Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re C.F.M.

Court of Appeals of Texas, Fifth District, Dallas

May 18, 2018

IN THE INTEREST OF C.F.M. AND B.C.M., CHILDREN

          On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-09-02559

          Before Justices Lang, Myers, and Stoddart

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         This is 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.

         BACKGROUND

         On 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.

         In June 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.[1] 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.

         APPELLATE RECORD

         Father 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.

          A 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.

         Father 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 it.

         MODIFICATION OF ORDERS FOR POSSESSION AND ACCESS

         In his 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.[2] 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 Dallas.

          As 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.