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In re N.V.R.

Court of Appeals of Texas, Sixth District, Texarkana

August 31, 2017


          Submitted: August 30, 2017

         On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2007-2400-DR

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Josh R. Morriss, III Chief Justice

         As the result of the most recent order affecting the parent-child relationships among the parents, William Runnels and Domanita Craddock-Neal, and their three children, Natasha, Jamal, and Devin, [1] what previously had been essentially equal parental rights were strengthened for Domanita and weakened for William. On appeal, William argues that, in the latest hearing, the trial court erroneously admitted therapy notes from his children's counselor into evidence, abused its discretion in entering the modification order, and erred in assessing attorney fees against him. We affirm the trial court's judgment because (1) Runnels failed to preserve his objection to the admission of the therapy notes, (2) no abuse of discretion is shown in the entry of the modification order, and (3) no abuse of discretion is shown in the assessment of attorney fees.

         First, a bit more background is in order. In 2010, the trial court had appointed William and Domanita joint managing conservators of their children, Natasha, Jamal, and Devin, in a suit affecting the parent-child relationship (SAPCR). The 2010 order recited that "the primary residence of the children [was to] be Longview Independent School District, " but did not specify which parent had the right to designate the primary residence of the children. Because William and Domanita had equal possession of the children under the order, neither was ordered to pay child support. During the school year, William and Domanita traded possession of the children each week.

         In 2016, after finding the "week-on week-off " possession schedule unsuitable, William filed a petition to modify the 2010 order. William alleged that the circumstances of the parties had materially and substantially changed, requested that he be allowed to designate the primary residence of the children, sought possession pursuant to a standard possession order, and asked the trial court to order Domanita to pay child support. Domanita filed a counter-petition to modify the 2010 order. Her petition, which also sought the imposition of a standard possession order, asked that she be allowed to designate the children's primary residence and collect child support from William.

         Following an evidentiary hearing, in which William appeared pro se, the trial court determined that the circumstances of the parties had materially and substantially changed since the 2010 order, gave Domanita the right to designate the children's primary residence, and ordered William to pay child support. The trial court further determined that William was to have possession of all of his children "[o]n weekends that occur[red] during the regular school term, beginning at the time the child's school [was] regularly dismissed, every other Friday and ending at the time the child's school resume[d] the following Monday." Additionally, William would have possession of Jamal and Devin "[o]n Mondays that occur[red] during the regular school term, beginning at the time the child's school [was] regularly dismissed every Monday and ending at the time school resume[d] on the following Tuesday." Holidays were divided in the same manner as in the 2010 possession order to ensure, generally, that each parent had equal time with the children.

         At the time of the final hearing, Natasha was fourteen, Devin was thirteen, and Jamal was eleven. The trial court heard testimony from William, Domanita, and Camella Jones, a licensed professional counselor.

         William testified that, since the 2010 order, Domanita had married Johnny Neal. William accused Neal of abusing the children. He testified that Neal had cussed at Jamal, told him that he was "stupid, " and hit Jamal in the head when he would not go to bed. William also testified that Neal hit Devin with a bag of Legos after Devin refused to clean the house. Citing the fact that Domanita worked two jobs, William complained that the children were often left in Neal's care and alleged that Domanita was a neglectful parent. William also complained that Domanita had borrowed money from Natasha and accused Domanita of being late to drop off the children on August 26, 2016.

         Domanita denied that she had ever interfered with William's possession schedule and asserted that William was mistaken about what time he was entitled to possess the children on August 26. She informed the trial court that William did not always answer her telephone calls or return her text messages, which created difficulty in their relationship. Domanita, who worked full time at Good Shepherd Medical Center and part-time at a clothing store, testified that Neal took care of the children when she was not at home. Domanita denied any physical abuse of the children. She further testified that William told the children not to speak to her when they were in his possession and called Domanita "tricky" in front of the children. Domanita also testified that William was claiming the children as dependents on his tax returns in years when Domanita was entitled to claim them as dependents.

         Domanita also testified about the impact of the temporary orders on the children. She testified that Natasha could not focus and that Jamal and Devin had been suspended after fighting in school. During her cross-examination, Domanita admitted that she had placed Jamal and Devin in another school within the Longview Independent School District without consulting William. Their new school was closer to Domanita's home, which she represented to the school as the children's primary residence. Domanita testified that William's decision to file the SAPCR had distressed the children, who were in counseling with Jones.

         Jones testified that, on two occasions, she met with Natasha, who was "struggling with a lot of guilt and responsibility for the relationship distress between her parents." Jones' therapy progress notes-the admission of which are challenged on appeal by William-reflected that, according to Natasha, William became angry when Domanita was not exactly on time for exchanges of possession. Natasha said, "I worry what [William] will say or do when he gets mad, " and added, "I get tired of [William] saying my mama is a liar." According to Jones, Natasha expressed her wish to live full-time with her mother while visiting with William one or two days per week. Jones opined that Natasha was "extremely emotionally stressed" and required a change in her living situation to prevent being placed on "medicinal intervention to manage depressive and anxiety symptoms."

         Jones also met with Jamal and Devin on three occasions. Jones testified that Jamal described Neal as "mean, " but did not mention any physical abuse to her. According to the therapy progress notes, Jamal said, "I love my dad and I have fun with him. But, I am so scared to tell him how I really feel. He'll get mad." He made no negative statements about William, but stated that he wanted more time with Domanita, worried about her, and wondered if she still loved him.

         Jones testified that Devin wanted to see his mother every week. Devin's therapy progress notes reflected that he did not want to upset William, wanted equal time with both of his parents, and wished for a possession schedule that was not confusing. According to Jones' notes, Devin told her, "[M]y dad mostly hate[s] my mom. He talks about her tricks, but I don't think she's tricky."

         Based on statements made during therapy sessions, Jones' notes concluded that, although all three children loved and wanted to be with both of their parents, William had purposefully divided the family. William had also filed a complaint against Jones alleging that she had impersonated a Child Protective Services worker at the children's school. Jones denied the allegation. William, who read Jones' negative comments about him in the therapy progress notes, complained that Jones had never met with him before making her recommendations. He informed the trial court that he objected to Jones' counseling of the children.

         (1) William Failed to Preserve His Objection to the Admission of the Therapy Notes

         On appeal, William argues that the trial court should have excluded Jones' notes under Rule 403 of the Texas Rules of Evidence. We find that he has failed to preserve this appellate point for our review.

         "As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion Tex.R.App.P. 33.1(a)(1). William referred to Jones' therapy notes during his own testimony. When Jones' therapy notes were later offered into evidence, William stated, "It's my first time seeing them. Other than that, I don't have any objection." William failed to argue that the notes should be excluded under Rule 403. Therefore, he did not preserve his ...

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