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Mark Thornton and Debra Dempsey Thornton v. Amanda Cash and Dana Varney

April 18, 2013


On Appeal from the 308th District Court Harris County, Texas Trial Court Cause No. 2010-19565

The opinion of the court was delivered by: J. Brett Busby Justice

Affirmed and Memorandum Opinion filed April 18, 2013.

In The Fourteenth Court of Appeals


Appellants, Mark and Debra Dempsey Thornton, appeal from the trial court's modification of a conservatorship and possession order as part of the final decree of divorce ending Amanda Cash and Dana Varney's marriage. The order changed the Thorntons' status from joint managing conservators to possessory conservators of Cash and Varney's daughter, M.V. The trial court also ordered the Thorntons to pay the amicus attorney's fees as well as a portion of Cash's attorney's fees. In three issues on appeal, the Thorntons contend that the trial court: (1) improperly applied a parental presumption; (2) erred in failing to consider the child's objectives and preventing the amicus attorney from fully participating in the trial; and (3) erred in assessing the amicus attorney's fees and a portion of Cash's attorney's fees against them. Finding no error, we affirm.


A. Procedural background

Cash and Varney were married in 1996. They eventually had two children, a boy, M.H.V., and a girl, M.V. M.V., the child at issue in this appeal, was born in 2000. In 2004, the Thorntons filed an original suit seeking custody of M.V. (the "2004 Case").*fn1 On January 15, 2010, pursuant to an agreed order, Cash and Varney on the one hand, and the Thorntons on the other, were appointed joint managing conservators of M.V. The January 2010 order awarded the Thorntons specified periods of possession of M.V. and awarded Cash and Varney the exclusive right to designate M.V.'s primary residence.

On March 26, 2010, Cash filed a petition for divorce from Varney (the "Divorce Action"). In her petition, Cash asked the court, with respect to M.V., to incorporate the January 2010 agreed order "into any Final Decree of Divorce in this matter as if quoted verbatim." Varney filed an answer and counter-petition for divorce.

The Thorntons filed an answer in the Divorce Action, and then filed a petition in intervention for conservatorship. In their petition in intervention the Thorntons alleged "there has been a material and substantial change of circumstances since the rendition of the last order and modification of the terms and conditions of access and periods of possession of [M.V.] on both a temporary and final basis is necessary and in the best interest of the child." In their intervention petition, the Thorntons asked the trial court to award them additional periods of possession of M.V. such that they would "have possession of [M.V.] at all times not allocated to the parents." The trial court appointed an amicus attorney to represent the interests of the two children.

In November 2010, Cash and Varney filed a "Joint Motion to Modify Parent-Child Relationship" in the 2004 Case. In their Joint Motion, Cash and Varney alleged that "the circumstances of the child, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified." In their joint motion, Cash and Varney asked the trial court to remove the Thorntons as managing conservators and to deny them any conservatorship over M.V.

The Thorntons then filed a "Counterpetition to Modify the Parent-Child Relationship" in the 2004 Case. Once again, the Thorntons alleged that "the circumstances of the child, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified." In their Counterpetition, in addition to asking for other relief, the Thorntons asked the trial court to grant them "the right to designate the primary residence of the child."

B. The bench trial regarding custody of M.V.

Eventually, the 2004 Case was consolidated into the Divorce Action. Cash and Varney reached a mediated settlement agreement regarding their son and the division of their property. All issues relating to M.V. were addressed in a bench trial, which occurred on August 30 and 31, 2011. Four witnesses testified during the bench trial. Because this appeal includes a challenge to the sufficiency of the evidence supporting the trial court's custody ruling, we discuss the evidence in some detail.

1. Mother's testimony

Cash, M.V.'s mother, testified first. Cash began by discussing the impact the Thorntons' alleged lack of cooperation was having on M.V. According to Cash, the Thorntons made it impossible for Cash to enroll M.V. in school activities and dance classes because they believed it would interfere with their Thursday visitation. In addition, Cash testified that M.V. was unable to attend various weekend activities, such as birthday and Halloween parties, that occurred on the Thorntons' weekends.

Cash's testimony touched on M.V.'s education. Cash testified that M.V. does well in school and that she regularly assists M.V. with her homework and studying. Cash also testified that she regularly visits M.V.'s school and meets with her teachers and counselors. Cash admitted that M.V. has had some disciplinary problems at school and is frequently late to school when she is in the custody of the Thorntons. Cash also testified that M.V. had received a Saturday detention and it fell on a weekend when she was with the Thorntons. According to Cash, the Thorntons failed to take M.V. to the detention and she faced possible suspension from school as a result.

Cash also testified regarding her son, M.H.V., and his relationship with M.V., his younger sister. According to Cash, the two siblings are close and M.V. loves her brother. Cash testified that she was aware the Thorntons were not interested in her son, and that she did not believe the siblings should be separated. Cash also testified that her son does well in school, participates in the school orchestra, and plays football. She explained that her son is able to participate in more activities than M.V. Cash's testimony also addressed inappropriate internet activities by M.H.V. and her efforts to monitor those activities and discipline M.H.V.

Cash admitted she was unemployed at the time of the bench trial but she asserted that she has the ability to return to work as a licensed vocational nurse. Cash also testified that she receives $406.00 each week in unemployment benefits as well as Medicaid and food stamps.

Cash also testified regarding her voluntary surrender of her nursing license in 2007. Cash explained that the Texas Board of Nursing has given her the opportunity to get her license reinstated. Cash testified that, to regain her license, she must successfully complete (1) a refresher course that costs $1,500.00; (2) six months of supervised employment; and (3) three years of discretionary monitoring by the board to ensure she is capable of working safely and ethically as a nurse. Cash testified that she was in the process of meeting those conditions, but in the meantime, she was enjoying the time she has with her children.

Cash's testimony also covered her prior drug issues and she testified that drugs were no longer a problem for her. Cash admitted that she has been required to take or has voluntarily taken random drug tests since January 2010, and the results of those tests have been negative. Cash also testified that she still attends "NA" and "AA" twelve-step meetings, usually four or five times a week.*fn2 Cash admitted that she takes several prescription medications, including Meloxicam, Suboxone, and Soma.*fn3 Cash also admitted that she smokes in her apartment, including when M.V. is present.

Cash admitted during her testimony that she had started a relationship with Bruce Roberts. Cash also admitted that Roberts spends the night at her home on a regular basis, but she did not believe this was disruptive for M.V. or set a bad example. Cash's testimony also addressed Roberts's fifteen year old son, J.R., and his online activities. According to Cash, these activities did not occur while J.R. was in her home, but she had discussed them with him and he was punished for those activities.

Cash also addressed M.V.'s attitude toward the Thorntons. Cash testified that M.V. is not biologically related to the Thorntons. When asked if there have been things that Cash had not been able to get or had refused to get M.V. that M.V. wanted, Cash answered that there had been, but the Thorntons would often buy her those things. Cash testified that the Thorntons had bought M.V. a cell phone and laptop computer, items Cash had refused to purchase M.V. because she believed M.V. was not old enough to have them. Cash testified that M.V. receives Christmas gifts from the Thorntons and those gifts remain at the Thornton residence. Cash also admitted M.V. likes to visit the Thorntons because, according to Cash, M.V. "gets all kind of stuff," including laptops, guinea pigs, and trips. Cash testified that M.V. does not have permission to use the computer in her home, but Mr. Thornton had created a Facebook page for her.

Cash testified that M.V. calls her "mom" or "mommy" and Varney "daddy." She also testified without objection that she is concerned that the Thorntons are "not [M.V.'s] mom and dad, . . . and she needs as normal of an opportunity to be able to grow up in a family unit as possible." Cash then testified that under the January 2010 agreed order, the Thorntons have possession of M.V. 47% of the time while she and Varney have M.V. the remaining 53%. Once they divorced, Cash testified that unless the court changed the possession order, she and Varney would have to divide their possession in half while the Thorntons would still have possession of M.V. for 47% of the time. Cash testified, again without objection, that she believed this was backwards and would not be fair to Varney, M.V.'s father.

Cash also testified, during cross-examination by the Thorntons' attorney, that she had concerns about the care the Thorntons provide M.V. According to Cash, she believes it is disruptive for M.V. to be "split three ways." Cash also testified that she believes it is disruptive for M.V. "to call non-related people Mommy and Daddy." Despite that, Cash admitted that M.V. is an important part of the Thorntons' lives and that M.V. has a relationship with them.

2. Father's testimony

Varney was the next witness to testify. Varney testified that he had been married to Cash for approximately fourteen years and it was the stress arising out of M.V.'s continuing custody case that caused Cash and Varney to file for divorce. Varney then testified about their efforts to cooperate in the raising of their children despite the divorce. Varney testified they attend activities together, cooperate with one another to make sure the two children get to school on time, and both help with the homework.

Varney also testified that M.H.V. is a good student, athlete, and successful student musician. Varney admitted that he had caught M.H.V. making inappropriate postings on the internet. Varney explained that he has made efforts to address that issue directly with M.H.V., by talking to M.H.V.'s school counselors, and by placing parental controls on the computer. Varney denied M.H.V. uses drugs and testified that M.H.V. has not caused any trouble at school or otherwise.

Varney then turned to the topic of the impact of his separation from Cash on his ability to interact with his children. Varney testified that he now sees both of his children less than he has ever seen them before. Varney testified this was the result of not only his efforts to work more to cover the expenses associated with the divorce, child support, and the children's ongoing activities, but also the amount of time M.V. spends with the Thorntons.*fn4 Varney testified that he did ...

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