Court of Appeals of Texas, Sixth District, Texarkana
Submitted: December 3, 2013
On Appeal from the County Court at Law Cass County, Texas Trial Court No. CCL-11-D-296
Before Morriss, C.J., Carter and Moseley, JJ.
Jack Carter, Justice
Jami N. Tally and Leonard M. Jester, III, were divorced on September 9, 2011. They were appointed as joint managing conservators of their son, C.R.J., with Tally having "the exclusive right to designate the primary residence of the child without regard to geographic location." Jester received word that Tally intended to remarry and move with the child to New Mexico. In a petition to modify the parent-child relationship filed on June 18, 2012, Jester requested that he be given the right to designate the residence of the child and that the "residence be restricted to Cass County." The trial court modified the parent-child relationship by limiting the designation of the primary residence to "a 100 mile radius of Atlanta, Texas."
On appeal, Tally argues, among other things, that (1) the trial court erred in holding a hearing on Jester's motion because his supporting affidavit was insufficient, (2) the trial court's temporary orders imposing a geographical restriction were entered erroneously, and (3) the evidence was insufficient for the trial court to enter final orders imposing a geographical restriction. We find that Tally failed to preserve her complaints relating to Jester's affidavit and the court's decision to hold a hearing under his motion. We also find moot Jester's complaints related to the court's temporary orders. We conclude that the evidence was sufficient to support the trial court's final modification. Accordingly, we affirm the trial court's judgment.
I. Tally Failed to Preserve Issues Related to Jester's Affidavit and the Section 156.102
Under Section 156.102 of the Texas Family Code, a petitioner who seeks to modify the exclusive right to determine primary residence of a child within one year of a previous order must file an affidavit containing at least one of the following allegations:
(1) that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development;
(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or
(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.
Tex. Fam. Code Ann. § 156.102(a), (b) (West Supp. 2013).
"The philosophical underpinning of section 156.102 is clear: the Legislature intended to promote stability in the conservatorship of children." In re D.W.J.B., 362 S.W.3d 777, 781 (Tex. App.—Texarkana 2012, no pet.) (quoting Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.—Houston [1st Dist.] 1997, pet. denied)). "To that end, relitigation of custodial issues within a short period of time after the custody order is discouraged through the imposition of a heightened standard of verified pleading." Id.
Jester alleged that C.R.J.'s present environment could significantly impair the child's emotional development. The affidavit stated,
Despite the periods of possession and access set forth in the Final Decree of Divorce, my ex-wife continues to deny me possession of my child. Further, it is my understanding that she recently began dating an individual and has expressed a desire to move to New Mexico with this boyfriend. My child has no friends or family in New Mexico, and the distance between us if he moves would be great as to effectively cut me out of his life. All of his extended family, including grandparents, cousins, aunts and uncles live within a 20 mile radius of his current residence. To take him away from his family, especially his father, would be detrimental to his welfare. Further, since this is a relatively new relationship between my ex-wife and this boyfriend, there is no way of knowing whether this relationship will even last. I believe it to be in the best interest of my child to remain in East Texas, close to his father and family.
For the first time on appeal, Tally argues that the affidavit, which sought to maintain the status quo by leaving the child in Atlanta, Texas, did not allege that the child's present circumstances significantly impaired his emotional development. Instead, the allegation was that a possible future move could significantly impair the child's emotional development. Because there was no challenge to the affidavit below, we conclude that Tally has failed to preserve this point for our review. See In re L.V., No. 05-10-00687-CV, 2011 WL 2860008, at *1 (Tex. App.—Dallas July 20, 2011, no pet.) (mem. op.) (citing Tex.R.App.P. 33.1(a); Serafin v. Seale, No. 03-09-00516-CV, 2010 WL 4910047, at *2 (Tex. App.—Austin Dec. 2, 2010, no pet.) (mem. op.)); see also In re A.L.W., 356 S.W.3d 564, 568 (Tex. App.—Texarkana 2011, no pet.) (failure to bring motion to dismiss petition for insufficient affidavit under Section 156.102 to trial court's attention "effectively waived the motion").
A trial court "shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit." Tex. Fam. Code Ann. § 156.102(c) (West Supp. 2013). When the trial court holds a Section 156.102 hearing, there is an implied finding that the affidavit contained allegations meeting the requirements of that section. A.L.W., 356 S.W.3d at 566–67.
Tally next argues, again for the first time on appeal, that the trial court erred in holding a hearing. To the extent the brief complains of the trial court holding a temporary hearing or issuing temporary orders, we note that these complaints were rendered moot when the final order in this case was entered. See In re K.L.R., 162 S.W.3d 291, 301 (Tex. App.—Tyler 2005, no pet.); In re P.R., 994 S.W.2d 411, 417 (Tex. App.—Fort Worth 1999, pet. dism'd w.o.j.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex. 2002); Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex. App.—Houston [1st Dist.] 1988, no writ); Garner v. Garner, 673 S.W.2d 413, 418 (Tex. App.—Fort Worth 1984, writ dism'd); see also In re Barkley, No. 07-09-0190-CV, 2009 WL 2431499, at *1 (Tex. App.—Amarillo Aug. 10, 2009, orig. proceeding).
To the extent the complaint relates to the final hearing, the question that must be resolved at the outset is whether Tally has preserved this issue for appeal. ...