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In re M.C.K.

Court of Appeals of Texas, Fourteenth District

April 26, 2018


          On Appeal from the County Court at Law No. 4 Williamson County, Texas Trial Court Cause No. 11-3113-FC4

          Panel consists of Chief Justice Frost and Justices Christopher and Jamison.


          Tracy Christopher Justice.

         The dispute in this family law case is who should have the right to make educational decisions for the child. Mother was awarded that right exclusively when the child was just a baby. Once the child became school-aged, Father sought to share in that right because he disagreed with Mother's choice of homeschooling.

         The issue was tried to the bench, and the trial court sided with Father. The trial court modified the parent-child relationship by granting both Mother and Father the right to make educational decisions for the child. The trial court further ordered that if Mother and Father cannot come to a consensus, then the child must attend public school.

         Mother now appeals from the trial court's order, arguing that the order does not conform to the pleadings and that the evidence is insufficient to support a modification. For the reasons explained below, we overrule Mother's arguments and affirm the trial court's order.


         To understand Mother's complaint about the pleadings, we must first explain the procedural history of this case, which is somewhat lengthy.

         Shortly after the child was born, the Attorney General's Office initiated an action to establish the parent-child relationship. In that action, the trial court determined that Mother and Father were the child's parents, and the court named both of them joint managing conservators, with Mother receiving the exclusive rights to determine the child's residence and to decide matters relating to the child's education. At the time of the order establishing the parent-child relationship, the child was approximately nine months old.

         That original order was modified at Mother's request when the child was approximately fifteen months old. The modification only addressed the terms of Father's possession and access.

         When the child was one month shy of her fourth birthday, Father filed a motion to enforce the modified order, alleging that Mother had refused to surrender the child for Father's scheduled period of summer visitation. Father asked for makeup visitation and that Mother be held in contempt, jailed, and fined. He did not request any modification of the education right.

         Mother responded with a petition to modify the parent-child relationship. She alleged that circumstances had materially and substantially changed because the child had returned home from visitation with genital bruising, and because Father had recently been charged with the sexual assault of an unrelated adult woman. Mother requested the trial court to appoint an amicus attorney for the child and to order supervised visitation for Father.

         As the child was approaching her fifth birthday, the parties attended mediation, with an amicus attorney in attendance. Several issues were addressed in the mediation that had not previously been pleaded. All of the issues were resolved in a mediated settlement agreement, with the exception of four issues, which the parties expressly reserved for trial. Those issues were whether Father should be subject to random alcohol testing, whether Father owed any outstanding uninsured medical expenses, whether Father was entitled to make-up visitation, and whether the child should be homeschooled.

         Mother requested, and the trial court granted, an interim order that incorporated the terms of the MSA. The interim order was issued one month before the school year was set to begin, and in it the trial court clarified that Mother has "the exclusive right to make decisions concerning the child's education as contained in the prior order, unless modified at final trial."

         The trial was set a few months into the new school year, not long after the child had turned five. On the morning of trial, Mother objected to trying the education issue because Father had no pleadings on file requesting a modification of the education right. Father responded that he and Mother had reserved that issue for trial in the MSA. Father also explained that, if necessary, he would move for a continuance to file an amended pleading. The amicus attorney recommended that the education issue should be tried because all parties were on notice of that issue after the MSA was entered.

         The trial court agreed with Mother that there was a defect in the pleadings, but the court also suggested that a continuance would not be in the best interest of the child. Recognizing further, however, that Mother had recently retained a new attorney who might not be prepared to try the education issue, the trial court presented Mother with an option: either try the education issue that day; or reset the hearing for another date, allowing Mother's attorney more time to prepare, if necessary, and giving Father an opportunity to cure the defect in the pleadings.

         The trial court recessed the hearing for Mother to consult with her attorney, and after the recess, Mother's attorney proposed a conference in chambers, with just the lawyers and the judge. All parties assented to the chambers conference, and when it ended, the attorneys announced a tentative agreement regarding the four issues that the parties had reserved for trial. On the education issue, the tentative agreement called for the child to continue to be homeschooled, but only through kindergarten.

         After the tentative agreement was announced, Father's attorney indicated that there may have been a misunderstanding about the year in which the child was scheduled to finish kindergarten. The trial court recessed the hearing again for the attorneys to confer with their clients. At the end of the recess, the trial court was advised that Mother and Father could not agree on the education issue, which would need to be tried.

         When the trial court called for the first witness, Mother objected once more that Father had no pleadings on file requesting a modification of the education right. Father then orally moved for a trial amendment, pointing out that Mother could not assert that she was surprised by the unpleaded education issue, given that it was addressed in the interim order that Mother herself had requested.

         Mother replied that her concern was for the burden of proof, not the element of surprise, for which she conceded there was none. Mother explained that, by filing her own petition to modify, she had already made a judicial admission of a material and substantial change. But Mother insisted that her judicial admission related to issues other than the education issue, and Mother argued that ...

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