Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF C.F.M. AND B.C.M., CHILDREN
Appeal from the 255th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-09-02559
Justices Lang, Myers, and Stoddart
an appeal from the modification of child-custody provisions
in a divorce decree. The modification changed the location
where appellant, Father, was to exercise his supervised
visitation with the children from a facility in Dallas, Texas
to a facility in Olathe, Kansas. Father brings two issues on
appeal contending (1) the evidence was legally insufficient
to support the trial court's determination of a
substantial and material change of circumstances and (2) the
trial court abused its discretion by modifying the judgment.
April 29, 2015, the trial court signed the divorce decree.
The decree provided that Mother was sole managing conservator
and Father was possessory conservator of the children. The
decree stated that Mother would have "the right to
designate the primary residence of the children and exclusive
right to primary physical possession of the children."
The decree did not place any geographic limitations on the
children's residence. The decree provided that
Father's visitation with the children would be supervised
and would take place at Faith and Liberty's Place Family
Center (FLP) in Dallas, Texas, up to one time per week for a
maximum of two hours. However, Father did not exercise his
visitation with the children at FLP and had not exercised any
visitation with the children since July 2012, which was more
than two years before the divorce and more than four years
before the hearing in this case.
2016, Mother and the children moved to the Kansas City area
of Kansas. Mother had a job there, and the children were
enrolled in school there. Father then notified Mother he
intended to exercise his visitation at FLP in Dallas, per the
divorce decree. Mother filed a petition to modify the decree
to provide for Father's visitation to take place in
Kansas, and Father filed a motion for clarification of the
order for possession or access seeking greater specificity in
the possession order so it could be enforceable by
contempt. The trial court held a hearing on the
motions at which Mother testified. Father did not appear at
the hearing, and his attorney did not call any witnesses. At
the conclusion of the hearing, the trial court granted
Mother's motion to modify and denied Father's motion.
The court ordered that Father's supervised visitation
with the children would take place at The Layne Project, Inc.
in Olathe, Kansas. The modification provided that Father
would pay all costs associated with his supervised visits.
requests in this appeal of the modification of the divorce
decree's possession order that we consider the testimony
from the 2014 divorce trial. We decline to do so. "The
appellate record consists of the clerk's record and, if
necessary to the appeal, the reporter's record."
Tex.R.App.P. 34.1. The record of the 2014 divorce trial was
not part of either.
trial court may not consider testimony from a prior
proceeding unless the record of the testimony is properly
authenticated and entered into evidence. Guyton v.
Monteau, 332 S.W.3d 687, 693 (Tex. App.-Houston [14th
Dist.] 2011, no pet.); see also In re C.L., 304
S.W.3d 512, 515 (Tex. App.-Waco 2009, no pet.) ("A trial
judge may not even judicially notice testimony that was given
at a temporary hearing in a family law case at a subsequent
hearing in the same cause without admitting the prior
testimony into evidence." (Quoting Davis v.
State, 293 S.W.3d 794, 797-98 (Tex. App.-Waco 2009, no
pet.))). During the trial of this case, Father asked the
trial court "to take judicial notice of the prior
proceedings in this matter." The trial court stated,
"The Court takes judicial notice of the prior
proceedings in this matter." Father did not offer the
testimony from the divorce trial into evidence. Because the
transcript of the trial testimony from the divorce trial was
not entered into evidence in this modification proceeding,
the trial court did not take judicial notice of it.
Therefore, it was not before the trial court.
asks that we "take notice" of the appellate record
for the divorce proceeding, which is on appeal in a separate
cause before this Court, and he cites to the testimony from
the divorce trial. However, because that testimony was not
before the trial court in this case, we decline to consider
OF ORDERS FOR POSSESSION AND ACCESS
first issue, Father contends the evidence was legally
insufficient to support the trial court's finding that
there were material and substantial changed circumstances
since the divorce decree. Father contends in his second issue
that the trial court abused its discretion by modifying
Father's visitation to take place in Kansas as opposed to
relevant here, a trial court may modify a conservatorship
order only if the circumstances of the child, a conservator,
or other party affected by the order have materially and
substantially changed since the order was rendered and the
modification would be in the child's best interest. Tex.
Fam. Code Ann. § 156.101(a)(1) (West 2014). The party
seeking modification bears the burden of establishing a
material and substantial change in circumstances. In re
C.H.C., 392 S.W.3d 347, 349 (Tex. App.-Dallas 2013, no
pet.). "In considering whether a material and
substantial change in circumstances has occurred, the trial
court compares the evidence of the conditions that existed at
the time of the entry of the prior order with the evidence of
the conditions that existed at the time of the hearing on the
petition to modify." In re H.N.T., 367 S.W.3d
901, 904 (Tex. App.-Dallas 2012, no pet.). Whether
circumstances have materially and substantially changed is a
fact-specific determination that is not guided by rigid
rules. Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex.
App.-Austin 2006, pet. denied). The trial court's
determination must be made ...