Katie Schmidt v. Daron Nelson ( 2019 )

Opinion issued August 29, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00816-CV
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KATIE SCHMIDT OBERNHOFF, Appellant
V.
DARON LYNN NELSON, Appellee
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Case No. CCL5068
MEMORANDUM OPINION
Appellant, Katie Schmidt Obernhoff (“Katie”), challenges the trial court’s
August 22, 2017 Order in Suit to Modify Parent-Child Relationship, entered after a
bench trial, granting the counter-petition, filed by appellee, Daron Lynn Nelson
(“Daron”), to modify an order in a suit affecting the parent-child relationship. In
five issues, Katie contends that the trial court erred in modifying the existing order
in a suit affecting the parent-child relationship, relying on the guardian ad litem’s
testimony and report, failing to disclose its identity when conferring with the minor
child, issuing temporary orders, denying an evidentiary hearing related to Katie’s
motion for new trial, and denying her emergency motion for an evidentiary hearing
on Katie’s motion for new trial to present newly discovered evidence.
We affirm.
Background
In 2004, Katie gave birth to her and Daron’s minor child, C.N. On October
15, 2012, the trial court signed an Order in Suit to Modify Parent-Child Relationship
(the “2012 order”). The 2012 order appointed Katie and Daron as joint managing
conservators and named Katie as the joint managing conservator with the exclusive
right to designate C.N.’s primary residence. The order also provided that Katie had
the sole exclusive control over a custodial account held for C.N. by Katie and Daron.
The funds placed into that account were to be used solely for C.N.’s education, and
Katie was required to obtain written permission from Daron to withdraw the funds
for any other purpose.
In her Petition to Modify the Parent-Child Relationship, filed on December 2,
2015, Katie alleged a material and substantial change of circumstances since the
2012 order and that modification of that order would be in the best interest of C.N.
2
In regard to modification, Katie requested that she and Daron be appointed as joint
managing conservators, that she be named the conservator with the exclusive right
to designate C.N.’s primary residence, and that Daron only be allowed supervised
visitation with C.N. because Daron had allegedly been physically abusive toward
C.N. Katie requested temporary orders and a temporary restraining order and sought
an injunction. In an affidavit attached to her petition, Katie stated that possession of
C.N. by Daron would endanger C.N.’s physical health and significantly impair his
emotional development. According to Katie, Daron had made verbal threats of
abuse directly to C.N., C.N. told Katie that Daron had struck him, which Daron had
classified as an accident, and Daron had directed derogatory statements toward C.N.
As a result, Katie alleged that C.N. did not want to be in Daron’s possession.
On December 16, 2015, Daron filed a Counter-Petition to Modify the
Parent-Child Relationship and a Counterclaim for Enforcement of Possession or
Access. Daron alleged a material and substantial change of circumstances since the
2012 order and that modification would be in the best interest of C.N. Daron
requested that he and Katie be appointed as joint managing conservators, that he be
named the conservator with the exclusive right to designate C.N.’s primary
residence, and that he no longer be required to pay child support to Katie. Daron
requested temporary orders and sought an injunction.
3
On April 19, 2016, after a hearing, the trial court entered temporary orders,
appointing Katie and Daron as temporary joint managing conservators, naming
Daron as the joint managing conservator with the exclusive right to designate C.N.’s
primary residence, and ordering Katie to pay child support to Daron.
Mother
At trial, Katie testified that she is currently married to Erich Oberhoff
(“Erich”) and has two children, C.N. and Z.O. At the time of trial, C.N. was twelve
years old and Z.O. was two years old. According to Katie, Z.O. was born in July
2015 and had colic, which caused her to cry and fuss constantly. Katie described
Z.O. as inconsolable. Z.O. also had jaundice and a broken collarbone at birth, and
right after Z.O. was born, Katie “went two weeks straight with no sleep.” In fact,
there were many instances in 2015 when Katie was sleep deprived. Although Z.O.
outgrew her colic at about six months old, she was still a “high maintenance” child,
which caused stress. Katie explained that it was difficult for her to manage C.N. and
Z.O. at the same time, especially because Erich was away from the home for two
weeks at a time for work. Katie believed that she was suffering from postpartum
depression in 2015. At the time, she felt anxious, stressed, overwhelmed, and
hopeless.
In regard to her mental health history, Katie noted that at times in the past she
was treated for depression, although at the time of trial, she stated that she was not
4
suffering from depression.1 Katie testified that in 2012 she began seeing a counselor,
T’Shana Everitt. In October 2012, Katie went to the emergency room because she
was depressed and she had attempted to cut herself on her leg with a butter knife.
She spent four or five hours in the emergency room and she did not tell her family,
although she asked Daron to watch C.N. Katie explained that during that time, and
for approximately two years, she did not get along with her parents because she was
“going through a lot.” She “had Daron back in [her] life, [she] had . . . migraines,
health problems, [she] met Erich, [she] lost jobs[,] and . . . then [she] started having
problems with Erich.” In 2016, Katie saw another counselor for approximately a
month and she saw a psychologist who “gave [her] some sleeping medicine.”
In regard to Erich, Katie explained that when Z.O. was born in July 2015, she
and Erich were in a “rocky” and unstable relationship, and they were not married.
In spring 2016, after the trial court issued its temporary orders in the instant case,
Katie ended her relationship with Erich. Katie explained that the difficulty of raising
and taking care of Z.O. had put a stress the relationship.
Katie further testified that although Erich has never hit her, during the course
of their relationship, she called law enforcement officers “on Erich” six occasions.
The first time that she called for emergency assistance, Erich went to jail. In that
1
In contrast, Katie also testified that she was depressed at the time of trial because
C.N. was not living primarily with her.
5
instance, Erich came home angry, started yelling at Katie, and hid her keys and her
cellular telephone. When Katie went out to her car to call for emergency assistance,
Erich tried to stop her by pulling her out of the car. Katie fell in “sticker burrs,” and
then ran inside their home, found her cellular telephone, and called for emergency
assistance to “come settle [her and Erich] down.” C.N. was not present at the time.
The second time that Katie called for emergency assistance it was related to a verbal
argument between her and Erich, and C.N. was not present. However, the third time
that Katie called for emergency assistance, related to a verbal argument between her
and Erich, C.N. was present. The last time that she had called for emergency
assistance regarding Erich was in November 2015. Katie explained that she and
Erich had gotten into an argument and she was scared. In June 2016, Katie requested
a temporary restraining order against Erich, and Katie testified that the statements
she made in her affidavit attached to her Application for a Temporary Restraining
Order and Temporary Injunction were truthful.
Katie additionally testified that her relationship with Erich has changed since
2015. In July 2016, she and Erich reconciled, and they married in July 2017, shortly
before trial. They now have a mutually supportive relationship and do not argue.
Katie further explained that, after she and Erich reconciled, they began attending
couples counseling sessions once a week with their counselor, Everitt, to “repair[]
[the] past and to move on for a healthier future.” Eventually, Katie and Erich
6
transitioned to attending counseling sessions once a month. Through counseling,
Katie and Erich have started to relate to each other differently and have learned how
to handle their disagreements. Although they still argue, it had “been awhile” since
they has an argument where they yelled at each other. According to Katie, she and
Erich plan to have several more children.
In regard to Erich’s relationship with C.N., Katie testified that Erich has strong
affection for C.N. But, when asked whether C.N. had affection for Erich, Katie
stated: “It’s been rocky because he’s been protective of me, but he’s a lot better.”
Katie explained that C.N. was protective of her because he had seen her and Erich
argue in the past. However, in Katie’s opinion, as her relationship has improved
with Erich, Erich’s relationship has improved with C.N. because C.N. no longer feels
the need to protect her from Erich. Katie wants C.N. to have a good relationship
with Erich.
Katie further testified that she and C.N. have a close relationship. Katie
disciplines him and helps him with his homework. After C.N. began living primarily
with Daron in spring 2016, Katie would have C.N. do his required reading when he
was in her possession, and in fall 2016, Katie took him to a math tutor. Katie does
not curse at C.N. or in front of him. She also has lunch with him at school on certain
days, and C.N. is glad to see Katie during this time. Katie believes that C.N.’s
academics and school behavior are important, but she thinks that C.N.’s emotional
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and physical well-being is the most important thing. Further, C.N. has a good
relationship with Katie’s parents and sister, and Katie’s mother has helped C.N. with
his homework in the past.
In regard to C.N.’s schooling, in fall 2015, Katie moved C.N. to a public
middle school because they had “resource” classes and C.N. was not doing well and
getting into trouble at his previous school. Katie testified that C.N. would throw
pencils at other students, talk during class, and say curse words, and he told another
student that “he was going to get his dad to go over to his house and beat him up.”
C.N. also had a problem listening to his teachers. As a result of his behavior, C.N.
received detention and in-school suspension and he was “written up.”
Upon changing schools, C.N. was placed in a resource math class in fall 2015,
and in spring 2016, he was moved into a resource reading class as well. After being
in resource classes, C.N.’s grades improved. In Katie’s opinion, any misbehavior
that C.N. engages in at school is not related to Katie or the time that C.N. spends
with her. And according to Katie, in both fall 2016 and spring 2017, C.N. was
involved in fights at school, and those fights did not occur on the days that she had
lunch at school with him. In spring 2017, Katie called C.N.’s teachers to reach out
to them. Katie further stated that she had heard that while C.N. had been living
primarily with Daron, C.N. had gone to school without taking his medication in the
morning, and he would not turn in his homework.
8
In the past, Katie has taken C.N. to visit with her counselor, Everitt, who C.N.
trusts and enjoys seeing. While living with Katie, C.N. saw Everitt “off and on.”
However, since C.N. began living primarily with Daron, he has only seen Everitt
nine times.
Katie further explained that C.N. currently takes medication for
Attention-Deficit/Hyperactivity Disorder (“ADHD”), which is prescribed by a
psychiatrist. C.N. was diagnosed with ADHD at an early age and has taken
medication for several years. Katie, her mother, and Daron’s wife, Danielle, took
C.N. to see his current psychiatrist in November 2015. Although it took several
adjustments to get the dosage correct for C.N.’s medication, C.N. has been on the
same dosage since February 2016. Since C.N. began living primarily with Daron in
spring 2016, Katie has been to one appointment with C.N.’s psychiatrist, and
according to Katie, on one occasion she did not learn of C.N.’s scheduled
psychiatrist appointment until the night before. Katie testified that C.N. was easier
to discipline in 2016 due to his ADHD medication and not because he had begun
living primarily with Daron. Additionally, while Katie had summer possession of
C.N. in 2017, she gave him half of his ADHD medication dosage “to try it out” and
to see how it helped him because, in the past, a doctor had told her “that’s what [she]
can do.” However, after trying the lower dosage for a day, Katie resumed giving
C.N. his full dosage of ADHD medication.
9
Katie also noted that in August 2015 she took C.N. to an inpatient psychiatric
facility, where he stayed for six nights. Daron and Danielle were “[n]ot fully [aware]
at first” with “what was going on” when C.N. was taken to the inpatient facility, but
ultimately Katie informed them. The inpatient facility recommended that C.N. be
taken off his ADHD medication until he saw a psychiatrist, which C.N. did not do
until November 2015. Thus, C.N. was not taking any ADHD medication for
approximately three months. Without his ADHD medication in fall 2015, C.N.
“act[ed] up” more and was difficult to raise.
While C.N. was previously in her care, Katie admitted that she had spent
“most of 2015 working on [her] relationship with Erich” and “put [C.N.] on the back
burner.” And she sent C.N. to live with her parents for a considerable amount of
time in 2015 because C.N. was comfortable with her parents. However, on one
occasion while C.N. was in Katie’s home, C.N. told Katie that he was going to the
house next door, but instead he “went to the street over and tried to go play on
someone’s basketball goal.” C.N. then walked into an unknown person’s house “like
he knew [him],” and a firefighter brought C.N. back to Katie. Katie admitted that it
was “very hard” for her to discipline C.N. in 2015.
In regard to C.N.’s extracurricular activities, Katie testified that although C.N.
played football in fall 2016, she only attended one game, and she did not take C.N.
to practices. Further, Erich was involved in football with C.N. for about a month;
10
because Daron then called Katie and told her that “Erich got kicked off the team,”
which the coach denied. Katie opined that C.N. did not enjoy football and he was
not very good at it.
Related to C.N.’s relationship with Z.O., Katie stated that C.N. loves Z.O. and
likes spending time with her. Katie testified that she can manage both C.N. and Z.O.
at the same time now, and she is able to care for C.N.’s needs. Katie, Erich, and
Z.O. currently live a home that is owned by Erich. And Katie’s parents helped make
the down payment for that house. It has “almost five bedrooms,” and C.N. would
have his own room if he began living primarily with Katie again. However, the
home is also “for sale,” and she and Erich may move to Austin or “to the country.”
Katie noted that if C.N. began living primarily in her home again, her sister or mother
could help her in an emergency.
In Katie’s opinion, C.N. needs a stable environment and it would be in the
best interest of C.N. to live primarily with her. However, since 2012, she has moved
multiple times. In 2012, she and C.N. lived with her parents, then she moved to a
house on “Moss Road” for two years. Subsequently, Katie and C.N. stayed with
Erich’s father for a couple of weeks; they “didn’t move in,” they “just stay[ed] there
until [she] figured out where [they] were going.” Katie and C.N. then moved back
into Katie’s parents’ home for approximately a year. At some point, Katie also lived,
without C.N., in the home of Erich’s mother, although she could not recall when that
11
had occurred and for how long she had stayed there. Katie then moved back into
her parents’ home and subsequently moved into a “rent house in Burton.” C.N. lived
with her at that time, and they stayed at the “rent house in Burton” for two months.
Katie, C.N., and two of Katie’s friends then “moved [in]to another rent house in
Burton.” Katie and C.N. thereafter moved back into Katie’s parents’ home, and in
March 2015, she moved into a home that Erich had purchased. While Katie lived at
Erich’s home in 2015, C.N. would stay at the house with Katie three or four nights
a week on the weeks that Erich was away for work. During the other times, C.N.
would stay with Katie’s parents because she “just didn’t want that conflict around.”
In spring 2016, after C.N. began living primarily with Daron, Katie moved
back into her parents’ home. And she then moved into the home of her friend, Jessie
House, and then back into her parents’ home, before finally moving back into Erich’s
home once they reconciled. Katie testified that C.N. did not stay with her at House’s
home when he was in her possession, rather she and C.N. would stay at Katie’s
parents’ home during those times. On one occasion, she stayed at a motel with C.N.
because they “wanted to just spend time together.”
Katie currently works as a part-time bookkeeper for both her sister’s
restaurant and another business. Katie earns $12 an hour, and she works
approximately twenty hours per week. This is her only source of income. Since
February 2016, Katie has received training in phlebotomy and as a certified nursing
12
aide. Within the last year before trial, Katie had a full-time job as a secretary for a
business but quit because Z.O. was getting sick frequently at daycare. Katie has
been unable to find a job as a phlebotomist, and she has no plans to use her training
in phlebotomy to find work in the area. However, Katie enjoys “QuickBooks” and
would like to do “some kind of accounting thing.” At one point in time, Katie also
worked at a nursing home. And since 2012, Katie has worked at a bowling alley,
two accounting firms, her sister’s restaurant twice, and a mattress store, and she
attempted to sell birds on her own and without success. Katie also has “a clothing
boutique trailer,” from which she is not receiving any income. Katie she has had
approximately nine jobs since October 2012, but Erich’s income is sufficient to
support himself, Katie, and Z.O. Katie’s parents pay her child support obligation.
With respect to Daron, Katie testified that during a November 2015 telephone
call (the “November 2015 telephone call”) between Daron and C.N., Daron said:
“[P]ut that [f]-ing brat on the phone,” referring to C.N.2 Katie stated that the
telephone call was not a “setup” by her, and she was “in and out” of the room when
C.N. was speaking to Daron because she was caring for Z.O. at the time.
Katie also stated that she has seen Daron yell at C.N. at times other than just
during the November 2015 telephone call. For instance, at a rodeo, C.N. fell off of
2
The trial court admitted into evidence at trial an audio and video recording of the
November 2015 telephone call.
13
a horse and Daron was angry and said that “he was going to kill [C.N.]’s horse,”
which upset C.N. According to Katie, she has seen C.N. act afraid of Daron, but
also not act afraid of Daron, i.e., “sometimes he acts fearful and sometimes he acts
happy or excited.” Further, although Katie did believe that C.N. was afraid of Daron,
she admitted that she did allow Daron to see C.N. more often than the terms
prescribed by the 2012 order because she was “going through so much for years.”
Katie wants C.N. to have a good relationship with Daron and Danielle. And
Katie hopes that Daron wants C.N. to have a good relationship with her; however,
at one “drop-off” of C.N., Daron argued with and yelled and cursed at Katie in front
of C.N. According to Katie, in two out of ten “drop-off” meetings, Daron has
confronted her in some way. And he sometimes “make[s] [her] look bad in front of”
C.N. For instance, in fall 2016, Daron yelled at Katie and “told [her] that he
under[stood] why Erich left [her] stupid ass,” while C.N. was present. Katie noted
that she had tried not to disparage Daron in front of C.N., but that Daron had
disparaged her on one or two occasions since March 2016. At the time of trial, she
and Daron were no longer communicating by telephone or text message. Katie
opined that it would be good for C.N. to see his parents communicating in a civil
manner. However, Katie also explained that on one occasion when Danielle had
asked her to drop C.N. off for a football game, she did not do so because she was
“waiting for [Daron] to text [her] about th[e] situation,” not Danielle. Katie further
14
noted that while in Daron’s care, C.N. got “a huge gash in his foot” that was not
properly treated, and Katie took C.N. to the emergency room because it was “swollen
black and blue.”3
Katie additionally testified that in 2014, she borrowed money from Daron and
Danielle because she was depressed. Katie has repaid $2,000 to Daron, and she
intends to pay him the remaining amount owed. Katie also noted that in the past she
has taken money out of C.N.’s custodial account for purposes other than C.N.’s
education, such as to pay for her monthly expenses. For instance, at one point of
time after the 2012 order was entered, Katie signed a lease on a house, but then lost
her job. Daron then told her that she could use the funds in C.N.’s custodial account
to “finish getting the furniture for [her] home and pay the bills until [she] found a
job.” And she and Daron had an oral agreement that she would pay back the funds
that she took from the custodial account before C.N. turned eighteen years old. Katie
stated that she would start repaying the money back into C.N.’s custodial account
when “[her] career start[ed] [to] happen[].”4
3
In his First Amended Response to Katie’s Request for Admissions, a copy of which
the trial court admitted into evidence at trial, Daron admitted that in June 2016, C.N.
“got a bacterial infection in his foot” and Daron did not take him “to see a doctor.”
4
In her Responses to Daron’s Request for Admissions, a copy of which the trial court
admitted into evidence at trial, Katie admitted that she had borrowed money from
Daron, she had not repaid Daron the money that he had loaned her, and she withdrew
funds from C.N.’s custodial account.
15
Mother’s Psychological Evaluation
The trial court admitted into evidence at trial a copy of Katie’s May 16, 2017
psychological evaluation completed by Dr. Lawrence Bramlette. At the time, Katie
reported that she had graduated from high school and had “obtained a medical
assistant degree in 2004.” She was not currently employed, and she had last worked
at an electrician’s office for approximately one month. Katie was terminated from
that job because she missed work due to Z.O. being repeatedly sick while at daycare.
Katie reported that previously she had worked as a waitress at her sister’s restaurant
and she had been “let go from th[e] job,” while she was pregnant with Z.O., because
the restaurant’s business was slow.
Katie denied narcotics use or prescription medication abuse. And she reported
that “for the past two and one-half years, she ha[d] consumed 3-4 beers at a sitting
once every 3-4 months.” Katie denied having a criminal history.
Related to her mental health history, Katie denied current feelings of a
depressed mood, but she also expressed “feeling stressed and anxious and struggling
with intermittent feelings of hopelessness.” And Katie admitted to experiencing
“clinically significant depressive symptoms . . . on multiple occasions.” Katie
reported that she had been depressed in 2013 and that the depressive episode “lifted
approximately two months” before her evaluation. According to Katie, in 2014, she
was depressed and “felt [that] no one cared,” so she cut herself with a plastic knife
16
because she wanted attention. (Internal quotations omitted.) Katie was taken to the
emergency room as a result of the cutting incident. Katie also reported that she had
been participating in counseling sessions with Everitt for six years. Regarding
“Diagnostic Impressions,” the psychological evaluation lists: “Major Depressive
Disorder, Recurrent Episodes, In Partial Remission”; “Unspecified Personality
Disorder”; “Sexual Abuse of Child” (self-reported); and “Physical Abuse of Adult”
(self-reported).
In regard to Erich, Katie reported that their relationship began in April 2012.
Although Katie denied a history of physically assaultive fighting or domestic
violence, she stated that she had “called the police on [Erich] on six occasions,” and
Erich was incarcerated on one occasion “on family violence related charges.” Katie
denied witnessing or suspecting Erich of abusing, neglecting, or otherwise
mistreating C.N. However, Katie stated: “[C.N.] doesn’t like it when [Erich] yells
at me.” (Internal quotations omitted.) Katie and Erich began attending couples
counseling sessions with Everitt in August 2016, and at the time of her psychological
evaluation, they were attending one counseling session a month.
Related to her previous relationship with Daron, Katie reported that they had
separated approximately eighteen months after getting married and divorced
approximately one year later. Katie reported that Daron had “physically abused her
on numerous occasions” and that “people saw bruises on [her] all of the time.”
17
(Internal quotations omitted.) According to Katie, during one incident, Daron
“attempted to suffocate her with a pillow,” and another time, he “punched her in the
face three times in a row.” Katie never reported the incidents of domestic violence.
Further, Katie stated that Daron was emotionally abusive toward her and would yell
at her. Daron was controlling and would not allow her to work. Daron was “arrested
on multiple occasions for violating a protective order,” and according to Katie,
Daron “abused alcohol on a daily basis.”
In regard to C.N., Katie reported that while he lived primarily with her, he
was current on his medical checkups and immunizations. Katie’s home was, and
continued to be, stocked with food, appropriately furnished, had all utilities, and was
“free from unsanitary or otherwise inappropriate living conditions.” He was exposed
to yelling arguments while in Katie’s possession, but he was not exposed to domestic
violence or narcotics use. C.N. was not abused or neglected.
Further, during the 2014-2015 school year, while C.N. lived primarily with
Katie, he missed two to three weeks of school because “he didn’t feel good” and she
“babied him.” (Internal quotations omitted.) Katie also reported that C.N. was
hospitalized at an inpatient psychiatric facility for six days in August 2015 because
“he had flashbacks of [Daron] being mean.” (Internal quotations omitted.)
According to Katie, Erich yelling at her is what triggered the flashbacks.
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In regard to C.N.’s removal from her care, Katie reported that she had been
experiencing significant relationship stress with Erich at the time and she was
“putting [C.N.] on the back burner and focusing on Erich . . . too much.” (Internal
quotations omitted.) During that time, Katie began going out with friends and
drinking and she lost her job. Katie also reported that she had borrowed $7,000 from
Daron because she had “become involved with spiritualists,” who claimed to
practice a variation of witchcraft. (Internal quotations omitted.) The spiritualist told
Katie that she needed to pay her $6,000 to “perform a ritual that would result in
positive changes in [Katie’s] life.” Katie gave the spiritualist $5,000 and did not
hear from her again. Katie stated that she “still owe[d] Daron a lot of money.”
Katie further reported that since C.N. began living primarily with Daron, he
had adjusted poorly and was receiving failing grades at school. In Katie’s opinion,
C.N. was “terrified” of Daron and “hate[d]” Danielle. (Internal quotations omitted.)
Katie noted that she was seeking to have C.N. returned to her primary care.
Related to C.N.’s “specific parenting needs,” the psychological evaluation
concludes that at a minimum, C.N. requires a stable home environment that is free
from significant parenting failures, including parent-sanctioned school absences,
volatile relationship dynamics, repeated domestic disturbance calls to law
enforcement officers, and erratic parenting behaviors. Because of this, Dr. Bramlette
listed the following as areas of concern: Katie’s report that she had called law
19
enforcement officers on Erich on six occasions, with Erich being arrested on one
occasion, because it indicated a volatile relationship; Katie’s report of Erich yelling
at her and the distress that it had cause C.N., particularly because Erich’s yelling
contributed to C.N.’s inpatient psychiatric hospitalization; Katie’s report of
borrowing $7,000 from Daron and using the money for a “spiritualist ritual,” which
constituted erratic behavior and was indicative of poor judgment; Katie’s report of
cutting herself for attention; Katie’s report of repeatedly allowing C.N. to miss
school because she “babied” him; and Katie’s report of C.N. being “terrified” of
Daron and “hat[ing]” Danielle and whether that was leading to parental alienation
issues. (Internal quotations omitted.) Should C.N. resume living primarily with
Katie, Dr. Bramlette recommended that Katie participate in individual counseling
sessions and that Katie, Erich, and C.N. participate in family counseling sessions.
Dr. Bramlette lists in the psychological evaluation specific goals for Katie related to
psychological functioning and parenting.
Restraining Order
The trial court admitted into evidence at trial a copy of Katie’s Application
for a Temporary Restraining Order and Temporary Injunction filed against Erich on
June 15, 2016. In her affidavit attached to her application, Katie testified that she
met Erich in April 2012 and they started dating. In September 2012, Katie moved
out of her parents’ house and into a rental house, and Erich moved in with her.
20
Although their relationship was stable for a couple of weeks, “[a]fter one of [their]
first arguments, Erich packed his clothes and left.” Erich came home the next
morning after the fight, but on many occasions “in the years that [they had] lived
together,” when Erich would become upset or angry, he would “just pack his bags
and say [that] he was done.” (Internal quotations omitted.)
Katie further testified that, early in their relationship, Erich “would take [her]
[tele]phone and keys to try and prevent [her] from leaving during an argument.” And
on one night, in November 2012, Erich came home and started arguing with Katie.
He then “tried [to] shov[e] nicotine down [her] throat, pinned [her] down on the
bedroom floor, and tried to rip [her] shirt off.” When Katie “got away from him,”
she ran to her car to “call for help.” However, “Erich pulled [her] out of [the] driver’s
seat [of the car] before [she] was able to call.” Katie “fell in sticker burs and was
covered in them.” Katie eventually called for emergency assistance and two law
enforcement officers arrived. The officers stated that “they had to take [Erich] in”
because he and Katie lived together. Erich later called her “after being booked” and
apologized and asked if she “would take him back, again.” Katie forgave him and
he “promised never to hurt [her] again.” In December 2012, Erich’s family “started
being negative about [his and Katie’s] relationship and blamed [Katie] for [Erich]
going to jail.”
21
Moreover, Katie testified that in April 2014, Erich “broke off” his relationship
with Katie, and during that time, Katie moved back in with her parents. Despite the
separation, Katie became pregnant with Erich’s child, Z.O., and they eventually
reconciled.
According to Katie, her father then made a down payment on a home for her
and Erich. However, because Katie “didn’t have good enough credit to back up the
mortgage,” the house was put in Erich’s name only. Erich and Katie moved into the
home in March 2015, when Katie was five months pregnant with Z.O. Erich asked
Katie to quit her job and “promised to cover [her] expenses.”
At some point, Erich found a job that required him to be gone for two weeks
at a time. When Erich was away for work, he would leave Katie without any money
to care for Z.O. Erich also “started wanting to go out all the time,” and this made
Katie the sole caretaker for Z.O.
Katie further testified that in November 2015, Erich came to the house late
one night wanting to take Z.O. to his brother’s home. When Katie told him “no,”
Erich tried to “snatch her from [Katie’s] arms.” (Internal quotations omitted.) Katie
then “loaded [C.N.] and [Z.O.] in the car to get away from [Erich] because [Katie]
could tell that he was getting angry.” As Katie buckled Z.O. into her car seat, Erich
pulled Katie from the car door. C.N. told Erich to “leave [his] mom and sister alone.”
(Internal quotations omitted.) And Erich left. Afterward, Erich went back to
22
“behav[ing] well for a few weeks and then [he began] act[ing] threatening” again.
Erich ended his and Katie’s relationship in March 2016.
Katie additionally explained that, “Erich displays wildly different behavior.
He will threaten [her] and be hateful for [a] couple weeks” and then “act nice.” Katie
stated that she was afraid of Erich and his unpredictable behavior, and Erich has said
“degrading, belittling, and slanderous comments” about Katie. Katie opined that it
would not be in Z.O.’s best interest to have unsupervised visitation with Erich “due
to his lack of responsibility.” And Erich and his family would not be “positive
influences in [Z.O.]’s life.”
Step-father
Erich testified that he is married to Katie and he works on “a drilling rig.”
Erich met Katie in 2012 and they started living together, along with C.N., a few
months after they started dating. They have one child together, Z.O.
Currently, Erich, Katie, and Z.O. live in a four bedroom house with space for
C.N. When they were short on furniture at the house, C.N. may have slept on the
couch or in Katie’s bedroom while Erich was away. And for a certain unmentioned
length of time, C.N. did not have a bed at Erich’s house.5 In the past, C.N. had also
lived with Erich and Katie in the home of Erich’s father, with all three of them
sharing the same room. In another house, where Katie, Erich, and two of Katie’s
5
Erich stated that, at the time of trial, C.N. had a bed at the house.
23
friends lived, C.N. slept in the same room as Erich and Katie. However, according
to Erich, C.N. stayed about sixty percent of the time with Katie’s parents.
Eventually, Erich purchased the home where he and Katie now live, however,
Katie’s name is not on the deed. Erich noted that at one time in the past, he tried to
evict Katie from their home. At the time of trial, Erich and Katie’s home was “for
sale,” and Erich hoped that they would move “somewhere in the country.”
Erich further testified that C.N. is his step-son and they have a good
relationship. Erich takes C.N. fishing, and they play basketball and video games
together. Previously, Erich helped with C.N.’s football team. When asked whether
he had ever physically disciplined C.N., Erich stated: “[M]aybe . . . a handful of
times when there ha[d] been times where he[] . . . disrespected [Katie] to the point
where[] . . . he wouldn’t do what she said.” Erich also stated that he had helped C.N.
with his homework “a handful of times” and he had eaten lunch with C.N. at school.
While he is in Katie’s possession, after school, C.N. does his homework, if he has
any, and then he has “leisure time” where he plays video games until bedtime.
In Erich’s opinion, C.N. enjoys the time that he spends with Katie and they
have a close relationship. Katie is the primary disciplinarian, and she disciplines
C.N. by taking away his video games. Further, C.N. responds to Katie’s disciplinary
tactics, and Katie has control over C.N. However, Erich noted that, in the past, Katie
has not always been able to control C.N.’s behavior. In Erich’s opinion, C.N.’s
24
physical and emotional well-being would not be impaired if he was to live primarily
with Katie.
In regard to Z.O., Erich explained that she was a difficult baby and he and
Katie were stressed after she was born particularly because Erich would leave Katie
alone at home with Z.O. for two weeks at a time so that he could go to work. Erich
would then return home for two weeks and subsequently leave again for another two
weeks. According to Erich, Z.O. would scream “on and off continuous[ly].” The
stress of having Z.O. caused “friction” in his and Katie’s relationship, and Erich and
Katie argued every day. Erich and Katie broke off their relationship in spring 2016,
but later reconciled in summer 2016. And he and Katie then began participating in
couples counseling sessions together “[t]o fix the problems that [they] were having
at the time.” Through counseling, he and Katie have learned tools for resolving their
“communication issues.” Their relationship is strong now, and they continue to
attend couples counseling sessions. They do not argue “like [they] used to.” Erich
estimated that, over the course of their relationship, he and Katie had separated “a
handful of times.”
Erich also confirmed that, in the past, he would take Katie’s cellular telephone
and keys in order to prevent her from leaving during an argument. And on one
occasion, he “tried [to] shov[e] nicotine down [Katie’s] throat, pinned [her] down
on the bedroom floor and tried to rip [her] shirt off.” When Katie ran outside to her
25
car to “try to call for help,” Erich “pulled [her] out of the driver’s seat” and she fell
in “sticker burrs.” Erich recalled that he was also “put in jail” on one occasion in
fall 2012. And another time, C.N. tried to “break up a fight” between Erich and
Katie. According to Erich, at that time, Katie was attempting to leave in her car with
Z.O., but Erich felt that he had “gone . . . a longer period of time than . . . [he] should
have without seeing” his child. Erich went out to the car “to unstrap [Z.O.] out of
her car seat,” and Katie tried to stop him. C.N. then pushed Erich and appeared
scared.
Erich further testified that he has seen C.N. appear to be intimidated by Daron.
And previously when C.N. lived primarily with Katie, he would bite his nails, exhibit
nervous ticks, and be generally unsettled when he was going to see Daron.
Moreover, Erich has observed C.N. running around the house locking doors, which
initially appeared to be out of fear but now has become a routine. On “a handful” of
occasions, Erich has seen Daron be verbally aggressive toward C.N. For instance,
when C.N. fell off his horse at a rodeo event, Daron walked aggressively over to
C.N. and began screaming and cursing. Daron also said that he was going to “kill”
the horse, which caused C.N. to become withdrawn. Also, in 2013, Daron grabbed
C.N. “pretty hard” and dragged him into the bathroom at a restaurant. C.N. then
came out of the bathroom crying. According to Erich, Daron would not always show
26
up for C.N.’s football practices or games, and in Erich’s opinion, Daron was
resentful that Erich was participating in C.N.’s extracurricular activities.
Father
Daron testified that he is C.N.’s father, he is married to Danielle, and at the
time of trial, Danielle was pregnant with their child. Daron and Danielle also plan
on having an additional child in the future.
Daron owns a trucking company, is self-employed, and works in the oil field
industry. Daron has owned his trucking company since 2011, it operates in
forty-eight states, and Daron has six employees. At the time of trial, Daron had hired
a certain employee so that he would no longer be required to travel out of town as
frequently. In the past, Daron would spent approximately three nights a week out of
town.6
Currently, Daron, Danielle, and C.N. live in a house in the country. Daron
stated that he and Danielle have a “pretty good relationship,” although they argue
“[p]robably a couple times a month.” Daron is not physically abusive to Danielle.
6
In his First Amended Response to Katie’s Request for Admissions, Daron admitted
that “the only person in [his] home with [C.N.]” while Daron is working is Danielle.
And in his Response to Katie’s First Set of Written Interrogatories, a copy of which
the trial court admitted into evidence at trial, Daron stated that he “do[es] not have
a weekly work schedule.” He “receives calls to haul and [he] can either take the job
[himself] or assign someone to the job.” “Over the past [twelve] months, [he] ha[s]
worked some weekends,” but his schedule varies each week.
27
In regard to his mental health history, Daron testified that he sees a counselor
and takes “a bipolar medicine.” He last saw his counselor four or five months before
trial. Daron further stated that he had been diagnosed with ADHD and has taken
medication for his ADHD in the past. According to Daron, he has anger
management issues, but he takes medication to make him calmer.7 And Daron, in
the past, has had problems with impulse control when dealing with people.8 Daron
believes that he has his anger management issues more in control than he has in the
past. However, he becomes mad if Katie calls him multiple times. When Daron is
overwhelmed, he feels “stressed out.” Daron consumes a “six-pack” of beer every
two weeks approximately.
Related to C.N., Daron stated that after the 2012 order was entered, he saw
C.N. more often than the order prescribed. However, when Daron would see C.N.,
who was living primarily with Katie at the time, he would notice that C.N. had poor
hygiene. C.N. was not bathing, brushing his teeth, using deodorant, and could not
tie his shoes. After C.N. began living primarily with Daron, he learned to do daily
chores, which include feeding their animals, cleaning his room, making his bed, and
7
In his First Amended Response to Katie’s Request for Admissions, Daron admitted
that he takes “medication for anger management” in order to “keep calm” because
he does not “handle things right.” (Internal quotations omitted.) He also admitted
that he takes medication for “ADD” and a “mood stabilizer.”
8
In his First Amended Response to Katie’s Request for Admissions, Daron also
admitted that he has had “problems controlling [his] anger.”
28
sweeping the floor. C.N.’s demeanor in Daron’s home is “[g]ood” and “[a]mazing,”
and he is respectful. C.N. and Daron like to go “trucking” and hunting together.
During the summer before trial, C.N. traveled with Daron, and he attended a
basketball camp. Daron has seen improvement in C.N. since he began living
primarily with him. Daron has talked to C.N. about the new baby that Daron and
Danielle are expecting, and C.N. is excited to have a new sibling.
Since C.N. has been living primarily with Daron, Daron helps him with his
homework when Daron is not working, but Danielle helps him with his homework
“[a]ll the time.” In Daron’s opinion, he helps C.N. with his homework about twenty
percent of the time, while Danielle helps C.N. the remaining eighty percent of the
time. Currently, C.N. is in two resource classes at school and has friends, although
C.N. did get into a couple of fights at school in spring 2017.
Daron further testified that he and Danielle are both responsible for seeing
that C.N. takes his ADHD medication. C.N.’s behavior has improved, and he is
“doing a lot better” since adjustments were made to his ADHD medication.
Although C.N. is not “bad” when he is not taking his medication, a person has “to
have control of him.” According to Daron, when C.N. is living primarily with him,
he is “fine” regardless of whether he is on ADHD medication or not. However, the
ADHD medication helps C.N. listen at school. Daron noted that he and C.N. went
to three counseling sessions together after C.N. began living primarily with Daron,
29
and the counselor that they saw said that they had “nothing really to discuss
anymore” and that they were “doing great.” Daron has paid for C.N.’s medical
insurance since birth and plans to continue paying for it.
Related to C.N.’s extracurricular activities, in fall 2015, Daron went to a lot
of C.N.’s football games, although he may have missed some practices because of
work. Daron was unable to attend C.N.’s school award ceremony because he was
out of town, but he attended many of C.N.’s basketball games. And Danielle
attended all of C.N.’s basketball games. Since C.N. began living primarily with
Daron in spring 2016, Daron has enrolled him in football and basketball. C.N. is
also planning on “showing” a heifer.
In regard to the November 2015 telephone call, Daron stated that during the
telephone call, he told Katie to “put that [f]’ing brat on the phone,” he “threatened
to put [C.N.] on his knees for three hours,” and he accused C.N. of laughing.9
According to Daron, he made the statement about having C.N. stand on his knees,
as a form of discipline, in reference to an upcoming visit that C.N. was to have with
Daron, but he never was actually going to do that to C.N. Daron explained that Katie
had called him eleven times on the day of the November 2015 telephone call, he
believed that she was “harassing” him and “setting [him] up,” and Katie was the
9
In his First Amended Response to Katie’s Request for Admissions, Daron admitted
that “during a [tele]phone call with Katie, [he] told her to ‘put that fucking brat on
the phone,’ referring to [C.N.]”
30
person who initiated the November 2015 telephone call. In any event, Daron
admitted that he had “made a mistake” speaking in such a manner to C.N.
Daron also explained that, at a past rodeo event, when the event was running
late, he wanted to take C.N. home. Daron ended up picking C.N. up and carrying
C.N. to his truck. Further, on another occasion, C.N. fell off of his horse at a rodeo
event, and Daron rushed over to him and said something like that he wanted “to kill
the horse,” although Daron did not recall actually using the word “kill.” Daron stated
that he had never made disparaging remarks about C.N. in C.N.’s presence.10
In Daron’s opinion, C.N. needed discipline, which Daron does typically by
talking to him, “taking his [video] games away,” and not allowing C.N. “to ride the
Ranger.”11 Daron stated that, in the past, his own behavior has contributed to C.N.’s
behavioral issues and he had, in the past, told Katie to “whoop [C.N.’s] ass” if she
called him needing disciplinary advice. According to Daron, while C.N. lived
primarily with Katie, Katie would call Daron every week and ask him to discipline
C.N. over the telephone, and Katie had expressed concerns about being unable to
control C.N.
10
In his First Amended Response to Katie’s Request for Admissions, Daron admitted
that at a football practice for C.N.’s team during fall 2015, he told Erich, “We have
to knock the pussy out of this kid,” while referring to C.N. (Internal quotations
omitted.)
11
Daron stated that the “Ranger” is an “ATV” that C.N. is allowed to ride on Daron’s
property.
31
Daron further testified that C.N. loves Katie and has a close relationship with
her. And when asked whether C.N. wants to live with Katie, Daron stated: “One
minute he does, and the next minute -- it depends.” C.N. “wants to make everybody
happy,” and he will tell Daron “what [Daron] want[s] to hear,” just like he does with
Katie. In Daron’s opinion, C.N. likes living with Daron because C.N. appreciates
the structure at Daron’s house and he “has everything at [Daron’s] house.” And
Daron believes that C.N. should continue living primarily with him. C.N. does not
fear Daron, and C.N. has a bond with Daron’s father, although Daron admitted that
C.N. is closer with Katie’s parents. Daron explained that C.N. should spend a lot of
time with Katie, but “[s]he needs to step up to the plate and do her job.”
In regard to Erich, Daron stated that law enforcement officers had been called
regarding Erich six times.12 And when asked whether he wanted C.N. to have a good
relationship with Erich, Daron stated: “As long as he do[es not] put his hands on
[C.N.] like he did.”
Moreover, Daron testified that he had previously deposited $12,000 into
C.N.’s custodial account to be used for C.N.’s education. And he had never signed
an agreement that permitted Katie to use the funds in C.N.’s custodial account for
12
In his Responses to Katie’s First Set of Written Interrogatories, when asked to
“[i]dentify all occasions when the Police Department ha[d] been called to any of
[his] residences since October 15, 2012,” Daron stated that law enforcement officers
“ha[d] not been called to [his] residence since October 15, 2012.”
32
her own personal use. However, he did verbally tell her when she was unemployed
that she “could take some money out” to buy furniture for C.N. and then repay it.
At the time of trial, there were no funds remaining in C.N.’s custodial account, and
Daron explained that he had never taken any money out of the account. Further,
according to Daron, he had loaned Katie approximately $7,000 since 2012.
Daron requested that the trial court allow C.N. to remain living primarily with
him, where C.N. had been living for the previous sixteen months, and that Daron be
named as the joint managing conservator with the exclusive right to designate C.N.’s
primary residence.
Father’s Psychological Evaluation
The trial court admitted into evidence at trial a copy of Daron’s May 15, 2017
psychological evaluation completed by Dr. Bramlette. At that time, Daron reported
that he had graduated high school and he had been the owner of “DN Trucking LLC”
since 2011. Daron had nine employees and “dr[ove] a trucking route to Odessa,
Texas” which caused him to be away from home one or two nights each week.
Daron denied any narcotics use or prescription medication abuse, and he
reported that he “consume[d] alcohol (1-6 beers at a sitting) 1-2 times per month.”
Related to his mental health history, Daron reported that he had been diagnosed with
ADHD as a child and “has since been prescribed various medications . . . to treat his
ADHD symptoms.” Daron had also “worked with a therapist . . . on an occasional
33
basis over the past five years,” he attended court ordered counseling sessions with
C.N. for approximately one year, and C.N. last met with Daron’s counselor in
September 2016.
Related to his criminal history, Daron reported that he was “charged with [a]
DWI on one occasion at [the] age of [nineteen]” and he had “violated a protective
order three times within a six month period in 2007.” According to Daron, “he was
incarcerated over[]night on the first two arrests and was incarcerated for [thirty] days
on the third arrest.” Daron “violated the protective order [obtained] by [Katie] by
[tele]phone and by coming on to her property on one occasion.” Regarding the
telephone contact, Daron “said some things” to Katie that he “shouldn’t have said,”
but his comments were “not threatening”; rather, they were “mean spirited.”
(Internal quotations omitted.)
In regard to Danielle, Daron reported that he and Danielle had been married
for four years, and he denied “any history of assaultive fighting or related domestic
violence” in their relationship. Danielle did not use narcotics or abuse alcohol. At
the time of the evaluation, C.N. had been living primarily with Daron for
approximately two years, and C.N. was “positively bonded” with Danielle.
Related to his previous relationship with Katie, Daron reported that they were
married in 2004 and separated when C.N. was approximately two years old. He and
Katie then subsequently divorced. Daron denied any history of domestic violence
34
in their relationship and “reported that the police were never called on a domestic
disturbance related matter.” According to Daron, Katie did not use narcotics or
abuse prescription medication during their relationship, but he described her alcohol
use as “pretty heavy” and stated that she “abus[ed] alcohol” at the time. (Internal
quotations omitted.) Katie also struggled with depression and “had a history of
multiple suicide attempts.” Daron did not believe that Katie had been mistreating
C.N. during the course of his and Katie’s relationship. And Daron denied ever
physically abusing Katie.
Daron further stated that after he and Katie separated, Katie “attempted to
reunite with him on several occasions and cut on herself when he refused.” Daron
and Danielle have given Katie approximately $10,000 “so that she could obtain
mental health treatment for her problems,” which Katie has never repaid.
In regard to C.N., Daron explained that C.N. was “doing way better” since he
began living primarily with Daron. (Internal quotations omitted.) Daron “lives on
a farm” and his home is stocked with food, is fully furnished, has all utilities, and is
“free from unsanitary or otherwise inappropriate living conditions.” Daron reported
that he was “concentrating on [C.N.’s] grades” and “his behavior ha[d] been great.”
(Internal quotations omitted.) Daron takes away certain privileges in order to
redirect C.N.’s behavior. According to Daron, C.N. has friends, but does have “some
social problems.” (Internal quotations omitted.) C.N. plays basketball and plans on
35
“showing a [heifer] he has raised.” Since he began living primarily with Daron, C.N.
has attended school on a consistent basis, and he is current with his medical checkups
and immunizations. Daron wants C.N. to continue living primarily with him.
Daron further admitted that C.N. is “excited to see [Katie] on weekends” and
loves Katie. (Internal quotations omitted.) Daron believes that it is important for
C.N. to have Katie in his life. However, Daron reported that when C.N. “returns
from his weekend visits” with Katie, he has not bathed and is “dressed slovenly.”
Moreover, there is not a bed for C.N. at Katie’s home, and C.N. has run away from
Katie’s home on two occasions.
The psychological evaluation notes that Daron “put forth a guarded effort on
various self-report tasks” and exhibited a “non-disclosing” manner; thus, Dr.
Bramlette explained that the evaluation “may [have] fail[ed] to fully capture certain
aspects of [Daron’s] character or psychological difficulties.” However, the
evaluation concludes that “[a]bsent valid collateral information indicating that
[C.N.’s] current placement [with Daron] is toxic or otherwise harmful,” there is no
“evidence for psychopathology that would preclude [Daron] from having [C.N.]
remain in his care.” At the very least, C.N. “require[s] a stable home environment
that is free [from] significant parenting failures.” Should C.N. remain living
primarily with Daron, Dr. Bramlette recommended that Daron, Danielle, and C.N.
participate in family counseling sessions.
36
Step-mother
Danielle testified that she has been married to Daron for four years and is
currently employed at “Project Tools” in the field of “on-line project management
software.” According to Danielle, Daron usually travels for work two nights a week.
If C.N. is visiting with Katie over a weekend, Daron will usually do a work trip over
the weekend as well. Although Danielle and Daron are expecting a baby, Danielle
stated that she did not have any concerns about being able to parent C.N. and a baby
at the same time.
In Danielle’s opinion, she has a good relationship with C.N., as does Daron,
and C.N. respects Danielle. C.N. does not exhibit fear or anxiety when he is in
Daron’s home. On a typical school day, C.N. “gets up to his alarm,” that he has set
for himself, and gets ready for school. C.N. then comes to Danielle and Daron’s
room to take his medicine. C.N. will also “feed his heifer in the morning” and “let
the chickens out.” C.N. then goes to school, and after school, he usually attends the
“Boys & Girls Club.” After Danielle picks him up, C.N. goes home and starts his
homework while Danielle cooks dinner. Danielle helps C.N. with his homework
about eighty percent of the time, while Daron helps him the remaining twenty
percent of the time. After dinner, C.N. takes a shower and then goes to bed.
According to Danielle, C.N. has become “pretty much independent” while living
with Daron; however, when he first began living primarily with Daron in spring
37
2016, he could not do any of the aforementioned things. For instance, it was difficult
to get C.N. up in the morning and he could not tie his shoes. Further, his backpack
contained books and notebooks from a school that he had not attended in more than
six months as well as food and candy. And C.N. did not initially want to do
homework, but she and Daron have “just worked with him” and now it is part of his
routine.
Danielle further testified that she attends C.N.’s medical appointments and
C.N. currently takes his ADHD medication every morning. C.N. “always” takes his
medication when he is in Daron’s possession. Danielle further noted that C.N. and
Daron are “always together” and Daron takes C.N. hunting with him. Daron also
enrolled C.N. in football in fall 2016, but Katie would not take him to football
practices when he was in her possession and C.N. was “penalized . . . for not making
some of the practices” and games. C.N. did not miss any football practices when
C.N. was in Daron’s possession. Previously, Katie had been supportive of C.N.
playing football when C.N. had been living primarily with her, but she stopped being
supportive after C.N. began living primarily with Daron and did not attend any of
C.N.’s football games in fall 2016. Recently, C.N. had attended basketball camp,
and he has played in a basketball league while living primarily with Daron. C.N. is
also involved in “4-H” events, and Danielle takes him to “4-H” meetings once a
month. In the past, Daron had not attended C.N.’s “4-H” events.
38
Danielle also noted that she and Daron discipline C.N. by telling him to go to
his room or by taking his video games away. Occasionally, they have C.N. run laps
as a form of discipline so that he “get[s] a little extra workout . . . instead of just
going to sit in his room.” Danielle has not seen Daron use “unnecessary measures
to discipline” C.N.
Related to C.N.’s school work, Danielle testified that C.N., prior to primarily
living with Daron, “failed two classes” during the “first six weeks” of his fifth grade
school year, “failed four [out] of . . . five classes” during both the “second six
weeks” and the “third six weeks” of the school year, and “failed three [out]
of . . . five classes” during the “fourth six weeks” of the school year. After beginning
to primarily live with Daron in spring 2016, however, C.N. “only failed one class”
during the “fifth six weeks” of the school year and only one class during the “sixth
six weeks” of the school year. Danielle noted that C.N. does still struggle at school
and still has behavioral issues. And in spring 2017, when C.N.’s “behavior issues
started popping up again,” she and Daron “sat down with [C.N.] and . . . made a
behavior plan” for C.N. to follow for school, “like go sit down, face forward, don’t
talk to kids and between classes go straight to [his next] class.” The behavior plan
is taped on the wall in C.N.’s bedroom. The goal for the behavior plan is for C.N.
“to start trying to figure out on his own what he needs to be doing.”
39
In regard to the November 2015 telephone call, Danielle stated that she was
not present when Daron spoke to C.N. on that day. However, she has never heard
Daron speak to C.N. in that manner in the past, and Danielle agreed that Daron’s
threat directed toward C.N. was extreme.
Further, Danielle explained that when C.N. fell off of his horse at the rodeo
event, Daron was scared and angry and ran over to C.N. and “started yelling.” And
Daron moved aggressively toward C.N. and the horse. Danielle did not remember
whether or not Daron said he was “going to do something to the horse.” In Danielle’s
opinion, C.N. was not able to control the horse correctly which led to him falling
off. C.N. went to the hospital after falling off the horse.
In regard to C.N. and Katie’s relationship, Danielle noted that C.N. misses
Katie and he loves her. Danielle has heard C.N. state that he wants to live with Katie,
but also that he wants to live with Daron. Danielle has seen Katie speaking
negatively about Daron in C.N.’s presence. However, Danielle has not seen Erich
inappropriately discipline C.N. or do anything detrimental to C.N.
Moreover, related to Katie specifically, Danielle testified that in 2014, Katie
asked her and Daron for $1,900 for “medical stuff,” which they gave her. Katie then
asked Danielle for an additional $7,000, but told Danielle not to tell Daron that she
had asked for money. Finally, Katie asked Danielle and Daron for $5,800, telling
them that “it was a life or death situation,” which prompted them to give Katie the
40
money. Later, Danielle and Daron found out that the money had been used by Katie
“for [a] spiritualist.”
School Teachers
Christy Lynn Smith testified that she is a fifth grade reading and math resource
teacher. C.N. was a student in her resource math class in fall 2015 and a student in
her resource math and reading classes in spring 2016, as C.N. had “some special
needs as a student.” According to Smith, C.N. lived primarily with Katie and also
with Katie’s parents in fall 2015, and then C.N. began living primarily with Daron
in spring 2016. After C.N. began living primarily with Daron, he seemed more
focused, was better behaved in class, and started “performing better.” Smith also
stated that she would receive homework more often from C.N. after he began living
primarily with Daron. Previously, it was “hit or miss” whether or not she would
receive homework back from C.N.13
Smith further explained that prior to living primarily with Daron, C.N. was
very distracted at school, got into trouble “quite a bit,” and he had “altercations with
other kids in school.” C.N. did not appear to care about school; “he was just kind of
there because he had to be there.” C.N. also exhibited “avoidance behavior[s],” like
asking to go to the restroom and never returning to class because he was “hiding out
13
In viewing school records from C.N.’s sixth grade year at trial, Smith noted that it
appeared that both Katie and Daron were helping C.N. with his homework.
41
in the bathroom.” It did not appear that C.N. had a lot of friends in his class, and
C.N. had “ups and . . . downs as far as his behavior.” If there were issues with C.N.
during fall 2015, Smith would contact Katie’s mother because “she was easier to get
in touch with.”
Smith further testified that toward the end of the year, she did not see “as many
issues” with C.N. If there was an issue with C.N. at school, Smith would tell him
that she was going to call Daron and that would “fix it,” and C.N. would redirect his
behavior. Smith would also notify Daron if there had been a problem at school. In
Smith’s opinion, C.N.’s behavior improved after he began living primarily with
Daron. Smith also testified that she does not have any concerns about C.N. being
abused in Daron’s care and C.N. did not appear to be fearful of Daron.
Kimberlee Rooker testified that she is a sixth grade reading and math resource
teacher. C.N. was a student in her resource math and reading classes in fall 2016
and spring 2017. C.N. spent approximately half of his school day in Rooker’s
classes. According to Rooker, C.N. lived primarily with Daron during his sixth
grade school year. C.N. came to school dressed appropriately and clean, and he was
not excessively absent from class.
Rooker further explained that at the beginning of the school year, C.N. was a
“[g]reat kid,” did not have any problems, and did everything that she asked of him.
However, throughout the year, she did see some behavioral problems. For instance,
42
C.N. “would get into verbal confrontations with . . . other boys in the classroom”
and made “some inappropriate comments” to another classmate. However, Rooker
also noted that C.N. had a few friends and was “very likable.” According to Rooker,
when C.N. entered the sixth grade he was reading at a second or third grade level,
but by the end of the sixth grade, he was reading at a fifth grade level. Rooker noted
that Danielle helped C.N. with his reading. In Rooker’s opinion, C.N. bites his nails
out of habit, rather than in response to a particular thing.
Rooker also explained that she met with Danielle before C.N.’s sixth grade
school year and they decided that C.N. would have a “homework sheet” where he
was to write down his homework for each class. Rooker expressed concern
regarding one incident where she believed that Katie had actually completed C.N.’s
homework for him.
In regard to parental involvement, Rooker noted that Katie would come eat
lunch with C.N. at school, which made C.N. excited, and Katie attended C.N.’s end
of the school year party. Rooker also spoke to Katie via text messages about C.N.
and school. Daron attended the “open house” at the beginning of the school year,
and Rooker spoke to Daron on the telephone a few times when she needed help
redirecting C.N.’s behavior. According to Rooker, Danielle was extremely active in
C.N.’s schooling, and Rooker and Danielle exchanged email correspondence,
Danielle attended the “open house” and other meetings related to C.N., and she sat
43
in the classroom after C.N. had been exhibiting behavioral issues. Rooker did not
have any concerns regarding C.N. being abused by Daron, and C.N. did not appear
to be afraid of Daron. In Rooker’s opinion, C.N. needs structure in his life.
Laura Kwiatkowski testified that she is a special education counselor for the
school district where C.N. attended school in fifth and sixth grade and she is familiar
with C.N.’s school records. In fifth grade, at the beginning of the year, C.N. was not
doing well behaviorally or academically. He was not able to focus, sit, or give
attention to his school work. He was disruptive in the classroom, did not want to do
school work, and the school work was hard for him. At the time, C.N. was not taking
medication for ADHD regularly which caused his behavior to be unstable.14
According to Kwiatkowski, C.N.’s ADHD is “[p]retty severe.” C.N. would get into
fights with other students, did not have age-appropriate social skills, and had poor
grades. During this period of time, C.N. was living primarily with Katie, and
Kwiatkowski had concerns about C.N. being able to complete his school work and
have consistent medical care while in Katie’s possession. Kwiatkowski did speak
to Katie “quite a few” times during fall 2015, and Kwiatkowski agreed that Katie
“seem[ed] to be an appropriately concerned mother.”
14
Kwiatkowski noted that Katie had informed the school that in fall 2015, C.N. was
“off [his ADHD] medication for a[]while because they were adjusting” it and he
was “seeing a doctor.” Kwiatkowski also explained that C.N.’s ADHD medication
was changed “to a pill” rather than “a patch” because the “patch” was not being
given consistently while C.N. was living primarily with Katie.
44
In Kwiatkowski’s opinion, C.N. changed over the course of his fifth grade and
sixth grade years. When C.N. takes his ADHD medication consistently, he is able
to sit in a chair and focus and his disruptive behaviors occur less frequently. C.N.
started doing his homework consistently, his grades improved, his “study skills”
improved, and he was not as impulsive socially. C.N. has reported that Danielle
helps him with his homework. When asked “what was the most significant change
that [Kwiatkowski] saw in [C.N.] when he moved from [Katie’s] home into [Daron’s
home],” Kwiatkowski stated: “The ability to sit still in class, to focus on class work,
to . . . make some progression with school work . . . because he [is] able to listen and
focus.” Kwiatkowski conceded that C.N. still failed certain classes during his sixth
grade school year while he was living primarily with Daron.15
Kwiatkowski also noted that Katie had previously told her that Daron had
been abusive in the past and verbally and physically abusive toward C.N. And Katie
encouraged Kwiatkowski “to be careful in what [she] said to” Daron and not to speak
with Daron altogether. However, in the interactions that she has had with Daron,
Kwiatkowski did not feel that Katie’s concerns had been corroborated. After C.N.
began living primarily with Daron, Daron and Danielle met with Kwiatkowski to
15
The record indicates that C.N. failed one class during the third six weeks of his sixth
grade school year, two classes during the fourth six weeks of the school year, one
class during the fifth six weeks of the school year, and one class during the sixth six
weeks of the school year.
45
discuss goals for C.N., and Daron appeared to be interested in C.N.’s well-being at
school. Kwiatkowski did not have any concerns regarding abuse of C.N. by Daron
or in Daron’s home. In Kwiatkowski’s opinion, C.N. needs stability in his life.
In regard to the November 2015 telephone call, Kwiatkowski stated that she
had heard the audio recording and she did not “feel[] that it was[] . . . abusive.”
Further, neither she nor law enforcement officers were concerned by what they heard
on the recording. However, Kwiatkowski also agreed that C.N. sounded
“[p]ossibly” distressed during the telephone call, that Daron made “a verbal threat,”
and that it was “an abusive threat.”
CPS Investigator
Child Protective Services (“CPS”) Investigator Latorsha Perry testified that a
“[a] case was open[ed]” in November 2015 related to an allegation of “abuse or
neglect” of C.N. As part of her investigation, Perry met with C.N. in February 2016,
while he was still living primarily with Katie. At that time, he appeared very
anxious, fearful, and withdrawn. C.N. also appeared to be “very scared of what to
say” and was “watching every word he said.” Perry later met with C.N. again in
March 2016 “during [a] week that he was with [Daron] . . . exclusively,” and he was
smiling, happy, relaxed, and carefree. C.N. told Perry “about what he was wearing”
and about “what he was going to do for th[at] weekend with [Daron].” According
to Perry, C.N.’s “spirits w[ere] . . . lifted” and “[h]is eyes were lit up.”
46
Perry also spoke with Katie during her investigation, who told her that she
was “having a hard time in her relationship” with Erich, partly because of C.N.’s
behavior. Katie also disclosed that “she wanted [C.N.] to be with her parents because
she thought that they could . . . do a better job with him and handling him.”
At the end of Perry’s investigation, CPS concluded that “there was no abuse
or neglect” of C.N. occurring.
Guardian Ad Litem
Catherine Kenjura testified that she was appointed as C.N.’s guardian ad litem
in the instant case, and she met with C.N. four times. When Kenjura met with C.N.,
he did not appear fearful. According to Kenjura, C.N. has stated that he wanted to
live with Katie, and in Kenjura’s opinion, C.N. has a “strong bond” with Katie and
loves her. However, Kenjura stated that, based on her investigation, she believed
that Daron should have the right to designate the primary residence of C.N., although
in her opinion, C.N. “should have . . . some sort of extended time with [Katie] so
long as it doesn’t affect his education and behavior.”
In her guardian ad litem report, a copy of which the trial court admitted into
evidence at trial, Kenjura stated that she met with C.N., Katie, Erich, Daron,
47
Danielle, Katie’s parents, House,16 Rooker, Peggy Still,17 Kwiatkowski, Michael
Murphy, and Perry “to determine what [was] in the best interest of C.N.”18 And
based on “the information provided and [her] investigation,” in Kenjura’s opinion,
“it is in the best interest of C.N. for . . . Daron . . . to have the exclusive right to
[designate] the primary residence of [C.N.], and for both Katie . . . and
Daron . . . [to] remain [as] joint managing conservators” of C.N. However, Kenjura
also stated that Katie should be allowed “an extended visitation schedule of some
sort, so long as reports from [C.N.’s] school show the education and behavior of
C.N. [is] not [being] affected negatively by it.” Kenjura noted that her opinion was
based, in part, on her conversations with Rooker, Still, and Kwiatkowski, who
“indicated strongly that [C.N.’s] education and behavior ha[d] improved
since . . . mov[ing] to [Daron’s] residence” and that C.N. continuing to live primarily
with Daron was in his best interest. Further, “the psychological evaluations of [Katie
and Daron] reinforce[d] [Kenjura’s] opinion that residing in [Daron’s] residence
[would be] in the best interest of C.N.” And according to Kenjura, C.N. never
16
At trial, House testified that she is a friend of Katie’s family.
17
At trial, Still testified that she is the principal of the school C.N. attended during
fifth grade and sixth grade.
18
Although Kenjura’s report also stated that she contacted Everitt, it is undisputed that
Kenjura did not speak to Everitt prior to trial. At trial, Everitt testified that she is a
marriage and family counselor and C.N. and Katie had both participated in
individual counseling sessions with Everitt. Katie and Erich also attended couples
counseling sessions with Everitt.
48
indicated to her that he was fearful or worried that he would be harmed while living
with Daron.19
Modification
In her second issue, Katie argues that the trial court erred in modifying the
existing order in a suit affecting the parent-child relationship and naming Daron as
the joint managing conservator with the exclusive right to designate C.N.’s primary
residence because the evidence is factually insufficient to support the trial court’s
findings that there had been a material and substantial change warranting
modification since the 2012 order establishing conservatorship, possession, or
access and that modification was in the best interest of C.N.
Trial courts have wide discretion in determining issues of custody, control,
possession, support, and visitation matters involving children. Gillespie v. Gillespie,
644 S.W.2d 449, 451 (Tex. 1982); In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied); Turner v. Turner, 47 S.W.3d 761, 763 (Tex.
19
We note that additional witnesses testified at trial on behalf of both parties. The
Court has reviewed the complete record in the instant appeal, including all testimony
and evidence presented to the trial court. See TEX. R. APP. P. 47.1, 47.4; Sullivan v.
Arguello Hope & Assocs., PLLC, No. 03-18-00144-CV, 2018 WL 6424200, at *1
n.2 (Tex. App.—Austin Dec. 7, 2018, no pet.) (mem. op.) (“Because the parties are
familiar with the facts of the case and its procedural history, we do not recite them
in this opinion except as necessary to advise the parties of the Court’s decision and
the basic reasons for it.”); Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d
613, 625 (Tex. App.—Fort Worth 2011, pet. denied) (noting appellate court
reviewed complete record).
49
App.—Houston [1st Dist.] 2001, no pet.). We review a trial court’s order modifying
the parent-child relationship for an abuse of discretion. Stamper v. Knox, 254
S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also E.T.-M.
v. Tex. Dep’t of Family & Protective Servs., No. 03-18-00622-CV, 2019 WL
988222, at *2 (Tex. App.—Austin Mar. 1, 2019, no pet.) (mem. op.) (“We review a
trial court’s decisions regarding conservatorship, including a determination of which
conservator will have the exclusive right to establish the child primary residence, for
an abuse of discretion.”). We reverse a trial court’s order only if we determine, from
reviewing the record as a whole, that the trial court’s decision was arbitrary and
unreasonable or without reference to any guiding rules or principles. Patterson v.
Brist, 236 S.W.3d 238, 239–40 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d);
Turner, 47 S.W.3d at 763. We view the evidence in the light most favorable to the
trial court’s decision and indulge every legal presumption in favor of its judgment.
Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ
denied). The mere fact that 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 that an abuse of discretion has occurred. In re K.R.P., 80 S.W.3d
at 674.
Under an abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds of error, but are relevant factors in assessing whether the trial
50
court abused its discretion. Bush v. Bush, 336 S.W.3d 722, 729 (Tex. App.—
Houston [1st Dist.] 2010, no pet.); Stamper, 254 S.W.3d at 542. Review in this
context is two-pronged: a reviewing court determines whether the trial court (1) had
sufficient information on which to exercise its discretion and (2) erred in applying
its discretion. Stamper, 254 S.W.3d at 542; Zeifman v. Michels, 212 S.W.3d 582,
588 (Tex. App.—Austin 2006, pet. denied). Traditional sufficiency review comes
into play under the first prong. Stamper, 254 S.W.3d at 542; Zeifman, 212 S.W.3d
at 588.
To determine whether the evidence is factually sufficient to support the trial
court’s order, we must consider, weigh, and examine all of the evidence that supports
or contradicts the fact finder’s determination. See Plas–Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442, 445 (Tex. 1989); Mauldin v. Clements, 428 S.W.3d 247, 268 (Tex.
App.—Houston [1st Dist.] 2014, no pet.). We may set aside an order only if the
evidence supporting it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Mauldin, 428 S.W.3d at 268. When conducting a factual-sufficiency review,
we must not merely substitute our judgment for that of the fact finder. Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Mauldin, 428 S.W.3d
at 268. In a bench trial, the trial court, as the trier of fact, is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Hatteberg v.
51
Hatteberg, 933 S.W.2d 522, 530 (Tex. App.—Houston [1st Dist.] 1994, no writ).
The trial court may choose to believe some witnesses over others. Martinez v. Lopez,
No. 01-09-00951-CV, 2011 WL 2112806, at *3 (Tex. App.—Houston [1st Dist.]
May 26, 2011, no pet.) (mem. op.).
Once the evidence is reviewed in the proper sufficiency context under the first
prong, a reviewing court considers under the second prong whether the trial court
erred in applying its discretion because it made an unreasonable decision. Stamper,
254 S.W.3d at 542; see also Zeifman, 212 S.W.3d at 588 (“The appellate court then
proceeds to determine whether, based on the evidence, the trial court made a
reasonable decision, that is, that the court’s decision was neither arbitrary nor
unreasonable.”). A trial court does not abuse its discretion if some evidence supports
its decision. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston
[1st Dist.] 2007, no pet.).
Conservatorship of a child includes the day-to-day management of the child.
In re N.L.D., 412 S.W.3d 810, 816 (Tex. App.—Texarkana 2013, no pet.). Many
decisions must be made by a parent or conservator on behalf of a child. Id.
Sometimes more than one person shares these duties, particularly when both parents
are named as joint managing conservators. Id. When the trial court appoints joint
managing conservators, it must name the conservator who has the exclusive right to
designate the primary residence of the child. TEX. FAM. CODE ANN. § 153.134; see
52
also Smith v. Payandeh, No. 01-18-00463-CV, 2019 WL 2528197, at *5 (Tex.
App.—Houston [1st Dist.] June 20, 2019, no pet.) (mem. op.).
A trial court may modify a conservatorship order if modification would be in
the child’s best interest and “the circumstances of the child, a conservator, or other
party affected by the order have materially and substantially changed” since the
previous order. TEX. FAM. CODE ANN. § 156.101(a)(1); Mauldin, 428 S.W.3d at
268–69. The party seeking modification has the burden to establish these elements
by a preponderance of the evidence. Epps v. Deboise, 537 S.W.3d 238, 245 (Tex.
App.—Houston [1st Dist.] 2017, no pet.); Zeifman, 212 S.W.3d at 589.
A. Material and Substantial Change
In a portion of her second issue, Katie argues that the evidence is factually
insufficient to support the trial court’s finding that there had been a material and
substantial change warranting modification since the 2012 order establishing
conservatorship, possession, or access because the “stressors that [previously]
overwhelmed” Katie had been resolved, “[a]ny positive changes C.N. [has]
experienced” are due to the adjustment of his ADHD medication and are not
connected to Daron, and Daron’s circumstances have gotten worse.
As previously noted, a trial court may modify a conservatorship order if, inter
alia, “the circumstances of the child, a conservator, or other party affected by the
order have materially and substantially changed” since the previous order. TEX.
53
FAM. CODE ANN. § 156.101(a)(1). The change-in-circumstances requirement is a
threshold issue for the trial court and is based on a policy of preventing constant
re-litigation with respect to a child. Smith v. Karanja, 546 S.W.3d 734, 738 (Tex.
App.—Houston [1st Dist.] 2018, no pet.); see also In re A.L.E., 279 S.W.3d 424,
428 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Zeifman, 212 S.W.3d at 595
(“The requirement of this showing serves a valid purpose of significantly limiting
the trial [court’s] discretion and prevents the modification statute from being
unconstitutionally broad.” (internal quotations omitted)).
In deciding whether a material and substantial change of circumstances has
occurred, a fact finder is not confined to rigid or definite guidelines; instead, the
determination is fact specific and must be made according to the circumstances as
they arise. See In re H.C.C., No. 01-16-00876-CV, 2017 WL 6520228, at *9 (Tex.
App.—Houston [1st Dist.] Dec. 21, 2017, no pet.) (mem. op.); Arredondo v.
Betancourt, 383 S.W.3d 730, 734–35 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). To demonstrate that a material and substantial change of circumstances has
occurred, the evidence must show the conditions that existed at the time of the entry
of the prior order as compared to the circumstances existing at the time of the trial
on the petition to modify. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas
2013, no pet.). One party’s allegation of a change of circumstances of the parties
constitutes a judicial admission of the common element of “change of
54
circumstances” in the other party’s similar pleading. In re A.E.A., 406 S.W.3d 404,
410 (Tex. App.—Fort Worth 2013, no pet.); In re L.C.L., 396 S.W.3d at 718.
Further, an admission in a trial court pleading constitutes a judicial admission in the
case in which the pleading was filed, requires no proof of the admitted fact, and
authorizes the introduction of no evidence to the contrary. In re A.E.A., 406 S.W.3d
at 410; In re L.C.L., 396 S.W.3d at 718; see also Holy Cross Church of God in Christ
v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (assertion of fact in party’s pleading can
constitute judicial admission that may substitute for evidence that has “conclusive
effect and bars the admitting party from later disputing the admitted fact”); Mendoza
v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).
Although Katie argues that the evidence is factually insufficient to support the
trial court’s finding that there had been a material and substantial change warranting
modification since the 2012 order establishing conservatorship, possession, or
access, Katie, in her Petition to Modify the Parent-Child Relationship, i.e., her live
pleading at the time of trial, alleged that “[t]he circumstances of the child, a
conservator, or other party affected by the order to be modified ha[d] materially and
substantially changed since the date of rendition of the order to be modified.” See
In re A.E.A., 406 S.W.3d at 410; In re L.C.L., 396 S.W.3d at 718. Similarly, Daron
in his Counter-Petition to Modify the Parent-Child Relationship, alleged that “[t]he
circumstances of the child, a conservator, or other party affected by the order to be
55
modified ha[d] materially and substantially changed since the date of rendition of
the order to be modified.” See In re A.E.A., 406 S.W.3d at 410; In re L.C.L., 396
S.W.3d at 718. Katie and Daron sought different relief in their petitions to modify
the parent-child relationship; however, their modification claims contained a
common essential element, i.e., each required proof of “change of circumstances.”
See In re A.E.A., 406 S.W.3d at 410; In re L.C.L., 396 S.W.3d at 718. Katie’s
allegation of a change of circumstances in her petition to modify constitutes a
judicial admission of that same essential element in Daron’s claim for modification
of the parent-child relationship even though the parties did not request the same
relief. See In re L.C.L., 396 S.W.3d at 718–19. And Katie is precluded from
asserting on appeal that the evidence is factually insufficient to support the trial
court’s finding that there had been a material and substantial change warranting
modification since the 2012 order establishing conservatorship, possession, or
access. See In re A.L.H., 515 S.W.3d 60, 81 n.5 (Tex. App.—Houston [14th Dist.]
2017, pet. denied) (appellate court must overrule sufficiency challenge where party
judicially admitted material and substantial circumstances had occurred in petition
to modify); Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236, at *5 (Tex.
App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) (“[W]ell-established case law
provid[es] that an allegation in a pleading of a material and substantial change
constitutes a judicial admission of the same element in the opposing party’s claim
56
for modification of the previous order. . . . [And] [b]ecause [party] judicially
admitted th[e] element, she is barred on appeal from challenging the sufficiency of
the evidence to support it.” (internal citations omitted)); In re A.E.A., 406 S.W.3d at
410–11 (because party judicially admitted changed-of-circumstances element of
other party’s claim in his petition to modify, party barred on appeal from challenging
sufficiency of evidence to support material and substantial change in circumstances).
We overrule this portion of Katie’s second issue.
B. Best Interest of Child
In a portion of her second issue, Katie argues that the evidence is factually
insufficient to support the trial court’s finding that modifying the existing order in a
suit affecting the parent-child relationship and naming Daron as the joint managing
conservator with the exclusive right to designate C.N.’s primary residence is in the
best interest of C.N. because C.N. wants to live with Katie, C.N. struggles
academically and behaviorally, C.N.’s ADHD medication is the reason for any
improvements with C.N.’s academics and behavior, Katie helps C.N. with his
homework, C.N. does not attend counseling sessions with Everitt while he lives with
Daron, Katie is married now and has lived in the same home since summer 2016,
Daron’s home is “a fearful place” for C.N., Daron’s acts and omissions indicate that
the relationship between him and C.N. is not proper, C.N. is afraid of Daron, Katie
is capable of taking care of C.N. and Z.O., and Katie’s relationship with Erich has
57
improved which has “tak[en] away a lot of the stress that was [previously] in [her]
home.”
The primary consideration in determining issues of conservatorship and
possession of and access to a child is always the child’s best interest. TEX. FAM.
CODE ANN. § 153.002; In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2008); In re K.R.P.,
80 S.W.3d at 674; see also Smith, 2019 WL 2528197, at *5 (best interest of child
primary consideration when determining which joint conservator will have exclusive
right to designate primary residence of child). It is presumed that the prompt and
permanent placement of a child in a safe environment is in his best interest. TEX.
FAM. CODE ANN. § 263.307(a); Monroe v. Alternatives in Motion, 234 S.W.3d 56,
66–67 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In determining the best interest of a child, we may consider the following
non-exhaustive list of factors, including: (1) the child’s desires; (2) the current and
future physical and emotional needs of the child; (3) the current and future emotional
and physical danger to the child; (4) the parental abilities of the parties seeking
custody of the child; (5) whether programs are available to assist those parties to
promote the best interest of the child; (6) plans for the child by the parties seeking
custody; (7) the stability of the proposed placement; (8) the parent’s acts or
omissions that may indicate that the parent-child relationship is not proper; and
(9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d
58
367, 371–72 (Tex. 1976); Epps, 537 S.W.3d at 247; In re Marriage of Bertram, 981
S.W.2d 820, 822–23 (Tex. App.—Texarkana 1998, no pet.). We may also consider
the statutory factors set forth in Texas Family Code section 263.307. See TEX. FAM.
CODE ANN. § 263.307; Rolle v. Hardy, 527 S.W.3d 405, 419 (Tex. App.—Houston
[1st Dist.] 2017, no pet.); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
Proof of best interest is not limited to these factors, nor do all factors always
apply in every case. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re P.H.R., No.
01-14-00101-CV, 2014 WL 7474207, at *5 (Tex. App.—Houston [1st Dist.] Dec.
30, 2014, no pet.) (mem. op.). Further, the presence of a single factor may, in some
instances, be adequate to support a best-interest finding. M.C. v. Tex. Dep’t of
Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet.
denied); see also Smith, 2019 WL 2528197, at *6. The trial court is in the best
position to observe the witnesses and their demeanor and, therefore, is given great
latitude in determining the best interest of the child. In re S.N.Z., 421 S.W.3d 899,
909 (Tex. App.—Dallas 2014, pet. denied); see also Zeifman, 212 S.W.3d at 587
(trial court is vested with discretion because it is best able to observe witnesses’
demeanor and personalities); Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.—
San Antonio 1951, no writ) (trial court “faces the parties and the witnesses, observes
59
their demeanor and personality, and feels the forces, powers, and influences that
cannot be discerned by merely reading the record”).
Katie asserts that the evidence is factually insufficient to support the trial
court’s finding that modifying the 2012 order in a suit affecting the parent-child
relationship and naming Daron as the joint managing conservator with the exclusive
right to designate C.N.’s primary residence is in the best interest of C.N. However,
the following evidence was presented at trial and supports the trial court’s finding.
C.N., who suffers from severe ADHD, requires structure, stability, and a
“home environment that is free [from] significant parenting failures.” Daron owns
a trucking company and is self-employed. See Smith, 2019 WL 2528197, at *6
(parent employed). Although Daron does travel for work, he has made arrangements
so that he is no longer required to travel as frequently. He also lives with his wife,
Danielle, in a house in the country. See In re S.G.C.-G., No. 05-18-00223-CV, 2019
WL 1856621, at *7 (Tex. App.—Dallas Apr. 25, 2019, no pet.) (mem. op.) (parent
in stable relationship); E.T.-M., 2019 WL 988222, at *3 (parent provided stable
home for child). Danielle is employed in the field of “on-line project management
software.” And there is no evidence that Daron and Danielle have an abusive
relationship or that there is domestic violence in the home. Daron does not use
narcotics and does not abuse alcohol or prescription medication.
60
C.N. has been living primarily with Daron and Danielle since spring 2016.
Daron and Danielle were expecting a baby at the time of trial, which C.N. was
excited about. Danielle did not have any concerns about being able to parent C.N.
and a baby at the same time.
While living primarily with Daron, C.N. completes daily chores, which
include feeding the family’s animals, cleaning his room, making his bed, and
sweeping the floor. See In re S.G.C.-G., 2019 WL 1856621, at *7 (child taught skills
in home and had become more responsible while living with parent). On a typical
school day, C.N. “gets up to his alarm” that he has set for himself and gets ready for
school. He then takes his ADHD medication, “feed[s] his heifer,” “let[s] the
chickens out,” and goes to school. After school, he attends the “Boys & Girls Club,”
goes home, and starts working on his homework while Danielle cooks dinner. After
dinner, C.N. showers and goes to bed.
C.N.’s demeanor in Daron’s home is “[g]ood” and “[a]mazing,” and he is
respectful. While in Daron’s care, C.N. has appeared smiling, happy, relaxed, and
carefree. See In re S.G.C.-G., 2019 WL 1856621, at *7 (child happy in home with
parent). And he has become “pretty much independent.” According to Daron, C.N.
likes living with him, appreciates the structure, and “has everything at [Daron’s]
house.” Daron’s home is fully furnished, is stocked with food, has working utilities,
and is “free from unsanitary or otherwise inappropriate living conditions.” E.T.-M.,
61
2019 WL 988222, at *3 (parent meeting child’s needs). Daron and C.N. like to go
“trucking” and hunting together; they are “always together.” See Strong v. Strong,
350 S.W.3d 759, 767–68 (Tex. App.—Dallas 2011, pet. denied) (parent and child
engaged in activities together). C.N. does not exhibit fear or anxiety when he is in
Daron’s home.
While C.N. has been living primarily with Daron, both Daron and Danielle
have ensured that C.N. takes his ADHD medication. C.N. “always” takes his
medication when he is at Daron’s house. Daron also has paid for C.N.’s medical
insurance since C.N.’s birth and plans to continue to pay for it. Danielle attends
C.N.’s medical appointments. Daron and C.N. have attended some counseling
sessions together since C.N. began living primarily with Daron. And Daron has
attended individual counseling sessions. At the time of trial, C.N. was current on
his medical checkups and immunizations.
In regard to C.N.’s interests, Daron was involved in C.N.’s extracurricular
activities both before and after C.N. began living primarily with him. Daron attends
C.N.’s football and basketball games when he is not working, and Danielle has
attended all of C.N.’s basketball games. While C.N. has been living primarily with
Daron, Daron has enrolled him in football and basketball, and C.N. plans to show a
heifer. See In re Marriage of Hall Oller, No. 12-18-00109-CV, 2019 WL 968527,
at *3–5 (Tex. App.—Tyler Feb. 28, 2019, no pet.) (mem. op.) (parent involved in
62
child’s activities); Strong, 350 S.W.3d at 767–68. Danielle takes C.N. to “4-H
events” and meetings.
Related to school, Daron and Danielle both help C.N. with his homework, and
Daron has been “concentrating on [C.N.’s] grades” since C.N. began living primarily
with him. See Strong, 350 S.W.3d at 767–68 (parent helped child with homework
and worked with child to improve grades). Danielle has also helped C.N. with his
reading, and C.N.’s reading level has improved while he has been living primarily
with Daron. Additionally, C.N.’s grades have improved, he has been more focused
in class, and he has been better behaved in class. C.N. also completes his homework
more often. See E.T.-M., 2019 WL 988222, at *3 (child doing well in parent’s care);
In re Marriage of Hall Oller, 2019 WL 968527, at *3–5 (child progressing in school
while living with parent). If C.N. ever has an issue at school, Daron is notified, and
C.N.’s teachers have spoken to Daron on the telephone when they have needed help
redirecting C.N.’s behavior. While living primarily with Daron, C.N. has arrived at
school dressed appropriately and clean, and C.N. has not been excessively absent
from class. When C.N. began exhibiting behavioral issues more frequently at
school, Daron and Danielle “sat down with him and . . . made a behavior plan” for
C.N. to follow for school, “like go sit down, face forward, don’t talk to kids and
between classes go straight to [his next] class.” The behavior plan is taped on the
63
wall in C.N.’s bedroom, and the purpose of the behavior plan is for C.N. “to start
trying to figure out on his own what he needs to be doing.”
Further, Daron and Danielle have both attended school functions and
meetings. And Danielle has exchanged email correspondence with C.N.’s teacher
and sat in the classroom when C.N. has had behavioral issues. Daron appears to be
interested in C.N.’s well-being at school, and both Daron and Danielle have met with
C.N.’s special education counselor to discuss goals for C.N. See In re Marriage of
Hall Oller, 2019 WL 968527, at *3–5 (parent involved in child’s education).
In regard to discipline, Daron disciplines C.N. by “taking his [video] games
away” and not allowing C.N. “to ride the Ranger.”20 In other words, Daron takes
away certain privileges from C.N. in order to redirect his behavior. Occasionally,
C.N. runs laps as a form of discipline so that he can “get a little extra
workout . . . instead of just going to sit in his room.” Danielle has not seen Daron
use “unnecessary measures to discipline” C.N.
In Daron’s opinion, he and C.N. have a bond and C.N. is also bonded with
Danielle. C.N. has a good relationship with both Daron and Danielle, and C.N.
respects Danielle. See In re S.G.C.-G., 2019 WL 1856621, at *7 (child had good
relationship with step-parent also living in home); Ceniseros v. Rychlik, No.
03-17-00532-CV, 2018 WL 4265679, at *5–6 (Tex. App.—Dallas Sept. 7, 2018, no
20
The “Ranger” is an “ATV” that C.N. is allowed to ride on Daron’s property.
64
pet.) (mem. op.) (step-parent assists in caring for children and gets along with
children). Several witnesses noted that they did not have concerns that C.N. was
being abused by Daron or in Daron’s home and that C.N. did not appear to be afraid
of Daron. A CPS investigation concluded that “there was no abuse or neglect” of
C.N. occurring.
Katie argues that naming Daron as the joint managing conservator with the
exclusive right to designate C.N.’s primary residence is not in the best interest of
C.N. because C.N. wants to live with Katie, C.N. was “traumatized [as a] child[]
partly because of the domestic violence [that] he had seen between Katie and
Daron,” Daron verbally abuses C.N., C.N.’s ADHD medication is the reason for any
improvements with C.N.’s academics and behavior, Katie helps C.N. with his
homework, Daron does not help with C.N.’s homework very often, Daron travels
for work a lot, C.N. has not frequently attended counseling sessions while living
primarily with Daron, Katie is married now and has lived in the same home since
summer 2016, Daron’s home is “a fearful place” for C.N., Daron’s acts and
omissions indicate that the relationship between him and C.N. is not proper, C.N. is
afraid of Daron and appears stressed when he is about to see Daron, Katie is capable
of taking care of C.N. and Z.O., and Katie’s relationship with Erich has improved
which has “tak[en] away a lot of the stress that was [previously] in [her] home.”
65
The trial court heard evidence that neither Katie nor Daron is the perfect
parent and that they both have had lapses in their parenting judgments and abilities.
See In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.—San Antonio 1997, writ
denied) (parent, although not perfect, may still be “a fit . . . parent”). Notably, in a
bench trial, the trial court, as the trier of fact, is the sole judge of the credibility of
the witnesses, assigns the weight to be given their testimony, and may accept or
reject all or any part of their testimony. Jordan v. Dossey, 325 S.W.3d 700, 713
(Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also Townsend v. Vasquez,
569 S.W.3d 796, 810–11 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)
(because trial court sole judge of witness credibility in bench trial, court entitled to
believe or not believe evidence that child was afraid of parent); Ceniseros, 2018 WL
4265679, at *6 (“Conservatorship determinations are intensely fact driven, and the
trial court is in the best position to judge the credibility of the witnesses and the
weight to be given their testimony.”); In re De La Pena, 999 S.W.2d 521, 529 (Tex.
App.—El Paso 1999, no pet.) (given the nature of custody disputes, “[a]ppellate
courts routinely defer to the fact finder at trial concerning matters of credibility and
demeanor” because “in no other type of litigation is it more critical”). The trial court
is best able “to observe the demeanor and personalities of the witnesses and [to]
‘feel’ the forces, powers, and influences that cannot be discerned by merely reading
the record.” Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no
66
pet.); see also Ziefman, 212 S.W.3d at 587 (trial court is “wisely vested
with . . . discretion” regarding modification of conservatorship because it “is best
able to observe the witnesses’ demeanor and personalities”); In re De La Pena, 999
S.W.2d at 529 (“The child’s behavior, experiences, fears, joys, and significant
attachments will be conveyed through pictures and through the words
of . . . witnesses[] . . . . The individuals vying for conservatorship may be
scrutinized by the fact finder for such intangible signs as an animated smile when
describing a child’s achievements, a furrowed brow when explaining typical
affectionate concern, or even tears when anticipating the emotional impact the
outcome of litigation will have on a child.”).
Further, when there is conflicting evidence presented at trial it is the province
of the fact finder to resolve such conflicts. Jordan, 325 S.W.3d at 713. In every
circumstance in which a reasonable trier of fact could resolve conflicting evidence
either way, the reviewing court must presume that it did so in favor of the prevailing
party. Jordan, 325 S.W.3d at 713; see also Ceniseros, 2018 WL 4265679, at *3. It
is not within the province of this Court to interfere with the fact finder’s resolution
of conflicts in the evidence. In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 81
(Tex. App.—San Antonio 2011, pet. denied); see also In re J.H.C., No.
11-17-00187-CV, 2019 WL 2557542, at *8 (Tex. App.—Eastland June 20, 2019, no
pet.) (mem. op.) (“We recognize that there was also evidence that [other parent]
67
loved the children, that they loved him, and that [parent] was a good
[parent]. . . . However, it was the role of the trial court to resolve the conflicts in the
evidence . . . .”).
Finally, we note that although the trial court’s interview with C.N. was not
recorded, the trial court was aware of C.N.’s desires when it found that naming
Daron as the joint managing conservator with the exclusive right to designate C.N.’s
primary residence is in the best interest of C.N. See In re K.K.R., No.
04-18-00250-CV, 2019 WL 451761, at *5 (Tex. App.—San Antonio Feb. 6, 2019,
no pet.) (mem. op.). And where we only have a partial record of the trial
proceedings, we presume that the omitted portions support the trial court’s ruling.
See Long v. Long, 144 S.W.3d 64, 69 (Tex. App.—El Paso 2004, no pet.) (where
trial court interviewed children in chambers, but no record of conversation was
made, appellate court “must presume facts existed that allowed the trial [court] to
find that a change in the [children’s] primary residence was in their best interest”);
Voros v. Turnage, 856 S.W.2d 759, 762–63 (Tex. App.—Houston [1st Dist.] 1993,
writ denied) (where complaining party failed to request a record of a child’s
interview, reviewing court will presume evidence from interview supports trial
court’s findings). Further, even if a minor child has expressed a desire to live with
a specific parent, the ultimate decision of which parent should be named as the joint
managing conservator with the exclusive right to designate the child’s primary
68
residence is left in the sound discretion of the trial court. See In re Bennett, No.
12-18-00149-CV, 2018 WL 4199995, at *4 (Tex. App.—Tyler Aug. 31, 2018, orig.
proceeding [mand. denied]); Echols, 85 S.W.3d at 477.
Based on the foregoing and after considering all of the evidence, we conclude
that the evidence is factually sufficient to support the trial court’s finding that
modifying the existing order in a suit affecting the parent-child relationship and
naming Daron as the joint managing conservator with the exclusive right to
designate C.N.’s primary residence is in the best interest of C.N.
We overrule this portion of Katie’s second issue.
Further, we hold that the record contains sufficient evidence for the trial court
to have exercised its discretion to appoint Daron as the joint managing conservator
with the exclusive right to designate C.N.’s primary residence, and the trial court’s
decision was reasonable. See Strong, 350 S.W.3d at 764–68 (holding, although
some evidence favored one parent, there was evidence sufficient to support award
of primary custody to other parent).
Guardian Ad Litem
In her first issue, Katie argues that the trial court erred in relying on Kenjura’s
testimony and her guardian ad litem report because she, as a guardian ad litem, did
not properly discharge her duties as set forth in Texas Family Code section 107.002.
See TEX. FAM. CODE ANN. § 107.002.
69
Texas Family Code section 107.002, titled “Powers and Duties of Guardian
ad Litem for Child,” provides, in part:
(a) A guardian ad litem appointed for a child under this chapter is
not a party to the suit but may:
(1) conduct an investigation to the extent that the guardian ad
litem considers necessary to determine the best interests of the
child; . . .
....
(b) A guardian ad litem appointed for the child under this chapter
shall:
(1) within a reasonable time after the appointment, interview:
(A) the child in a developmentally appropriate manner,
if the child is four years of age or older;
(B) each person who has significant knowledge of the
child’s history and condition, including educators, child
welfare service providers, and any foster parent of the
child; and
(C) the parties to the suit;
(2) seek to elicit in a developmentally appropriate manner the
child’s expressed objectives;
(3) consider the child’s expressed objectives without being
bound by those objectives;
....
(5) perform any specific task directed by the court.
....
70
(c) A guardian ad litem appointed for the child under this chapter is
entitled to:
(1) receive a copy of each pleading or other paper filed with
the court in the case in which the guardian ad litem is appointed;
(2) receive notice of each hearing in the case;
....
(4) attend all legal proceedings in the case but may not call or
question a witness or otherwise provide legal services unless the
guardian ad litem is a licensed attorney who has been appointed
in the dual role;
(5) review and sign, or decline to sign, an agreed order
affecting the child;
(6) explain the basis for the guardian ad litem’s opposition to
the agreed order if the guardian ad litem does not agree to the
terms of a proposed order;
(7) have access to the child in the child’s placement; [and]
(8) be consulted and provide comments on decisions
regarding placement . . . [.]
....
(e) Unless the guardian ad litem is an attorney who has been
appointed in the dual role and subject to the Texas Rules of Evidence,
the court shall ensure in a hearing or in a trial on the merits that a
guardian ad litem has an opportunity to testify regarding, and is
permitted to submit a report regarding, the guardian ad litem’s
recommendations relating to:
(1) the best interests of the child; and
(2) the bases for the guardian ad litem’s recommendations.
71
See id. § 107.002(a), (b), (c), (e).
Here, Katie argues that Kenjura did not properly discharge her duties as a
guardian ad litem because she examined witnesses at trial, did not have “a
substantive conversation with . . . Everitt, C.N.’s counselor of seven years, prior to
filing her report” with the trial court, relied too heavily on the observations of C.N.’s
teachers and school counselor, and was not diligent in her questioning of C.N.
(Emphasis omitted.)
To the extent that Katie complains on appeal that Kenjura improperly
questioned witnesses at trial,21 Kenjura, on at least fifteen occasions during trial,
questioned witnesses without objection from any party. To preserve a complaint for
appellate review, the record must show that the complaint was made to the trial court
by a timely request, objection, or motion and the trial court either ruled on the party’s
request, objection, or motion, or refused to rule, and the party objected to that refusal.
TEX. R. APP. P. 33.1(a). If a party fails to do this, error is not preserved, and the
complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); see also
21
See TEX. FAM. CODE ANN. § 107.002(c)(4) (“A guardian ad litem appointed for the
child . . . is entitled to . . . attend all legal proceedings in the case but may not call
or question a witness or otherwise provide legal services unless the guardian ad
litem is a licensed attorney who has been appointed in the dual role.” (emphasis
added)); Goodyear Dunlop Tires N. Am., Ltd v. Gamez, 151 S.W.3d 574, 583 n.7
(Tex. App.—San Antonio 2004, no pet.) (differentiating between amicus attorneys,
attorneys ad litem, and guardians ad litem in suits affecting the parent-child
relationship).
72
Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (by
failing to object, party did not preserve error that opposing party improperly
cross-examined witness).
Further, at trial, Katie’s counsel specifically stated, in regard to Kenjura’s
ability to question witnesses at trial: “I mean, she can ask questions. . . . A guardian
ad litem often doesn’t. But she has a right to ask questions.” A party may not
complain on appeal of error that she has invited. See Ramirez v. State, 973 S.W.2d
388, 392 (Tex. App.—El Paso 1998, no pet.); Evans v. Covington, 795 S.W.2d 806,
809 (Tex. App.—Texarkana 1990, no writ); see also Tittizer v. Union Gas Corp.,
171 S.W.3d 857, 861–62 (Tex. 2005); Kelly v. Cunningham, 848 S.W.2d 370, 371
(Tex. App.—Houston [1st Dist.] 1993, no writ) (“A party may not lead a trial court
into error and then complain about it on appeal.”).
Accordingly, we hold that Katie did not preserve for our review her complaint
that the trial court erred in relying on Kenjura’s testimony and her guardian ad litem
report because Kenjura did not properly discharge her duties as a guardian ad litem
by examining witnesses at trial. See TEX. FAM. CODE ANN. § 107.002(c)(4).
In regard to her complaint on appeal that Kenjura did not speak to Everitt prior
to submitting her guardian ad litem report to the trial court, at trial, when the court
was presented with Katie’s concern that Kenjura did not speak to Everitt in
connection with the guardian ad litem report, Katie’s counsel stated:
73
[A]lthough it’s regrettable, . . . I would suggest [that the trial court]
direct [Kenjura] to visit with . . . Everitt in the jury room and she can
learn more.
....
I would just suggest . . . to direct [Kenjura] to talk to . . . Everitt in the
privacy of the jury room, which she can do, clearly she has the authority
to do that, and see if she can ascertain the concerns that she has that we
want to put up here in front of the [trial court].
....
And I wasn’t trying to cast aspersions on . . . Kenjura. All I am saying
is it’s just regrettable the contact didn’t happen. I mean, that’s all I’m
saying. So, I just suggest [that] we take a short . . . break and let
[Kenjura] talk to [Everitt].
The parties, Kenjura, and the trial court agreed at trial to have Kenjura and
Everitt speak during a break. Katie did not object to Kenjura’s failure to speak with
Everitt before submitting her guardian ad litem report to the trial court, and Katie is
the party who actually requested that Kenjura and Everitt speak separately at trial.
See TEX. R. APP. P. 33.1(a); Bushell, 803 S.W.2d at 712; see also Neasbitt v. Warren,
22 S.W.3d 107, 112 (Tex. App.—Fort Worth 2000, no pet.) (“It is elementary that a
party may not ‘invite’ error by requesting that the trial court take [a] specific action
and then complain on appeal that the trial court erred in granting the request.”);
Kelly, 848 S.W.2d at 371. Moreover, Katie actually offered Kenjura’s guardian ad
litem report, Movant’s Exhibit 53, into evidence at trial, which the trial court then
admitted without objection. See In re M.E.C., 66 S.W.3d 449, 455–56 (Tex. App.—
74
Waco 2001, no pet.) (because party offered exhibits into evidence, he could not
complain that their admission was erroneous); see also Kelly, 848 S.W.2d at 371;
Evans, 795 S.W.2d at 808–09. And any complaint by Katie that the trial court erred
in relying on Kenjura’s testimony and her guardian ad litem report because she did
not speak to Everitt until after trial had begun, goes to the weight of the evidence,
not to the admissibility of Kenjura’s testimony or report. See In re J.H.M., No.
07-07-0109-CV, 2009 WL 5174364, at *14 (Tex. App.—Amarillo Dec. 29, 2009,
no pet.) (mem. op.). In a bench trial, the trial court, as the trier of fact, is the sole
judge of the weight and credibility of the evidence. See In re F.M. III, No.
04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017,
no pet.) (mem. op.); Hatteberg, 933 S.W.2d at 530. And Katie was given an
opportunity to question Kenjura as to why she did not consult with Everitt when
Katie called Kenjura as a witness at trial.22
Based on the foregoing, we hold that Katie did not preserve for our review, or
may not raise on appeal, her complaint that the trial court erred in relying on
Kenjura’s testimony and her guardian ad litem report because Kenjura did not have
“a substantive conversation with . . . Everitt, C.N.’s counselor of seven years, prior
22
Katie also called Everitt to testify at trial; thus, the trial court had before it Everitt’s
testimony when it modified the 2012 order, appointed Katie and Daron as joint
managing conservators, and named Daron as the joint managing conservator with
the exclusive right to designate the primary residence of C.N.
75
to filing her report” with the trial court. (Emphasis omitted.) Further, to the extent
that Katie may raise her complaint on appeal, we hold that the trial court did not err
in relying on Kenjura’s testimony and her guardian ad litem report even if Kenjura
did not have “a substantive conversation with . . . Everitt, C.N.’s counselor of seven
years, prior to filing her report” with the trial court. (Emphasis omitted.)
Katie next complains that Kenjura, in recommending that Daron have the
exclusive right to designate the primary residence of C.N., relied too heavily on the
observations of C.N.’s teachers and school counselor and was not diligent in her
questioning of C.N. Texas Family Code section 107.002 provides that a guardian
ad litem may conduct an investigation to the extent that she considers necessary to
determine the best interest of the child. See TEX. FAM. CODE ANN. § 107.002(a).
Further, the guardian ad litem, “within a reasonable time after being appointed,”
shall interview “the child in a developmentally appropriate manner, if the child is
four years of age or older,” “each person who has significant knowledge of the
child’s history and condition, including educators,” and “the parties to the suit.” See
id. § 107.002(b).
In her guardian ad litem report, which Katie offered into evidence at trial and
the trial court admitted without objection, Kenjura stated that she interviewed C.N.,
Katie, Erich, Daron, Danielle, Katie’s parents, House, Rooker, Still, Kwiatkowski,
76
Murphy, and Perry.23 Further, Kenjura’s time sheet, also offered into evidence by
Katie at trial and admitted by the trial court without objection, indicates that Kenjura
met with or spoke with the above listed individuals and the length of each of her
interviews. At trial, Kenjura testified that she met with C.N. “[a]t least four [times],”
for a total of approximately four or five hours. She also confirmed that she had
“some kind of conversation . . . either in person or by telephone . . . about [C.N.] and
how he[] [was] doing” with the individuals listed on her report.
Even a guardian ad litem who does not follow all of the requirements as set
out in Texas Family Code section 107.002 is not prohibited from giving her opinion
either through oral testimony or a guardian ad litem report regarding the best interest
of the child. See In re J.H.M., 2009 WL 5174364, at *14. Here, Kenjura conducted
an investigation to the extent that she considered necessary to determine the best
interest of C.N., and in doing so, she interviewed C.N., persons with “significant
knowledge of [C.N.’s] history and condition, including educators,” and Katie and
Daron. See TEX. FAM. CODE ANN. § 107.002(b). Kenjura stated in her guardian ad
litem report that she, “[b]ased on the information provided and [her] investigation,”
believed that it was in the best interest of C.N. for Katie and Daron to be named joint
23
Although Kenjura’s report also stated that she contacted Everitt “to determine what
[was] in the best interest of C.N.,” it is undisputed that Kenjura did not speak to
Everitt prior to trial. Kenjura did testify that she read Everitt’s prior testimony in
the case before trial and before filing her report with the trial court.
77
managing conservators and for Daron to have the exclusive right to designate the
primary residence of C.N. Although Kenjura based her recommendation, in part, on
her conversations with C.N.’s teachers and school counselor, she specifically stated
that her opinion was not solely based on those conversations. Further, Kenjura
indicates that “[i]n all of [her] conversations with C.N.,” he never indicated that he
was “fearful or worried of harm in the residence of [Daron].”
To the extent that Katie asserts that Kenjura relied too heavily on the
observations of C.N.’s teachers and school counselor and was not diligent in her
questioning of C.N., her complaints go to the weight of the evidence, rather than to
the admissibility of Kenjura’s testimony or her guardian ad litem report. See In re
J.H.M., 2009 WL 5174364, at *14. In a bench trial, the trial court, as the trier of
fact, is the sole judge of the weight and credibility of the evidence. See In re F.M.
III, 2017 WL 393610, at *4; Hatteberg, 933 S.W.2d at 530. Accordingly, we hold
that the trial court did not err in relying on Kenjura’s testimony and her guardian ad
litem report because she purportedly relied too heavily on the observations of C.N.’s
teachers and school counselor and was not diligent in her questioning of C.N.
We overrule Katie’s first issue.
Disclosure of Identity
In her third issue, Katie argues that the trial court erred in failing to disclose
its identity when conferring with C.N. because C.N. was not given an opportunity to
78
“express[] his opinions, beliefs, and fears” to the trial court, as he did not know to
whom he was speaking when the trial court met with him. Thus, C.N. could not give
his honest opinion or be forthcoming with the trial court. See TEX. FAM. CODE ANN.
§ 153.009.
As previously noted, there is not a record of the trial court’s interview with
C.N. because none was requested. See id. § 153.009(f) (“On motion of a party, the
amicus attorney, or the attorney ad litem for the child, or on the court’s own motion,
the court shall cause a record of the interview to be made when the child is 12 years
of age or older.”). To support her position that the trial court did not disclose its
identity to C.N., Katie directs this Court to statements made by the trial court and
Kenjura at a non-evidentiary status hearing after the trial court had entered its order
modifying the 2012 order in a suit affecting the parent-child relationship. However,
for purposes of this opinion, we will presume that the trial court did not disclose its
identity to C.N. when interviewing him pursuant to Texas Family Code section
153.009. See id. § 153.009(a).
Texas Family Code section 153.009, titled “Interview of Child in Chambers,”
provides, in part:
In a nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child, the court shall
interview in chambers a child 12 years of age or older and 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 [designate] the child’s primary residence.
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Id. § 153.009(a). Further, section 153.009(b) states:
In a nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child or on the court’s
own motion, the court may interview the child in chambers to determine
the child’s wishes as to possession, access, or any other issue in the suit
affecting the parent-child relationship.
Id. § 153.009(b). Notably, the interviewing of a child does not diminish the trial
court’s discretion in determining the best interest of the child. Id. § 153.009(c); see
also In re Bennett, 2018 WL 4199995, at *4; Echols, 85 S.W.3d at 477.
Before trial, Katie filed a Motion for Judge to Confer with the Child, asserting
that C.N. was twelve years old and the issues of conservatorship, right to designate
the primary residence, and possession and access of C.N. were contested; thus, Katie
requested that the trial court confer with C.N. to determine his wishes as to the issues
listed above. Katie specifically requested that the interview not be recorded.
At the beginning of trial, Katie’s counsel, related to Katie’s motion to confer,
stated:
Given the child’s age, we think it’s required. It’s not discretionary.
. . . Kenjura has confirmed that [C.N.] loves both of his parents and it’s
a very stressful situation for him. And we think he probably wants to
please both parents and this is difficult for him.
We would like the [trial] [c]ourt to implement whatever measures [it]
deem[s] appropriate, . . . to put him in a comfortable atmosphere.
Although everybody wants a decision and sometime soon, certainly
before -- like this month or so, we will just leave it to [the court] to
determine whether to have him come here at the end of the testimony,
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but, also, if it’s possible for the [c]ourt to, huh, confer with [C.N.] in a
more comfortable environment. And we just kind of tossed out
something like having a milkshake at Must Be Heaven or something,
on a different day like if [the court] took it under advisement until [the
court] talk[s] to him, we would have no objection to it. We just want
to make sure [that C.N.] doesn’t feel intimidated or pressured and he
can just speak his heart.
And, so -- and, of course, this might be prematurely talking about this,
because we think it would be best for [the court] to talk to him after the
presentation of all the other evidence so [the court] can better frame any
issues [it] might have with the conversation with [C.N.].
(Emphasis added.)
Notably, Katie’s counsel specifically stated that Katie “would like the [trial]
[c]ourt to implement whatever measures [it] deem[ed] appropriate,” including
having the trial court interview C.N. outside of the courthouse to ensure that C.N.
was “in a comfortable atmosphere,” did not feel “intimidated or pressured,” and
could “speak his heart.” Throughout trial, Katie elicited testimony from numerous
witnesses regarding C.N.’s distrust and fear of the judges, attorneys, and the judicial
system in general based on his past experiences. And, at the conclusion of trial, the
court explained, regarding its meeting with C.N.:
Of course, his anxiety about judges has been testified to and
documented. So, what [the trial court is] looking for is kind of a
contravening [sic], you know, noncarious [sic] way to meet with him.
That’s what [the court] would like to do for his sake so he’s a lot more
comfortable talking to [the court]. And if he’s already got some rapport
with . . . Kenjura, [the court] was going to have her facilitate that
meeting. She doesn’t have to be present and involved in it, but [the
court] was going to have her facilitate the meeting to begin that
conversation.
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Katie raised no objection to the trial court’s plan for its interview with C.N.
As previously explained, a party may not complain of error which she has invited.
See Ramirez, 973 S.W.2d at 392; Evans, 795 S.W.2d at 809; see also Neasbitt, 22
S.W.3d at 112 (“It is elementary that a party may not ‘invite’ error by requesting that
the trial court take [a] specific action and then complain on appeal that the trial court
erred in granting the request.”); Kelly, 848 S.W.2d at 371 (“A party may not lead a
trial court into error and then complain about it on appeal.”).
Further, the trial court is given wide discretion in determining issues of
custody, control, possession, support, and visitation matters involving children.
Gillespie, 644 S.W.2d at 451; In re K.R.P., 80 S.W.3d at 674; Turner, 47 S.W.3d at
763; see also In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *1 (Tex.
App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.) (“In determining which
joint managing conservator will have the exclusive right to establish the primary
residence of the child[], the trial court is vested with broad discretion.”). This
discretion extends to and includes the trial court’s ability to determine how best to
conduct its interview of a child under Texas Family Code section 153.009(a). See
TEX. FAM. CODE ANN. § 153.009(c) (“Interviewing a child does not diminish the
discretion of the court in determining the best interests of the child.”), (e) (trial court
may permit attorney for party, amicus attorney, attorney ad litem, or guardian ad
litem to be present at interview); In re N.W., No. 02-12-00057-CV, 2013 WL
82
5302716, at *8–10 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.) (trial
court had discretion to deny request for interview because it was not filed until day
before final hearing); In re A.C., 387 S.W.3d 673, 676–78 (Tex. App.—Amarillo
2012, pet. denied) (noting trial court’s wide discretion in matters pertaining to
children, including its discretion to either take into account information learned at
interview or to ignore it entirely); In re C.B., 2012 WL 3139866, at *7 (“[I]n light
of the trial court’s statements that an interview in chambers would not assist the court
in making the decision based on what it had already heard, we conclude that the trial
court’s refusal to interview [the child] was consistent with the discretion recognized
in subsection (c) of [Texas] [F]amily [C]ode section 153.009.”); In re J.G.M., No.
9-11-00368-CV, 2012 WL 1951119, at *3 (Tex. App.—Beaumont May 13, 2012,
no pet.) (mem. op.) (trial court had discretion to deny request to interview child
where it determined motion untimely and made for purpose of delay); Davis v.
Davis, No. 13-01-707-CV, 2003 WL 21355239, at *4 (Tex. App.—Corpus Christi
June 12, 2003, no pet.) (mem. op.) (within trial court’s discretion to interview child
without first determining child’s competency). A trial court abuses its discretion
when it acts arbitrarily and unreasonably or without reference to any guiding rules
or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985); Patterson, 236 S.W.3d at 240; Turner, 47 S.W.3d at 763. Moreover,
an appellate court may not reverse for abuse of discretion merely because it disagrees
83
with a decision of the trial court, if that decision was within the trial court’s
discretionary authority. Downer, 701 S.W.2d at 242.
Although section 153.009(a) requires a trial court, on the application of a
party, to interview a child twelve years or older regarding the child’s wishes as to
the person who shall have the exclusive right to designate the child’s primary
residence, the only limitation that section 153.009(a) puts on the trial court in terms
of conducting that interview is that the court shall conduct the interview in
chambers.24 See TEX. FAM. CODE ANN. § 153.009(a); In re McPeak, 525 S.W.3d
310, 315–16 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also In re A.C.,
387 S.W.3d at 676–78 (“Nothing in the statute indicates that the child in such an
interview is to be sworn and nothing reflects that anything resembling the Texas
Rules of Evidence should apply during the interview.”). Katie has not directed this
Court to any provision in the Texas Family Code or to any Texas case law which
requires a trial court to disclose its identity to the child during its interview with the
child pursuant to section 153.009. The record does not demonstrate that the trial
court acted unreasonably, arbitrarily, or without regard for guiding rules or
principles by purportedly failing to disclose its identity when conferring with C.N.
24
Although the trial court did not interview C.N. in chambers, as required by Texas
Family Code 153.009(a), the parties agreed to have the court interview C.N. at a
different location. See TEX. FAM. CODE ANN. § 153.009(a). Katie does not
challenge on appeal the location of the trial court’s interview with C.N.
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Accordingly, we hold that the trial court did not err in failing to disclose its identity
when conferring with C.N.
We overrule Katie’s third issue.
Evidentiary Hearing
In her fourth issue, Katie argues that the trial court erred in denying an
evidentiary hearing related to her motion for new trial and denying her emergency
motion for an evidentiary hearing on her motion for new trial to present newly
discovered evidence because Katie discovered admissible and competent evidence
after trial entitling her to an evidentiary hearing.
Generally, whether to hold an evidentiary hearing on a motion for new trial in
a civil matter is within the trial court’s discretion. See Hamilton v. Pechacek, 319
S.W.3d 801, 807 (Tex. App.—Fort Worth 2010, no pet.); see also Emanuel v.
Citibank (S.D.), N.A., No. 01-10-00768-CV, 2011 WL 5429042, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.); Landis v. Landis, 307 S.W.3d
393, 394 (Tex. App.—San Antonio 2009, no pet.) (hearing on motion for new trial
generally not mandatory). A trial court is only required to conduct a hearing after it
is requested by a party and the motion for new trial presents a question of fact upon
which evidence must be heard, such as when a motion for new trial is based on newly
discovered evidence. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979);
Emanuel, 2011 WL 5429042, at *2; Olsen v. Comm’n of Lawyer Discipline, 347
85
S.W.3d 876, 887 (Tex. App.—Dallas 2011, pet. denied); J.L.L. v. State, No.
01-09-00808-CV, 2011 WL 1631915, at *13 (Tex. App.—Houston [1st Dist.] Apr.
28, 2011, no pet.) (mem. op.) (“In a civil case, a trial court is obligated to conduct a
hearing on a motion for new trial if (1) the motion properly requests a hearing, (2) the
motion presents a question of fact upon which evidence must be heard, and (3) the
motion alleges facts that if true would entitle the movant to a new trial.” (internal
quotations omitted)). To obtain a new trial based on newly discovered evidence,
the movant must show (1) that the evidence has come to her knowledge since the
trial; (2) that it was not owing to the want of due diligence that it did not come
sooner; (3) that it is not cumulative; and (4) that it is so material that it would
probably produce a different result if a new trial were granted. Jackson v. Van
Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled in part on other grounds by
Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003); Xenos Yuen v. Fisher, 227 S.W.3d
193, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Notably, a party seeking
a new trial based on newly discovered evidence must verify that the evidence is true
and correct. Xenos Yuen, 227 S.W.3d at 205; Raymond v. Raymond, 190 S.W.3d 77,
82 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial court does not abuse its
discretion in denying a motion for new trial based on newly discovered evidence
when it is not verified. Xenos Yuen, 227 S.W.3d at 205; Raymond, 190 S.W.3d at
82.
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A motion for new trial must be filed within thirty days after the trial court’s
judgment is signed. TEX. R. CIV. P. 329b(a); L.M. Healthcare, Inc. v. Childs, 929
S.W.2d 442, 443 (Tex. 1996). Under Texas Rule of Civil Procedure 329b, an
amended motion for new trial may be filed without leave of court before any
preceding motion for new trial is overruled and “within thirty days after the judgment
or other order complained of is signed.” TEX. R. CIV. P. 329b(b); see also Moritz,
121 S.W.3d at 719–20. An amended motion filed more than thirty days after the
trial court signs its judgment is untimely. Low v. Henry, 221 S.W.3d 609, 619 (Tex.
2007); Moritz, 121 S.W.3d at 719–20. An untimely amended motion for new trial
does not preserve issues for appellate review, even if the trial court considers and
denies the untimely motion within its plenary power period. Moritz, 121 S.W.3d at
720–21; Prasad v. Cap. Farm Credit, FLCA, No. 01-12-00585-CV, 2013 WL
3877666, at *2 (Tex. App.—Houston [1st Dist.] July 25, 2013, no pet.) (mem. op.)
(untimely amended motion for new trial “is a nullity for purposes of preserving
issues for appellate review” (internal quotations omitted)).
The trial court entered its judgment in this case on August 22, 2017. Katie
timely filed her Motion for New Trial, or Alternatively, Motion to Correct the Final
Order, on September 19, 2017. See TEX. R. CIV. P. 329b(a). Notably, Katie did not
assert in her motion that she was entitled to a new trial based on newly discovered
evidence and did not verify her motion. See Xenos Yuen, 227 S.W.3d at 205 (party
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seeking new trial based on newly discovered evidence must verify motion);
Raymond, 190 S.W.3d at 82. Rather, Katie asserted that the trial court should grant
a new trial because the court erred in “changing primary custody through
[t]emporary [o]rders signed on April 19, 2016”; “signing [f]inal [o]rders that did not
reflect the [t]rial [c]ourt’s letter ruling”; “relying on the [g]uardian [a]d [l]item’s
recommendation when the [t]rial [c]ourt knew that the [g]uardian [a]d [l]item did
not talk to [C.N.’s] counselor . . . [or] procure [and] review any of [the] counselor’s
notes before or during trial”; “ignoring the wishes of [C.N.] per section 153.009 of
the Texas Family Code”; “awarding primary custody to an abusive father who
testified that he would not co-parent”; and “awarding attorney[’s] fees to” Daron.
(Emphasis omitted.) Further, Katie did not request an evidentiary hearing in her
motion, and the allegations in her new-trial motion did not require the trial court to
conduct an evidentiary hearing. See Hensley, 583 S.W.2d at 618; H & H Wrecker
v. Koctar, No. 14-15-00311-CV, 2016 WL 3634258, at *2 (Tex. App.—Houston
[14th Dist.] July 7, 2016, no pet.) (mem. op.) (trial court does not err in not holding
evidentiary hearing where movant fails to request hearing in new-trial motion);
Olsen, 347 S.W.3d at 887; J.L.L., 2011 WL 1631915, at *13 (motion must properly
request hearing, present question of fact upon which evidence must be heard, and
allege facts that if true would entitle movant to new trial); Landis, 307 S.W.3d at
394; see also Emanuel, 2011 WL 5429042, at *2 (party not entitled to evidentiary
88
hearing on his complaint in new-trial motion because he failed to describe what
evidence, if any, he would have presented to trial court had hearing been held);
Hamilton, 319 S.W.3d at 807 (party not entitled to evidentiary hearing on new-trial
motion where he failed to identify any question upon which additional evidence was
required or to specify what evidence, if any, he would have presented to trial court
had evidentiary hearing been held). Accordingly, we hold that the trial court did not
err in failing to conduct an evidentiary hearing on Katie’s Motion for New Trial, or
Alternatively, Motion to Correct the Final Order.
On October 20, 2017, Katie, fifty-nine days after the trial court signed its
judgment, filed her verified Emergency Motion for Evidentiary Hearing on Motion
for New Trial to Present Newly Discovered Evidence. Katie stated that the motion
was filed to supplement her previously filed Motion for New Trial, or Alternatively,
Motion to Correct the Final Order, and Katie asserted that she had discovered
admissible and competent evidence after trial, the late discovery of the new evidence
was not due to a lack of diligence, the evidence could not have been discovered
sooner, Katie had no notice before trial that the evidence existed, the evidence was
not cumulative of other evidence, and the evidence is so material that it would
probably produce a different result. See Jackson, 660 S.W.2d at 809; Xenos Yuen,
227 S.W.3d at 204. Katie further requested an evidentiary hearing on her motion.
89
As previously explained, an amended motion for new trial may be filed
without leave of court before any preceding motion for new trial is overruled and
“within thirty days after the judgment or other order complained of is signed.” TEX.
R. CIV. P. 329b(b); see also Moritz, 121 S.W.3d at 719–20. Here, Katie filed her
Emergency Motion for Evidentiary Hearing on Motion for New Trial to Present
Newly Discovered Evidence to supplement her Motion for New Trial, or
Alternatively, Motion to Correct the Final Order previously filed on September 19,
2017. Although the trial court had not yet ruled on Katie’s original new-trial motion,
Katie’s amended new-trial motion was not filed within thirty days of the trial court’s
judgment and was thus untimely. Low, 221 S.W.3d at 619; Moritz, 121 S.W.3d at
719–20. Because an untimely amended motion for new trial is a nullity and a trial
court is not required to consider or otherwise hear an untimely new-trial motion, the
denial of an evidentiary hearing on an untimely amended motion for new trial cannot
be said to be error. See In re Brookshire Grocery Co., 250 S.W.3d 66, 69–70 (Tex.
2008); Moritz, 121 S.W.3d at 720–21; Prasad, 2013 WL 3877666, at *2; see also
Hernandez v. Saldivar, No. 04-15-00691-CV, 2016 WL 2584657, at *2 (Tex.
App.—San Antonio May 4, 2016, no pet.) (mem. op.) (trial court does not abuse its
discretion by ignoring untimely supplemental new-trial motion); Equinox Enters.,
Inc. v. Associated Media Inc., 730 S.W.2d 872, 875 (Tex. App.—Dallas 1987, no
writ); cf. Kiser v. State, 788 S.W.2d 909, 915 (Tex. App.—Dallas 1990, pet. ref’d)
90
(denial of hearing on motion for new trial not error where motion not timely filed).
The record does not indicate that the trial court ever ruled on or considered Katie’s
Emergency Motion for Evidentiary Hearing on Motion for New Trial to Present
Newly Discovered Evidence. Rather, on November 2, 2017, the trial court denied
Katie’s Motion for New Trial, or Alternatively, Motion to Correct the Final Order
previously filed on September 19, 2017.
Accordingly, we hold that the trial court did not err in failing to conduct an
evidentiary hearing on Katie’s Emergency Motion for Evidentiary Hearing on
Motion for New Trial to Present Newly Discovered Evidence.
We overrule Katie’s fourth issue.
Temporary Orders
In her fifth issue, Katie argues that the trial court erred in issuing temporary
orders because the ruling made by the trial court was illogical and self-contradictory.
Katie raises her fifth issue conditionally, i.e., Katie requests that this Court vacate
the trial court’s temporary orders signed on April 19, 2016 if we reverse the trial
court’s August 22, 2017 Order in Suit to Modify Parent-Child Relationship and
remand the case to the trial court. Due to our disposition of Katie’s other issues, we
need not reach Katie’s fifth issue. See TEX. R. APP. P. 47.1.
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Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Lloyd, Landau, and Countiss.
92