Erna Aletta Cox v. Kevin Stuart Cox ( 2023 )

Affirmed and Memorandum Opinion filed October 10, 2023
In The
Fourteenth Court of Appeals
NO. 14-22-00853-CV
ERNA ALETTA COX, Appellant
V.
KEVIN STUART COX, Appellee
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2015-42708
MEMORANDUM OPINION
Appellant Erna Aletta Cox (Mother) appeals the trial court’s order modifying
the parent-child relationship appointing her as possessory conservator of the
children. Mother contends, among other things, that the trial court lacked jurisdiction
and that the modified order was not in the best interest of the children. We affirm.
Background
In April 2018, the trial court signed the Agreed Order in Suit Affecting Parent-
Child Relationship (the 2018 Order). Mother and appellee Kevin Stuart Cox (Father)
were named joint managing conservators, and Mother was awarded the exclusive
right to designate the children’s primary residence within the Katy Independent
School District. In May 2020, Mother filed a petition to modify requesting, among
other things, that the geographic restriction expand to Harris County, counties
contiguous to Harris County, and the entire country of Australia. In June 2020,
Father filed a counterpetition requesting that he be awarded the exclusive right to
designate the primary residence of the children and that the court determine whether
there is a risk of international abduction of the children by Mother. In April 2021,
the trial court signed the Order in Suit to Modify Parent-Child Relationship (the 2021
Order). The 2021 Order found that the 2018 Order naming Mother and Father as
joint managing conservators was in the children’s best interest. The trial court
modified the guideline child support obligations but specifically denied Mother’s
request to alter the geographic restriction and Father’s request to be appointed the
conservator with the exclusive right to designate the primary residence.
In January 2022, Father filed an emergency petition to modify the 2018 Order
alleging that the circumstances of the children and a conservator had materially and
substantially changed. Father alleged that Mother had engaged in a history or pattern
of child abuse and requested that he be appointed sole managing conservator, or
alternatively, awarded the exclusive right to designate the primary residence of the
children. In his supporting declaration, Father alleged that Mother repeatedly told
him that she was “destitute of means” to provide for the children. Father believed
that Mother was intentionally creating “desperate circumstances . . . [to] force a
more desirable outcome.” As an example of Mother’s attempts to manipulate the
court proceedings, Father referenced false reports made by Mother to the
Department of Child Protective Services (CPS) accusing him of sexually abusing
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the children. Father further alleged that Mother was sabotaging his employment “by
sending repeated, harassing correspondence” to other employees and “posting
factually inaccurate and disparaging allegations regarding [him] in a public forum.”
A temporary orders hearing was conducted on January 18, 2022. During this
hearing, Father testified that he overheard a phone call in which Mother told the
children that she had moved back to Australia. Father asserted that Mother filed a
letter with the court stating that she was “subject to a 10-year bar to entry into the
United States” because she was “out of status.” Mother appeared pro se and testified
that she was currently residing in Australia because she “had to leave.” According
to Mother, she left for Australia on January 12, 2022 and could not lawfully reenter
the United States for a ten-year period. At the conclusion of the temporary orders
hearing, the trial court appointed Father as temporary sole managing conservator and
awarded him the exclusive right to hold and apply for the children’s passports. The
trial court did not award Mother any periods of physical possession but found that
Mother was entitled to reasonable periods of electronic access.
The trial court conducted a bench trial on the petition to modify on September
23, 2022. Both Father and Mother testified. Father testified that Mother had
previously dropped the children off at his residence with several large bags of
clothing, toys, and Mother’s dog. Father was unaware that Mother planned to leave
the United States due to her immigration status. A couple of weeks after leaving the
United States, Mother told the children over the telephone that she was in Australia.
Father also testified about CPS investigations that were initiated by Mother accusing
him of sexually abusing the children. Each of the allegations was ruled out.
According to Father, CPS investigators expressed concerns that Mother was
manipulating and coaching the children to influence the investigation.
Mother testified that she never agreed to move to the United States
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permanently. Mother alleged that she did not have support from Father after the
parties divorced. As an example, Mother testified that Father would not provide
living accommodations for her when she was evicted. Mother testified that she was
unable to lawfully work in the United States because she did not have a work permit.
She denied abandoning her children and explained that she decided to return to
Australia where she had the support of the government and her family. Mother
desired for the trial court to compel Father and the children to return to Australia.
At the conclusion of the trial, the trial court granted the petition to modify and
signed an order on October 14, 2022. The trial court modified the 2018 Order and
appointed Father as sole managing conservator and Mother as possessory
conservator. Father was awarded, inter alia, the exclusive right to designate the
primary residence of the children without a geographic restriction. This appeal
followed.
Discussion
Mother represented herself pro se in the trial court and continues to do so on
appeal. 1 As presented, we interpret Mother’s brief to raise four issues: (1) the trial
court lacked jurisdiction to modify the 2018 Order, (2) the evidence was legally and
factually insufficient to support the trial court’s modification removing her as a joint
managing conservator of the children, (3) the trial court’s ruling was not in the best
interest of the children, and (4) there was no evidence presented that Mother was an
unfit parent. We turn to Mother’s first issue raised on appeal.
1
Although we liberally construe briefs and other filings that are submitted by pro se parties,
we hold pro se litigants to the same standards as licensed attorneys and require them to comply
with all applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184–85 (Tex. 1978); Rogers v. City of Houston, 627 S.W.3d 777, 786 n.1 (Tex. App.—Houston
[14th Dist.] 2021, no pet.). To allow different treatment for pro se litigants would provide them
with an unfair advantage over litigants represented by counsel. See Mansfield, 573 S.W.2d at 185.
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Jurisdiction
In her first issue, Mother challenges the trial court’s jurisdiction to modify the
2018 Order. In support of her position, Mother cites the Uniform Child Custody
Jurisdiction and Enforcement Act (the UCCJEA) and chapter 155 of the Texas
Family Code. Father counters that the UCCJEA is inapplicable to this case, and
under chapters 155 and 156, the trial court had continuing, exclusive jurisdiction to
modify its order.
We begin our analysis by determining whether the UCCJEA is applicable to
the facts presented in this case. The UCCJEA “was designed, in large part, to clarify
and to unify the standards for courts’ continuing and modification jurisdiction in
interstate child-custody matters.” In re Forlenza, 140 S.W.3d 373, 374 (Tex. 2004)
(orig. proceeding). The Act attempts to deal with the problems of competing
jurisdictions entering conflicting interstate child-custody orders, forum shopping,
and the arduous child-custody legal proceedings encountered by parties where
multiple states are involved. See In re Dean, 393 S.W.3d 741, 743 (Tex. 2012) (orig.
proceeding). Under the Act, the jurisdiction of one state to modify the child-custody
orders of another state is limited. Id.In this case, the UCCJEA is inapplicable because the trial court did not modify
a child-custody order of another state. See Tex. Fam. Code § 152.203 (providing that
a Texas court possesses jurisdiction to modify orders from another state that affect
the parent-child relationship when certain requirements are met). Rather, the trial
court modified its own order. The trial court acquired continuing, exclusive
jurisdiction upon entry of the 2018 Order and retained continuing, exclusive
jurisdiction to modify the 2018 Order. See id. §§ 155.001–.003. Further, there is no
evidence that the trial court lost its continuing, exclusive jurisdiction to modify its
prior order. See id. § 155.004.
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Even though Mother argues the UCCJEA is applicable because the parties and
the children are Australian citizens, the children’s country of origin is irrelevant. As
stated, the trial court acquired continuing, exclusive jurisdiction upon rendition of
the 2018 Order—a final order in a suit affecting the parent-child relationship. Id. §
155.001(a). Indeed, when Mother filed her petition in May 2020 to modify the 2018
Order, she correctly identified the trial court as the court with continuing, exclusive
jurisdiction. Mother’s subsequent move to Australia does not change the trial court’s
jurisdiction when Father and the children have continuously resided in Texas since
2013.
Having determined that the UCCJEA is inapplicable to this case, we turn to
whether the trial court properly exercised jurisdiction under chapter 155. Under
chapter 155, a court acquires continuing, exclusive jurisdiction in matters covered
by Title 5 of the Family Code. See Tex. Fam. Code § 155.001(a); see also In re Ron,
582 S.W.3d 486, 491–92 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding)
(“This exclusive jurisdiction ‘only affects jurisdiction in matters covered by Title 5
of the Family Code, Parent-Child Relationship.’”) (quoting In re H.E.L., No. 10-04-
00204-CV, 2005 WL 170644, at *1 (Tex. App.—Waco Jan. 26, 2005, orig.
proceeding) (mem. op.)). If a court has acquired continuing, exclusive jurisdiction,
a court may exercise its jurisdiction to modify its order regarding managing
conservator unless (1) the children’s home state is not Texas or (2) a modification is
precluded by chapter 152. Tex. Fam. Code § 155.003(b). Likewise, if a court has
acquired continuing jurisdiction, no other court may modify possessory
conservatorship or possession of or access to the children unless (1) the children’s
home state is not Texas and all parties have established and continue to maintain
their principal residence outside of Texas, or (2) each individual party has filed
written consent with the Texas tribunal for a tribunal of another state to modify the
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order and assume continuing, exclusive jurisdiction of the suit. Id. § 155.003(c).
Furthermore, a court may not exercise its continuing jurisdiction to modify its child
support order if precluded by chapter 159 of the Family Code. Id. § 155.003(d).
Under chapter 156 of the Family Code, “a court with continuing exclusive
jurisdiction may modify an order that provides for the conservatorship, support, or
possession and access to a child.” Id. §156.001. A motion to modify the parent-child
relationship is a suit affecting the parent-child relationship. See id. § 101.032(a)
(defining “suit affecting the parent-child relationship”).
On April 16, 2018, the trial court signed the 2018 Order. This was a final
order, which appointed Mother and Father as joint managing conservators and
determined the terms of possession, access, and support of the children. At the time
of this order, the home state of the children was Texas. Thus, the trial court acquired
continuing, exclusive jurisdiction of the suit and all of the parties, and no other court
of this state has jurisdiction with regard to these children. See id. § 155.001(a), (c).
As discussed, the trial court retained its continuing jurisdiction when Mother filed
her petition to modify the 2018 Order. Subsequently, when Father filed his
emergency petition in January 2022 to modify the 2018 Order, the trial court still
retained jurisdiction of the suit and the parties. See id. § 155.002. We already
established that the UCCJEA is inapplicable to this case, and there is no evidence
that Texas is no longer the children’s home state. Again, Mother’s return to Australia
during the pendency of the suit had no effect on the trial court’s jurisdiction. See id.
§ 155.003(b), (c). Therefore, the trial court had jurisdiction to modify the 2018
Order. See id.
Accordingly, we overrule Mother’s first issue.
Sufficiency of the Evidence/Best Interest
In her second issue, Mother contends the evidence was legally and factually
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insufficient to support the trial court’s modification removing her as a joint
managing conservator of the children. In her third issue, Mother argues that the trial
court’s ruling is not in the best interest of the children. In her fourth issue, Mother
asserts that there was no evidence presented that she was an unfit parent. These
issues raise similar arguments in that they challenge the trial court’s determination
of conservatorship. Accordingly, we analyze together Mother’s second, third, and
fourth issues.
In determining issues of conservatorship and possession and access, the
primary consideration is always the best interest of the children. See id. § 153.002;
Brandon v. Rudisel, 586 S.W.3d 94, 102 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (providing that the children’s best interest holds paramount importance in
making any custody call). When determining the children’s best interest, Texas
courts are to look to the following non-exhaustive list of factors: (1) the desires of
the children; (2) the emotional and physical needs of the children now and in the
future; (3) the emotional and physical danger to the children now and in the future;
(4) the parental abilities of the individuals seeking custody; (5) the programs
available to assist these individuals to promote the best interest of the children; (6)
the plans for the children by the individuals seeking custody; (7) the stability of the
home; (8) the acts or omissions of the parent that may indicate that the existing
parent-child relationship is not proper; and (9) any excuse for the acts or omissions
of the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re
H.D.C., 474 S.W.3d 758, 766–67 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
We review conservatorship determinations for abuse of discretion. See In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Baltzer v. Medina, 240 S.W.3d 469, 474–
75 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Under this standard, a challenge
to the legal or factual sufficiency of the evidence is not an independent ground of
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error but may be a relevant consideration in assessing whether the trial court abused
its discretion. See Baltzer, 240 S.W.3d at 475. “As conservatorship determinations
are ‘intensely fact driven,’ the trial court is in the best position to ‘observe the
demeanor and personalities of the witnesses and can “feel” the forces, powers, and
influences that cannot be discerned by merely reading the record.’” In re J.J.R.S.,
627 S.W.3d 211, 218 (Tex. 2021) (quoting Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.
2002)). Generally, a trial court abuses its discretion by acting arbitrarily,
unreasonably, or without reference to any guiding rules or principles. See Swaab v.
Swaab, 282 S.W.3d 519, 524 (Tex. App.—Houston [14th Dist.] 2008, pet dism’d
w.o.j.). We cannot interfere with the trial court’s ruling so long as there is some
evidence of a substantive and probative character to support its decision. See In re
A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
On appeal, Mother complains that the trial court: (1) “reduc[ed] [her] to
supervised visitation” without clear and convincing evidence; (2) “violated [her]
parental and human rights to custody and visitation by wrongful seizure/retention
[and] geographically restricting out of status Australian children to move home to
Australia with their biological mother”; (3) “stripped [her] custody rights due to her
inability to reside in the United States”; and (4) failed to consider the children’s
“[c]ountry of [o]rigin” given Father’s temporary work assignment. Mother’s
arguments, however, are not supported by the record.
In this case, Father testified that he had exclusive care, custody, and control
of the children since late December 2021. Father explained that he had not planned
on picking up the children until school resumed in January 2022. However, he
received a text message from Mother stating that she was in his neighborhood. When
Mother arrived, she dropped off the children, along with several large bags of
clothing and toys, and left with the people that brought her. The children did not
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testify nor did Father report any statements made by the children reflecting their
desires, if any. Father, however, described the children’s behavior after learning that
Mother moved back to Australia. Father expressed that the children cried a lot, were
“very sad for a number of days,” and were angry and hurt. On cross-examination,
Father asserted that the children were struggling emotionally because Mother left for
Australia and “left them in America.” In response to allegations that she abandoned
the children, Mother testified that her circumstances in the United States had become
“unattainable” because she did not have family, did not have a place to live, could
not work in the United States, and did not have the support of the government.
Mother acknowledged that she was unable to reenter the United States for a ten-year
period.
Father also testified that it was not in the best interest for Mother to have the
right of possession to the children because he was “fearful of another abduction.”
Father explained that in 2015, he came home one night to an empty house. He texted
and called Mother but did not receive a response. Approximately “24 to 36 hours
later,” Father received correspondence from Mother stating that she and the children
were in Australia. According to Father, it cost him well over a hundred thousand
dollars and took him the better part of a year to get the children returned to the United
States. In response to Father’s testimony, Mother testified that she did not abduct her
children. According to Mother, a week before she took the children to Australia, she
discovered a “handwritten divorce document where [Father] was plotting and
scheming.” She told Father that their situation was not working, and mediation was
necessary. Mother testified that she felt “more comfortable and safe[r]” doing so in
Australia. The following week, Mother left for Australia with the children and
claimed that Father knew where they were going.
The trial court also heard Father’s testimony about how Mother’s sexual abuse
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allegations against him impacted the children. Even though Mother’s allegations
were ruled out by CPS investigators, Father still apologized to the children for being
put through a traumatic experience. Father also described Mother’s allegations that
his employer was complicit in human trafficking. Father stated that he believed that
Mother’s behavior was a “deliberate attempt to make [him] unemployable” and
“interfere with the [v]isa renewal process for [him] and [the children].” In response
to Father’s testimony, Mother suggested that her sexual abuse allegations against
Father were facts. Mother also believed that Father’s employer demonstrated
“symptoms of human trafficking in the way that they have trafficked [her] and [the]
children on a short-term work assignment” and had them “held hostage in the United
States of America.”
The balance of Father’s and Mother’s testimony relates to Mother’s acts and
omissions, the lack of stability in Mother’s home, and Mother’s inability to provide
suitable housing for the children. Mother’s testimony demonstrates the emotional
and physical danger to the children now and in the future and the emotional and
physical needs of the children now and in the future. Mother exhibited behavior
reflective of an inability to give first priority to the welfare of the children and reach
shared decisions in the children’s best interest, i.e., dropping the children off with
Father just days before school resumed knowing that she was leaving for Australia
and likely could not reenter the United States for a ten-year period. Mother also
demonstrated an inability to encourage and accept a positive relationship between
the children and Father, i.e., making false complaints that Father sexually abused the
children and engaging in behavior that jeopardized Father’s employment.
Under the Holley factors, the record contains at least some evidence of a
substantive and probative character to support the trial court’s finding that removing
Mother as joint managing conservator and naming Father as sole managing
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conservator was in the children’s best interest. See Zewde v. Abadi, 529 S.W.3d 189,
196–97 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Likewise, the record
contains at least some evidence that denying Mother access to the children, or
alternatively, ordering that her periods of visitation be continuously supervised was
in the children’s best interest.
To the extent Mother argues that the trial court was required to find by clear
and convincing evidence that she was an “unfit parent” to remove her as a managing
conservator of the children, such an argument is inconsistent with established law.
See Tex. Fam. Code § 153.131(b) (providing that there is a rebuttable presumption
that appointment of the parents as joint managing conservators is in the best interest
of the children). There was evidence that Mother previously abducted the children,
was a potential risk of international abduction, made false allegations that Father
sexually abused the children, attempted to interfere with Father’s employment, did
not have a stable home, and could not lawfully reenter the United States before the
children turned eighteen. The record, therefore, contained evidence supporting the
trial court’s implied finding that the presumption was rebutted and naming the
parents as joint managing conservators was not in the children’s best interest.
Accordingly, we overrule Mother’s second, third, and fourth issues.
Conclusion
We affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
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