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In re A.G.B.

Court of Appeals of Texas, Ninth District, Beaumont

December 14, 2017


          Submitted on October 20, 2017

         On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 10-04-03546-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.



         Deena Burt-Barnes appeals from an order modifying a prior order in a suit affecting the parent-child relationship. In four issues, Appellant (1) complains of the exclusion of critical evidence at trial, (2) challenges the factual sufficiency of the evidence, (3) argues the trial court aided the "exclusion" of the parent-child relationship, and (4) abused its discretion by awarding sole custody to Appellee, Eric Allen Barnes. We affirm the trial court's judgment.


         Deena and Eric divorced in 2011. In 2012, the trial court ordered Deena's visitation with the children to be supervised. In 2013, the trial court signed an order in a suit to modify the parent-child relationship. The 2013 order does not appear in the clerk's record, but in the modification hearing, the parties agreed the trial court ordered unsupervised Saturday-only visitation beginning in April 2013. In December 2013, Deena filed a suit and supporting affidavit to modify the custody, visitation, and support order signed earlier that year. See generally Tex. Fam. Code Ann. § 156.102 (West 2014). Her pleading complained that Eric moved with the children to Burnet County one day after the previous order was signed, and she asked that she be appointed sole managing conservator and that Eric's visitation be supervised because Eric was attempting to alienate the children from Deena. She further complained that she had to drive four hours each way to exercise her eight hours of Saturday visitation. In 2015, Eric filed a counter-petition seeking to limit Deena's visitation with the children to a single eight-hour period every quarter of the year and to require five days' notice prior to exercising visitation.

         In April 2016, the trial court signed an order in which it found a material and substantial change in the circumstances of the parties since the rendition of the 2013 Order in Suit to Modify the Parent-Child Relationship, confirmed Deena's periods of possession "on the Saturday following the first, third, and fifth Fridays of each month, from 9:00 a.m. to 5:00 p.m. on that same day, with pickup and drop-offs to be at the child's residence[, ]" and required Deena to give Eric at least seventy-two hours' notice of her intent to exercise a period of possession or that period of possession would be waived. Deena appealed the modified judgment.

         Exclusion of Evidence

         Issue one contends the trial court erred "in excluding critical evidence that was presented at trial[.]" To preserve a claim of error on a ruling that excludes evidence, a party must make an offer of proof unless the substance was apparent from the context. See Tex. R. Evid. 103(a)(2). To obtain a reversal of the judgment, the appellant must show that the trial court made an error of law and that the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). In her brief, Appellant identifies the following evidence, which she suggests was erroneously excluded by the trial court: (1) records concerning unpaid taxes, the foreclosure of their home, failure to pay insurance, and unpaid debts; (2) video recordings of Appellee's alienating behavior; (3) alcohol and drug test reports; and (4) insurance cards.

         From the Statement of Facts in her appeal brief, it appears the records concerning household finances concerned events that occurred before the divorce. At one point in the hearing, the trial court sustained Eric's objection to matters that occurred before the date of the last order in March 2013. But, Deena proffered no exhibits and did not make an offer of proof. Furthermore, she provides no authority for holding that the trial court's ruling was incorrect. At no point in the modification hearing did Deena proffer video recordings or test results into evidence. The trial court instructed Eric to remove the insurance card from his wallet and hand it to his attorney and instructed the attorney to photocopy the card for her client and give the original card to Deena. Deena did not request that the insurance card be admitted in evidence. We conclude that the appellant failed to preserve error concerning the exclusion of evidence for review on appeal. See Tex. R. Evid. 103(a)(2). Issue one is overruled.

         Managing Conservatorship and Possession

         Deena combines issues two, three, and four into a single argument focused on the factual sufficiency of the evidence supporting the trial court's decision to retain Eric as the sole managing conservator of the children. She argues there was no evidence that she is an unfit mother, that Eric depends upon his parents and Deena's child support payments to provide the children with shelter, food, and clothing, and that Eric is not sufficiently involved in the children's lives and activities. Also, she argues the evidence does not support making Eric the sole managing conservator or varying from the standard possession order.

         The Texas Family Code sets out guidelines for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator. Tex. Fam. Code Ann. § 153.251(a) (West 2014). There is a rebuttable presumption that the standard possession order provides reasonable minimum possession and is in the best interest of the children. Tex. Fam. Code Ann. § 153.252 (West 2014). In this case, however, the appointment of Eric as the sole managing conservator and the variance from a standard possession order occurred in a previous modification proceeding that resulted in the trial court's 2013 order. That order was not appealed. The issue in the proceeding that is the subject of this appeal is whether "modification would be in the best interest of the child" and the "circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed" since the date of the rendition of the previous order or "the child is at least 12 years of age and has expressed to the court in chambers . . . the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child[.]" Tex. Fam. Code Ann. § 156.101(a)(1)(A), (2) ...

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