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In re Marriage of Koenig

Court of Appeals of Texas, Fourteenth District

June 22, 2017

IN THE MATTER OF THE MARRIAGE OF KIMBERLY KOENIG AND CHARLES HEATH KOENIG

         On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 70204

          Panel consists of Justices Boyce, Jamison, and Brown.

          MEMORANDUM OPINION

          William J. Boyce Justice

         Appellant Charles Heath Koenig appeals a final judgment in a suit to modify the parent-child relationship. We affirm.

         Background

         Charles and Kimberly (Koenig) Baize divorced on November 15, 2013. In the final divorce decree, Charles and Kimberly were appointed joint managing conservators of their three children. Charles was given the exclusive right to designate the children's primary residence. Neither Charles's nor Kimberly's access to the children required supervision.

         Charles brought a petition to modify the parent-child relationship alleging the children's circumstances materially and substantially had changed. He requested, among other things, that Kimberly be denied access to the children or that her periods of access be supervised. Kimberly filed a cross petition to modify the parent-child relationship. Kimberly requested, among other things, that Charles be denied access to the children and that she be appointed the sole managing conservator. Charles nonsuited his petition and the parties proceeded to trial on the issues raised in Kimberly's petition.

         A bench trial occurred in December 2015. Among other witnesses, the trial court heard testimony from psychologist Maria Alvarez and Carolyn Holley, an investigator appointed to conduct a social study. The trial court signed a "Final Judgment in Suit to Modify Parent-Child Relationship" on March 3, 2016. The trial court ordered that Charles and Kimberly continue as joint managing conservators with Kimberly having the exclusive right to designate the children's primary residence. The trial court further ordered that Charles's access to the children would be limited as set out in six steps. If Charles successfully completed each one, then step six allowed visitation under a standard possession order.

         This appeal followed.

         Analysis

         Charles challenges the trial court's March 2016 judgment modifying conservatorship. In his first issue, Charles contends the judgment rests on legally insufficient evidence and the trial court erred in relying on expert testimony from psychologist Maria Alvarez. In his second issue, Charles contends he received ineffective assistance of counsel during the trial. Finally, in his third issue, Charles contends his due process rights were violated with respect to notice of the April 12, 2016 hearing on temporary orders.

         An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). An appellant's failure to comply with this rule may result in waiver of issues on appeal. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931-32 (Tex. App.-Houston [14th Dist.] 2008, no pet.). The argument in Charles's brief is not clear and does not contain appropriate citation to authorities and the record. Nonetheless, briefing rules should be construed liberally, and "appellate courts should reach the merits of an appeal whenever reasonably possible." Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); see also Tex. R. App. P. 38.1(f), 38.9. To the extent reasonably possible, we address Charles's contentions on appeal.

         I. Temporary Orders Pending Appeal

         As an initial matter, we address Charles's contention that our review of the trial court's March 2016 judgment encompasses a review of the trial court's temporary orders signed on April 14, 2016, after the judgment ...


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