Epps v. Deboise

Michael Massengale, Justice,

concurring.

I join the court’s opinion, except for its dicta analyzing whether there is sufficient evidence to support a finding of a material and substantial change to justify a change in custody. The sufficiency of the evidence to support the judgment was challenged in three issues, all focused on the best interest of the child. Those issues, as stated verbatim in appellant Shayna Epps’s briefs, are:

Issue 1: The trial court erred in entering a judgment based on the jury verdict because the evidence was legally insufficient to support the jury’s finding that modification of custody was in the child’s best interest.

Issue 2: The trial court erred in entering a judgment based on the jury verdict because the evidence was factually insufficient to support the jury’s finding that modification of custody was in the child’s best interest.

Issue 3: The trial court abused its discretion in modifying conservatorship because the evidence was both legally and factually insufficient to prove that modification of custody was in the child’s best interest.

Appellant’s Brief at iii (table of contents, emphasis supplied); id. at 5 (issues presented, emphasis supplied); id. at 19 (restatement of issues in argument section, emphasis supplied); Appellant’s Reply Brief at 6, 9, 13 (restatements of issues in argument section, emphasis supplied); see also Appellant’s Brief at 17-18 (summary of the argument).

While the briefing did make tangential references to the other element of material-and-substantial change, as suggested by Epps’s various statements of her appellaté issues, that element was not the focus of her appellate challenge. The court’s extended discussion of this element is dicta, it is unnecessary to the resolution of the appeal, 'and I decline to join it.