Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF J.S. AND J.S., MINOR CHILDREN
Appeal from the 255th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-11-21046-S
Justices Francis, Stoddart, and Whitehill
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.
appeals, raising six points of error. We overrule them all
December 2011, Mother filed for divorce from Father.
According to a forensic custody evaluation, Son was diagnosed
in September 2012 with "multiple symptoms consistent
March 2013, the trial judge signed an agreed divorce decree.
The decree contained several provisions relevant to this
• 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
• 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.
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
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.
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
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."
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.
Point of Error One: Did the trial court err by failing to
interview the children in chambers?
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.
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
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
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.
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
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.
Point of Error Two: Did the trial court abuse its discretion
by not appointing Mother as the children's sole managing
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.
Applicable Law and Standard of Review
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
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.
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).
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. Id.
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 ...