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In re J.S.

Court of Appeals of Texas, Fifth District, Dallas

March 6, 2017


         On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-21046-S

          Before Justices Francis, Stoddart, and Whitehill



         Appellant Mother and appellee Father divorced and were named joint managing conservators of their fourteen-year-old son (J.S.) and twelve-year-old daughter (also J.S.). Mother later filed a petition requesting several modifications to the divorce decree, including appointing her as the children's sole managing conservator and changes regarding child support and medical support. After a bench trial, the trial court denied most of this relief.

         Mother appeals, raising six points of error. We overrule them all and affirm.

         I. Background

         In December 2011, Mother filed for divorce from Father. According to a forensic custody evaluation, Son was diagnosed in September 2012 with "multiple symptoms consistent with Asperger's."

         In March 2013, the trial judge signed an agreed divorce decree. The decree contained several provisions relevant to this appeal:

• Mother and Father were appointed joint managing conservators of both children.
• Each parent had the right to consent to the children's medical, psychiatric, and psychological treatment subject to the other parent's agreement.
• Father was obliged to pay child support of $1, 875 per month, which would drop to $1, 500 once Son, the older child, turned 18 or graduated from high school, whichever occurred later.
• Father was given weekend possession of the children starting Thursday afternoons and ending on Monday mornings for weekends encompassing the first, third, and fifth Fridays of the month. He was given other periods of possession during vacations and holidays.

         In June 2014, Mother filed a petition to modify asking that (i) she be named the children's sole managing conservator and (ii) Father's child and medical support obligations be increased.

         On October 6 and 8, 2015, the case was tried without a jury. Son was then seventeen years old, and Daughter was fourteen. The trial focused largely on the severity of Son's Asperger's or autism spectrum disorder, as well as Father's relationships with the children and the high-conflict relationship between Mother and Father.

         The trial judge signed an order (i) granting some requested modifications but denying others; (ii) maintaining both parents as the children's joint managing conservators; (iii) not changing the duration of Father's child support obligation for Son; (iv) extending Father's medical support obligation regarding Son to Son's twenty-first birthday; (v) giving Father possession of Daughter on Thursday evenings and Sunday afternoons; (vi) requiring Father and Son to attend appointments with Dr. Robert B. Mandell in an effort to "reunify" their relationship; and (vii) ordering that Father would have possession of Son as agreed to by Father and Son, subject to Mandell's recommendation.

         That order, however, also contains the trial court's express fact finding relevant to family code § 154.302 (concerning court-ordered support for disabled children) that "[t]he Court does not find by a preponderance of the evidence . . . that [Son] requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self support at this time based on the evidence."

         Mother timely filed a new trial motion, which was overruled by operation of law. She also timely requested findings of fact and conclusions of law, but the trial court did not make any.

         Mother timely appealed.

         II. Analysis

         A. Point of Error One: Did the trial court err by failing to interview the children in chambers?

         Mother complains that the trial court did not interview the children in chambers pursuant to Texas Family Code § 153.009(a). We conclude that Mother did not preserve this point of error because she did not raise the issue at the bench trial.

         Family Code § 153.009(a) provides that, in a nonjury trial and on a party's application, the trial court shall interview in chambers a child twelve years old or older "to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence." Tex. Fam. Code § 153.009(a).

         Mother's petition requested a § 153.009(a) interview. About a month before trial, she filed a motion requesting such an interview. Several days later, the judge signed an order granting the motion and ordering that the interview would take place at 4:00 p.m. on October 6, 2015. According to Mother's reply brief on appeal, this order was not sent to her.

         The case was tried on October 6 and 8, 2015. The reporter's record does not reflect that anyone mentioned the in chambers interview on either day of trial. Mother did not complain about the judge's failure to interview the children until she filed her new trial motion.

         To preserve a complaint for appellate review, a party must raise the complaint in the trial court "by a timely request, objection, or motion." Tex.R.App.P. 33.1(a)(1). "A timely objection for purposes of rule 33.1 is one interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error." Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.-Dallas 2015, pet. denied) (internal quotations and citation omitted); see also Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex. App.-Tyler 1981, writ ref'd n.r.e.) (complaints about jury selection are untimely if first raised in new trial motion).

         Had Mother asked the trial judge to interview the children during the trial, the judge could have cured the error Mother now raises without the effort and expense of a new trial. We therefore conclude that error was not preserved because Mother did not timely raise her complaint in the trial court. Accordingly, we overrule Mother's first point of error.

         B. Point of Error Two: Did the trial court abuse its discretion by not appointing Mother as the children's sole managing conservator?

         Mother's second point of error challenges the order continuing the parents' joint managing conservatorship. We overrule her second point of error because there was conflicting evidence concerning this issue that precludes us from concluding that the trial court's ruling was an abuse of discretion.

         1. Applicable Law and Standard of Review

         Mother sought to be named the children's sole managing conservator, which would have given her exclusive rights to make most important decisions about the children. See Fam. § 153.132 (stating rights and duties of parent sole managing conservator); see also Mike McCurley, Examining Old and New Strategies for Family Law Practitioners in Texas, Strategies for Family Law in Texas, 2011 WL 5073114, at *3 (2011 ed.) ("[A] sole managing conservator basically makes all the decisions about the children to the exclusion of the possessory conservator, who only has visitation and other very limited rights.").

         To obtain that modification, Mother bore the burden of proving (i) that the modification was in the children's best interests and (ii) there had been a material and substantial change in the circumstances of a child, a conservator, or another person affected by the divorce decree. See Fam. § 156.101(a)(1); In re S.N.Z., 421 S.W.3d 899, 909 (Tex. App.-Dallas 2014, pet. denied).

In determining a child's best interest, a court may consider, among other things:
(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (footnotes omitted). Although Holley was a termination case, we have employed the Holley factors in modification cases as well. See In re S.N.Z., 421 S.W.3d at 910.

         Mother asks us to consider the best interest factors found in § 153.134(a), which addresses court-ordered joint conservatorships. Modification proceedings, however, are governed by Family Code Chapter 156, not Chapter 153. Cf. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) ("Chapter 153 and Chapter 156 are distinct statutory schemes that involve different issues."). But, because the Holley factors are not exclusive, 544 S.W.2d at 371-72, the § 153.134(a) factors may also be considered in a modification case. See Caldwell v. Garfutt, No. 03-14-00019-CV, 2016 WL 105920, at *5 (Tex. App.-Austin Jan. 7, 2016, pet. denied) (mem. op.) (citing § 153.134(a)(2) in a modification appeal). Mother focuses on the factor stated in § 153.134(a)(2), which is "the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest." Fam. § 153.134(a)(2).

         We review a modification decision for abuse of discretion. See In re M.M.S., 256 S.W.3d 470, 476 (Tex. App.-Dallas 2008, no pet.). We examine whether the judge had sufficient information on which to exercise its discretion and, if so, whether it acted reasonably in exercising its discretion. Id. Legal and factual sufficiency are not independent grounds of error under this review, but they are relevant factors. Id. There is no abuse of discretion as long as some substantive and probative evidence supports the trial court's decision.[1] Id.

         "The trial court is in the best position to observe the witnesses and their demeanor and, therefore, is given great latitude when determining the best interests of the child." In re S.N.Z., 421 S.W.3d at 909; see also In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.-Dallas 2011, pet. denied) ("The trial court, as the fact finder in this case, is the sole ...

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