thorntons additional
periods of possession of M.V. pending the outcome of the appeal.
MOTION TO DISMISS
Before we address the issues raised by the Thorntons in their appeal, we
must consider the motion to dismiss filed by Cash. Cash contends we should
dismiss the Thorntons’ appeal because they filed a “Motion for Enforcement of
Post Judgment Temporary Orders and Order to Appear” on July 2, 2012. The
motion asked the trial court to hold Cash in contempt for (1) failing to surrender
M.V. to the Thorntons for a visitation required under the Temporary Orders; (2)
failing to surrender M.V. to the Thorntons for two visitations required by the Final
Divorce Decree; and (3) violating the permanent injunction found in the Final
Divorce Decree prohibiting Roberts and J.R. from being in her residence between
the hours of 9:00 p.m. and 8:00 a.m. According to Cash, by seeking to enforce
provisions found in the Temporary Orders and the Final Divorce Decree, the
Thorntons have accepted the benefits of the order they are seeking to reverse on
appeal and, as a result, their appeal must be dismissed.
In support of her motion, Cash cites numerous cases, including Carle v.
Carle, 234 S.W.2d 1002, 1004 (Tex. 1950). In Carle, the supreme court held that
“a litigant cannot treat a judgment as both right and wrong, and if he has
voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an
appeal therefrom.” Id. There are two exceptions to the doctrine: (1) when
acceptance results from economic necessity; and (2) when a reversal of the
judgment will not affect the appellant’s rights to the benefit they have received.
Waite v. Waite, 150 S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2004, pet.
denied). Cash contends neither exception applies because the present case does
15
not deal with any “pecuniary interest,” and the Thorntons’ rights and terms of
possession and access could be affected if the case is reversed on appeal.
We conclude Cash has not met her burden to establish that the acceptance of
the benefits doctrine applies to the facts presented here. Gathe v. Gathe, 376
S.W.3d 308, 313 (Tex. App.—Houston [14th Dist.] 2012, no pet.). First, the cases
Cash cites are distinguishable because none involves the application of the
acceptance of benefits doctrine to dismiss an appeal involving child custody issues.
See Texas State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002) (holding
exception to acceptance of benefits doctrine applied in trust dispute); Carle, 234
S.W.2d at 1004 (divorce case involving dispute over property division); Waite, 150
S.W.3d at 804 (holding doctrine applied in divorce case because appellant accepted
a substantial portion of the judgment being appealed); Kline v. O’Quinn, 874
S.W.2d 776, 780 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (dispute
between three attorneys over a contingency fee). Instead, as these cases
demonstrate, the doctrine is most commonly applied in divorce cases in which one
spouse accepts certain assets awarded by the judgment and then seeks to appeal the
remainder of the judgment. Gathe, 376 S.W.3d at 313.
While the present case does involve a divorce and property settlement, this
appeal does not relate to those provisions of the Final Divorce Decree. Instead, it
arises solely out of the trial court’s decisions regarding M.V. In child custody
cases, the primary consideration of any court is the best interest of the child. See
Tex. Fam. Code Ann. § 153.002 (West 2008). It is this overarching consideration
that distinguishes the present case from those cited by Cash in her motion to
dismiss.
The Family Code specifically authorizes an appeal from a final order such as
the Final Divorce Decree. See id. § 109.002(b) (West 2008). It also provides that
16
an appeal does not automatically suspend the appealed order. See id. § 109.002(c)
(West 2008). Because the appeal did not automatically suspend the decree, and
neither the trial court nor this Court signed an order suspending it, the decree
remained in full effect and was enforceable by contempt proceedings. Ex parte
Rutherford, 556 S.W.2d 853, 854 (Tex. Civ. App.—San Antonio 1977, orig.
proceeding). Moreover, the Legislature has authorized a trial court to enter
temporary orders during the pendency of an appeal. See id. at § 109.001. The
Family Code states that a trial court retains jurisdiction to enforce those temporary
orders. See id. § 109.001(b). Because the Final Divorce Decree and the
Temporary Orders remain in effect during the pendency of this appeal, Cash has a
statutory duty to comply with those orders during that time period. Velasco v.
Ellis, No. 01-10-00073-CV, 2011 WL 2118865 (Tex. App.—Houston [1st Dist.]
May 26, 2011, no pet.).
Here, the trial court determined it was in M.V.’s best interest to sign the
Final Divorce Decree, which changed the Thorntons’ status from joint managing
conservators to possessory conservators and awarded them designated periods of
possession. In addition, the trial court, in its Final Divorce Decree, decided it was
in M.V.’s best interest to prohibit Roberts and J.R. from being in Cash’s residence
between the hours of 9:00 p.m. and 8:00 a.m. The trial court also determined it
was in M.V.’s best interest to sign the Temporary Orders, which awarded the
Thorntons increased periods of possession during the pendency of the appeal.
We conclude the Thorntons’ efforts to enforce the trial court’s determination
of what was in the best interest of M.V., as embodied in the Final Divorce Decree
and Temporary Orders, and to ensure that Cash fulfilled her continuing statutory
duties under those orders, does not invoke the acceptance of the benefits doctrine.
See McAlister v. McAlister, 75 S.W.3d 481, 483–84 (Tex. App.—San Antonio
17
2002, pet. denied) (holding when temporary orders pursuant to section 6.709(a) of
the Family Code are in place, acceptance of benefits doctrine does not apply
because it would abrogate “the legislature’s intent to maintain the status quo and
provide for spousal and child support, as necessary, during the appeal.”). Applying
the doctrine here would encourage parties to disregard a trial court’s orders in suits
affecting the parent-child relationship that have been appealed and thereby thwart
the Legislature’s directive that the best interest of the child is the primary
consideration in those proceedings. Cash’s motion to dismiss is denied.
THE THORNTONS’ ISSUES ON APPEAL
The Thorntons raise five issues on appeal, which we consolidate into three.
The Thorntons’ first issue contends the trial court improperly applied a parental
presumption in a modification proceeding and that, as a result of the improper
application of that presumption, it erred when it decided to remove them as joint
managing conservators. In their second issue, the Thorntons assert the trial court
erred when it excluded M.V.’s objectives from the trial and prevented the amicus
attorney from full participation in the trial. In their third and final issue, the
Thorntons contend the trial court erred in assessing the amicus attorney’s fees and
a portion of Cash’s attorney’s fees against them.
I. The trial court did not apply a parental presumption, and its decision to
remove the Thorntons as managing conservators is supported by
sufficient evidence.
In their first issue, the Thorntons assert the trial court improperly applied a
parental presumption in the modification proceeding. In addition, within their first
issue, the Thorntons contend “there was no evidence of a change of circumstances
that would warrant taking away [the Thorntons’] Joint Managing Conservatorship
and their rights, powers and duties.” The Thorntons go on to argue that as a result
18
of this erroneous application of a parental presumption, the trial court erroneously
removed them as joint managing conservators.
A. Standard of review and applicable law
Most orders arising from a suit affecting the parent-child relationship will
not be disturbed on appeal unless the complaining party can demonstrate a clear
abuse of discretion. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied). Generally, a trial court abuses its discretion by
acting arbitrarily, unreasonably, or without reference to any guiding rules or
principles. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.]
2010, pet. denied). The failure to analyze or apply the law correctly also
constitutes an abuse of discretion. In re C.A.M.M., 243 S.W.3d at 215. The fact a
trial court may decide a matter within its discretionary authority in a different
manner than an appellate court in a similar circumstance does not demonstrate an
abuse of discretion. Id. A trial court does not abuse its discretion if there is some
evidence of a substantive and probative character to support its decision. In re
R.T.K., 324 S.W.3d at 900. In addition, a trial court is in the best position to
observe the witnesses and their demeanor, and therefore is given great latitude in
determining a child’s best interests. In re Guardianship of C.E.M.-K, 341 S.W.3d
68, 80 (Tex. App.—San Antonio 2011, pet. denied).
When the proper standard of review is abuse of discretion, challenges to the
legal and factual sufficiency of the evidence are not independent grounds for
reversal, but instead are factors to be considered in determining whether the trial
court abused its discretion. In re C.A.M.M., 243 S.W.3d at 220–21. To determine
if the evidence is legally sufficient, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. Id. In addition, we
19
indulge every reasonable inference that would support the factfinder’s finding. In
re Guardianship of C.E.M.-K, 341 S.W.3d at 80. In a legal sufficiency review, the
factfinder is the sole judge of the witnesses’ credibility and the weight to be given
their testimony. 2900 Smith, Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d
741, 745 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The evidence is legally
sufficient if it would enable reasonable and fair-minded people to reach the
decision under review. In re Guardianship of C.E.M.-K, 341 S.W.3d at 80.
In reviewing factual sufficiency, we must examine the entire record,
considering evidence both in favor of and contrary to the challenged findings. Id.
at 81. We may set aside the verdict only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Id. We cannot substitute
our judgment for that of the factfinder. Id. If there is sufficient competent
evidence to support the factfinder’s decision, it must be upheld. Id. We may not
weigh the witnesses’ credibility or interfere with the factfinder’s resolution of
conflicts in the evidence. In re C.A.M.M., 243 S.W.3d at 221.
After assessing the sufficiency of the evidence, we determine whether, based
on the evidence, the trial court made a reasonable decision. We will affirm the
decision unless it is arbitrary or unreasonable. Id.
The presumption that the best interest of the child is served by awarding
custody to the parent is deeply embedded in Texas law. In re V.L.K., 24 S.W.3d
338, 341 (Tex. 2000). The parental presumption, codified in Chapter 153 of the
Family Code, provides that the trial court must appoint a parent as sole managing
conservator or both parents as joint managing conservators unless that appointment
would not be in the best interest of the child because it would significantly impair
the child’s physical health or emotional development. See Tex. Fam. Code Ann.
§ 153.131(a) (West 2008).
20
The supreme court has held that the parental presumption does not apply in
modification suits brought under Chapter 156 of the Family Code. In re V.L.K., 24
S.W.3d at 342–43. Instead, modification proceedings are governed by a statutory
scheme distinct from the statutory scheme controlling original custody
determinations. See Tex. Fam. Code Ann. § 156.101(a) (West Supp. 2012).
Although the two types of custody proceedings are governed by distinct statutory
schemes, both share one overriding concern: the best interest of the child. In re
R.T.K., 324 S.W.3d at 900. A modification suit introduces additional policy
concerns not present in an original custody action, such as stability for the child
and the need to prevent constant litigation in child custody cases. Id. Thus, a
person seeking to modify an existing custody order must prove that (1) a
modification would be in the child’s best interest, and (2) the circumstances of the
child, a conservator, or other party affected by the custody order, have materially
and substantially changed since the previous custody order. Id.
B. Analysis
It is undisputed that this is a modification proceeding brought under Chapter
156 of the Family Code. While all parties agree that the parental presumption is
inapplicable, the Thorntons contend the only explanation for the trial court’s
decision in this case is it must have improperly applied that presumption. The
Thorntons also assert there was no evidence that the circumstances of the child, a
conservator, or other party affected by the custody order have materially and
substantially changed since the entry of the original custody order. Finally, the
Thorntons assert the evidence is overwhelming that “Cash is and was not an
appropriate Primary Conservator,” and contend there was no evidence that
appointing the Thorntons primary joint managing conservators would not be in
M.V.’s best interest.
21
We turn first to the Thorntons’ contention that the trial court improperly
applied a parental presumption in this modification proceeding. In a bench trial,
we presume that a judge conscientiously performs his duties of responsibly
assessing the credibility of the witnesses, logically evaluating the evidence,
rationally resolving any factual disputes, and correctly applying the law to the
facts. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied). We need not rely on this
presumption here, however, because the parties’ pleadings, the trial court’s Final
Divorce Decree, and the court’s Findings of Fact and Conclusions of Law all show
that this case was litigated, tried, and resolved as a suit to modify an existing
custody order pursuant to Chapter 156 of the Family Code. Because we conclude
the Thorntons’ contention that the trial court improperly applied a parental
presumption in a modification proceeding is incorrect, we construe their
consolidated first issue as a challenge to the sufficiency of the evidence to meet the
statutory requirements for modification. See In re C.A.M.M., 243 S.W.3d at 220.
The Thorntons next contend there is no evidence that the circumstances of
the child, a conservator, or other party affected by the original custody order have
materially and substantially changed since the entry of the original custody order.
We conclude the Thorntons are barred from making this argument on appeal
because they judicially admitted a substantial change. Specifically, the Thorntons
made that precise allegation in both their petition in intervention and their counter
petition for modification. See Horizon/CMS Healthcare Corp., 34 S.W.3d 887,
905 (Tex. 2000) (stating that a judicial admission occurs when an assertion of fact
is conclusively established in a live pleading). Because the Thorntons judicially
admitted that a material and substantial change had occurred, they are barred from
disputing it on appeal. Id.
22
Even if the Thorntons had not judicially admitted the existence of a material
and substantial change of circumstances, we conclude there is abundant evidence
of such a change since the entry of the original custody order. Specifically, Cash
and Varney, M.V.’s mother and father, were getting divorced. Just as the marriage
of a party may constitute a material and substantial change in circumstances
sufficient to warrant the modification of a custody order, we conclude the divorce
of two of the parties to the original custody order meets that requirement as well.
See Arredondo v. Betancourt, 383 S.W.3d 730, 734–35 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (detailing non-exclusive list of material changes found
to be sufficient to support modification of a custody order).
The Thorntons argue that Cash’s divorce filing does not constitute a
substantial change in circumstances sufficient to warrant a modification of the
January 2010 custody order. Instead, they argue, the divorce was part of an effort
by Cash to manipulate events to create the appearance of a change in
circumstances. In making this argument, the Thorntons invite this court to reweigh
the evidence heard by the trial court and render a different decision.
We reject this invitation. This was a bench trial, and in that circumstance,
the trial judge is in the best position to observe and assess the witnesses’ demeanor
and credibility, to sense the forces, powers, and influences that may not be
apparent from reading the record on appeal. In re A.L.E., 279 S.W.3d 424, 427
(Tex. App.—Houston [14th Dist.] 2009, no pet.). As a result, an appellate court
defers to a trial court’s resolution of underlying facts and to credibility
determinations that may have affected its determination, and will not substitute its
judgment for that of the trial court. Id. The trial court heard the evidence and the
arguments of counsel and found that a material and substantial change had
occurred sufficient to warrant modifying the January 2010 custody order. The
23
Thorntons have not pointed to any evidence in the record that, for example, Cash
was planning to file for divorce at the time of the January 2010 custody order. Nor
have they pointed to any other evidence showing that the trial court abused its
discretion when it found a material and substantial change.6
Finally, the Thorntons address the best interest of M.V. We conclude that
the trial court had sufficient evidence to support its decision to change the
Thorntons’ status from joint managing conservators to possessory conservators.
Here, the trial court specifically found that the Thorntons only requested
possession of and access to one of the two siblings, M.V. The court also found that
“it is not in the best interest of the child [M.V.], or the child [M.H.V.], that the
children continue to be separated during the periods when [M.V.] would have a
standard possession order with [the Thorntons], which do not include the child’s
sibling, [M.H.V.].” These findings were supported by the Thorntons own
testimony that they were not interested in M.H.V., as well as both Cash and
Varney’s testimony that both M.V. and M.H.V. were being negatively affected by
M.V.’s time with the Thorntons. Because keeping siblings together is a factor a
trial court may consider when deciding the best interest of the child, we conclude
this finding by the trial court is sufficient to support its decision that it was in
M.V.’s best interest to change the Thorntons’ status from joint managing
conservators to possessory conservators. See Tex. Fam. Code Ann. § 153.251(c)
(West 2008); MacDonald v. MacDonald, 821 S.W.2d 458, 463 (Tex. App.—
6
The Thorntons also argue we should reverse the trial court’s judgment because the trial
court applied an improper legal standard—that the January 2010 custody order had become
unworkable—in finding that modification was proper. Assuming without deciding that
unworkability is not an appropriate legal standard, we conclude any error was harmless because
unworkability was an additional ground for modification; the trial court also found that a
material and substantial change in circumstances warranting modification had occurred.
24
Houston [14th Dist.] 1992, no writ) (holding split custody is factor in determining
best interest of child).
To the extent the Thorntons point to evidence they believe is contrary to the
trial court’s decision in this matter, we again point out that in a bench trial, the
court is the trier of fact and we may not reevaluate the witnesses’ credibility or
reweigh their testimony. A trial court does not abuse its discretion when, as here,
there is some evidence of a substantive and probative character to support its
decision. In re R.T.K., 324 S.W.3d at 900.
The Thorntons also focus on Cash’s prior drug problems and her admission
during the bench trial that she takes three prescription medications. The Thorntons
ask this Court to take judicial notice of the purposes for prescribing two of those
prescription drugs, Soma (a muscle relaxer used for pain management) and
Suboxone (used for opioid dependence), and they attached various documents to
their appellate brief in an effort to establish their purpose. They also invite this
Court to consider the results of a drug test administered to Cash on January 13,
2012, more than four months after the trial court signed the Final Divorce Decree.
With respect to the drug test results, it is well established that, when
reviewing the merits of a trial court’s decision, we are limited to considering the
material that was before the trial court at the time it acted. Methodist Hosps. of
Dallas v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.)
(citing Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961)). Because the
drug test results were not before the trial court when it signed the appealed Final
Divorce Decree, we cannot consider them on appeal. Id.
Assuming without deciding we may take judicial notice of the purposes of
the two prescription drugs, doing so would not change the outcome. The trial court
was aware of Cash’s prior drug issues, her current efforts to ensure those problems
25
did not recur, as well as her admitted use of the referenced prescription drugs.
With that knowledge, the trial court decided to retain Cash as a joint managing
conservator of M.V. and to change the Thorntons’ status to that of possessory
conservators.7 Even when considering the purposes of the two drugs, we cannot
conclude that the trial court abused its discretion when it did so. We overrule the
Thorntons’ first issue on appeal.
II. The trial court did not abuse its discretion in deciding not to interview
M.V., and no party objected to the court’s limits on the amicus
attorney’s role.
In their second issue, the Thorntons contend the trial court erred in two ways
concerning the role of the amicus attorney in this case. First, they assert the trial
court erred when it declined to interview M.V. regarding her objectives. Second,
they argue the trial court erred when it allegedly excluded the amicus attorney from
full participation in the trial by stating: “I don’t see any reason for the AMICUS to
make objections. Everybody has good lawyers.” We address each contention in
turn.
Section 153.009(a) of the Family Code provides that in a bench trial “the
court . . . may interview in chambers a child under 12 years of age to determine the
child’s wishes as to conservatorship or as to the person who shall have the
exclusive right to determine the child’s primary residence.” Tex. Fam. Code Ann.
§ 153.009(a) (West 2008). This statute gives the court discretion to interview a
child under twelve, but it does not require the court to do so. M.V. was ten at the
time of the bench trial. Therefore, the trial court had the discretion to decide
whether to interview her or not. The Thorntons have not pointed to any evidence
7
The Thorntons also argue Cash’s admission that she was taking Suboxone violates the
conditions imposed by the Texas Board of Nursing’s Reinstatement Agreed Order. Although
that order prohibited Cash from using any controlled substances, we note it allowed Cash to use
a controlled substance “prescribed by a licensed practitioner for a legitimate purpose.”
26
in the record that establishes the trial court abused its discretion when it opted to
not interview M.V. As a result, we reject the Thorntons first contention in their
second issue . See Wiegman v. Weigman, No. 03-05-00025-CV, 2006 WL 305272,
at *2 (Tex. App.—Austin 2006, no pet.) (mem. op.) (holding trial court did not
abuse its discretion when it chose not to interview a child under twelve).
Turning to their second contention, the Thorntons complain that the trial
court prevented the amicus attorney from fully participating in the bench trial when
he stated, following several objections lodged by different attorneys to the same
testimony, that he did not see any reason for the amicus attorney to make
objections. No one, including the Thorntons, objected to the trial court’s ruling.
Because the Thorntons did not object, they failed to preserve this complaint for
appellate review. See Tucker v. Thomas, No. 14-09-01081-CV, 2011 WL
6644710, at *15 (Tex. App.—Houston [14th Dist.] 2011, pet. filed) (en banc)
(holding appellant failed to preserve litany of alleged errors because he did not
raise them in the trial court). We therefore overrule the Thornton’s second issue.
III. The trial court did not abuse its discretion by ordering the Thorntons to
pay the amicus attorney’s fees and a portion of Cash’s attorney’s fees.
In their third issue on appeal, the Thorntons complain about the trial court
assessing both the amicus attorney’s fees and a portion of Cash’s attorney’s fees
against them. We turn first to the amicus attorney’s fees.
The Thorntons assert the trial court abused its discretion in two ways when it
ordered them to pay the amicus attorney’s fees. First, because the Thorntons are
not parents, they argue that the trial court abused its discretion when it classified
the amicus attorney’s fees as necessaries for the benefit of the child. Second, the
Thorntons contend the trial court abused its discretion because the evidence is
insufficient to support its decision to assess all of the amicus attorney’s fees against
27
them. In response, Cash contends the Thorntons failed to preserve these arguments
for appellate review because they did not raise them in the trial court.
With respect to the Thorntons’ first argument, we agree. The record on
appeal demonstrates that the Thorntons’ only complaint about the trial court’s
award of the amicus attorney’s fees came in their motion for new trial, where they
asserted the evidence was legally and factually insufficient to support a finding that
the Thorntons should pay all of the amicus attorney’s fees. Because they made no
complaint in the trial court that it was an abuse of discretion to assess the amicus
attorney’s fees against them as necessaries for the benefit of the child, we conclude
they failed to preserve this argument for appellate review. Tex. R. App. P. 33.1(a);
see Arredondo, 383 S.W.3d at 746–47 (holding appellant failed to preserve
complaint that she was deprived of a jury trial on attorney’s fees because she failed
to raise it in the trial court); Tucker, 2011 WL 6644710, at *15 (holding appellant
failed to preserve complaints regarding trial court’s order to pay half of amicus
attorney’s fees because he did not raise that issue in the trial court); In re A.B.P.,
291 S.W.3d 91, 99–100 (Tex. App.—Dallas 2009, no pet.) (holding appellant
failed to preserve complaint regarding classification of attorney’s fees as “in the
nature of child support” by not raising it in the trial court).
We construe the Thorntons’ second argument as a challenge to the
sufficiency of the evidence supporting the trial court’s decision to assess all of the
amicus attorney’s fees against them. In support of their sufficiency challenge, the
Thorntons point to the procedural history of the litigation. Specifically, without
citing to the appellate record, the Thorntons contend
Cash sued Appellants seeking primary conservatorship. Cash and
Varney subsequently sued Appellants seeking removal [of] Appellants
as conservators. Varney sued Cash for custody and the
uncontradicted evidence reflects he continued to pursue custody until
28
a few weeks before trial and to some degree, into trial. Appellants[’]
Intervention (nominally a counterclaim to Cash’s divorce action) was
a responsive pleading to being sued by Cash.
Then, without citing any authority, the Thorntons assert that “it was error for the
trial court to assess the entirety of the Amicus Fees against [them].”
The record does not support the Thorntons’ version of this case’s procedural
history. While it is true that Cash initiated the latest round of litigation, she did so
in an Original Petition for Divorce. In that petition, Cash asked the trial court to
incorporate the January 2010 Agreed Order in Suit Affecting Parent-Child
Relationship. In response to Cash’s divorce petition, in addition to an original
answer, the Thorntons filed a Petition in Intervention for Conservatorship in which
they alleged there had been a material and substantial change of circumstances
since the rendition of the January 2010 Agreed Order and as a result, they sought
additional periods of possession. It was not until five months after the Thorntons
intervened that Cash and Varney filed their Joint Motion to Modify Parent-Child
Relationship, which sought to remove the Thorntons as conservators of M.V.
Thus, it was the Thorntons who first sought to change the January 2010 order
regarding custody and possession. We conclude that this procedural history is
sufficient to support the trial court’s exercise of its statutory authority to order the
Thorntons to pay all of the amicus attorney fees. See Tex. Fam. Code Ann.
§ 107.023 (West 2008) (authorizing trial court to order one or more of the parties
to pay an amicus attorney’s fees and to classify them as necessaries for the child).
We turn now to the Thorntons’ contention that the trial court abused its
discretion when it ordered them to pay a portion of Cash’s attorney’s fees. The
Thorntons once again argue that, under their version of the procedural history of
the litigation, it was an abuse of the trial court’s discretion to order them to pay a
portion of Cash’s attorney’s fees. For the same reasons stated above with respect
29
to the amicus attorney’s fees, we disagree. Instead, the procedural history found in
the appellate record is sufficient to support the trial court’s decision to order the
Thorntons to pay a portion of Cash’s attorney’s fees. See In re R.C.S., 167 S.W.3d
145, 152 (Tex. App.—Dallas 2005, pet. denied) (rejecting argument that trial court
abused its discretion by ordering appellant to pay appellee’s attorney’s fees even
though appellant believed the litigation was caused by appellee’s own actions).8
Having addressed and rejected each argument raised by the Thorntons in
their third issue, we overrule that issue.
CONCLUSION
The trial court’s Final Decree of Divorce and Order on Petition to Modify
Parent-Child Relationship is affirmed.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
8
The Thorntons also argue that ordering them to pay Cash’s attorney’s fees was an abuse
of discretion because the trial court erred in changing their status from managing to possessory
conservators. Because we have affirmed the trial court’s decision to remove the Thorntons as
managing conservators, we reject this argument. See In re R.C.S., 167 S.W.3d 145, 152 (Tex.
App.—Dallas 2005, pet. denied) (“Appellant’s contention that appellee should not have
succeeded in her attempt to modify the conservatorship arrangement does not persuade us that
the trial court abused its discretion in awarding her attorney’s fees.”).
30