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Matusek v. Twine

Court of Appeals of Texas, Third District, Austin

July 16, 2019

Ashley Gail Matusek, Appellant
v.
James Charles Twine, Appellee

          FROM THE 426TH DISTRICT COURT OF BELL COUNTY NO. 288, 320-E, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Kelly

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice.

         Ashley Gail Matusek appeals from the trial court's modification order giving appellee James Charles Twine the right to determine the primary residence of their daughter, Brandy, [1] who was about six years old at the time of trial. We will affirm the trial court's order.

         STANDARD OF REVIEW

         In considering issues of conservatorship and possession, the child's best interest is our primary concern. Tex. Fam. Code § 153.002. As relevant here, a trial court may modify a conservatorship order only if the change is in the child's best interest and if the circumstances of the parents or the child have materially and substantially changed since the order was rendered. Id. § 156.101(a)(1). The party seeking modification has the burden of proof. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.-Austin 2006, pet. denied).

         Because conservatorship determinations are "intensely fact driven," Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002), the trial court is in the best position to observe the witnesses and "can 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record," Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.-Austin 2002, no pet.). We will not disturb a trial court's decision on a motion to modify unless the complaining party shows a clear abuse of discretion. Zeifman, 212 S.W.3d at 587. In an appeal from such a decision, challenges to the sufficiency of the evidence are not independent grounds of error, but instead are relevant when assessing whether the trial court abused its discretion. Id.; In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.-Austin 2005, pet. denied). We ask first whether the court had sufficient information on which to exercise its discretion and second whether it erred in applying its discretion. Zeifman, 212 S.W.3d at 588; Panalez v. Telano, No. 03-14-00675-CV, 2015 WL 7422972, at *2-3 (Tex. App.-Austin Nov. 19, 2015, no pet.) (mem. op.). We will not find an abuse of discretion "as long as some evidence of a substantive and probative character exists to support the trial court's decision." Zeifman, 212 S.W.3d at 587. If the trial court's decision is supported by such evidence, we will not substitute our judgment for that of the trial court. Fox v. Fox, No. 03-04-00749-CV, 2006 WL 66473, at *4 (Tex. App.-Austin Jan. 13, 2006, no pet.) (mem. op.); Echols, 85 S.W.3d at 477.

         In evaluating the evidentiary support for a trial court's findings of fact, we apply the same standards we apply in reviewing a jury's findings. State v. Crawford, 262 S.W.3d 532, 544 (Tex. App.-Austin 2008, no pet.). In reviewing legal sufficiency, we consider the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could have done so and disregarding contrary evidence unless a reasonable fact-finder could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). When a party who did not have the burden of proof challenges the legal sufficiency of the evidence, she must show that there is no evidence or no more than a scintilla of evidence to support the adverse finding. City of Austin v. Chandler, 428 S.W.3d 398, 407 (Tex. App.-Austin 2014, no pet.). When reviewing factual sufficiency, we consider all the evidence and will set aside a finding only if the supporting evidence is so weak as to make the finding clearly wrong and manifestly unjust. Id. The fact-finder is the sole judge of witness credibility and the weight to be given to the testimony, and we may not substitute our judgment on such issues. Id.; Florey v. Estate of McConnell, 212 S.W.3d 439, 445 (Tex. App.-Austin 2006, pet. denied).

         Whether circumstances have materially and substantially changed is a fact-specific determination not guided by rigid or definite rules. Zeifman, 212 S.W.3d at 593. Similarly, "[t]here is no bright-line rule to determine what is in the best interest of the child; each case must be determined on its unique set of facts." Kogel v. Robertson, No. 03-04-00246-CV, 2005 WL 3234627, at *6 (Tex. App.-Austin Dec. 2, 2005, no pet.) (mem. op.) (citing Lenz, 79 S.W.3d at 19).

         PROCEDURAL AND FACTUAL BACKGROUND

         Brandy was born in March 2011. In addition to Brandy, Matusek has two older children from an earlier relationship, and Brandy has always primarily lived with Matusek and those half-siblings. In July or August 2011, when Brandy was three or four months old, Twine moved to Houston for law school. He and Matusek ended their relationship in the summer of 2012. At the time of trial, which began in February 2017, Twine was married to Deah Twine, whom he married in 2016 after dating for several years. Matusek was married to Jason Bauerkemper, whom she married in November 2016, about four months before trial.

         In 2014, the original order in a suit affecting the parent-child relationship (SAPCR) was signed, appointing Matusek and Twine as the child's joint managing conservators, giving Matusek the right to determine Brandy's primary residence, ordering Twine to pay $1, 000 a month in child support, and giving him the right to visitation under the standard possession order. See Tex. Fam. Code §§ 153.3101-.317 (provisions related to standard possession order). The order included a "morality clause" that stated that "no unrelated person of the opposite sex with whom the parent is involved in an intimate relationship shall spend the night when the [child is] in the parent's care," unless the parent is engaged to that person or the clause was waived in writing by the parties ahead of time.

         In August 2016, Twine filed a petition to modify, seeking the right to determine Brandy's primary residence. A two-day hearing was held on February 9 and March 29, 2017, and the modification order was signed in November 2017, giving Twine the right to determine Brandy's primary residence within Williamson County and contiguous counties, ordering Matusek to pay $100 a month in child support, and setting out Matusek's visitation schedule.

         Because Matusek challenges the evidentiary support for several of the trial court's findings, we will summarize the evidence presented at the hearing in some detail.

Matusek's relationships
• Matusek started dating Stefan Demos shortly after she ended her relationship with Twine and when Brandy was about eighteen months old. She and Demos married in 2015.
• In the spring of 2016, Matusek had an affair with Demos's best friend, Cliff Crose, who was married and had children. In June 2016, Crose and Matusek told their spouses about the relationship.
• Matusek filed for divorce from Demos in late July 2016 and began a relationship with Jason Bauerkemper shortly after. She and Bauerkemper got engaged the day after her divorce was finalized in September 2016. Matusek and her children moved in with Bauerkemper soon after the engagement, and Matusek and Bauerkemper married in November 2016.
Matusek takes Brandy to Houston after the affair is disclosed
• After the affair was disclosed, Crose, Matusek, and Matusek's children went to Houston for several days. During that time, Twine texted Matusek to ask if he could pick up Brandy "wherever she is. So you can handle what ever is going on." He said Brandy "doesn't need to be in the middle of all that. Please let me come get her." Matusek refused, responding, "[Brandy] is with me. She's fine. It's not going to be handled overnight and she will be protected. I'm a little insulted that you think I wouldn't make sure of that." Twine replied that he did not know what was going on "but there is obviously some stuff going down. I'd like to make sure [Brandy] is not seeing or hearing anything she doesn't need to be hearing." When Matusek and her children returned from Houston, Brandy went to Twine for his scheduled visitation.
• Matusek told Twine in texts that she "went to Houston because [Crose's wife] threatened to kill herself and then told me I better pray our paths never cross again. . . . I have new guns. One that stays on my hip. It's why no one knows where I'm at but you. . . . [Crose's wife] is psychotic." At trial, Matusek denied that Crose's wife had threatened her and said that she and Crose took their guns with them to Houston "because his wife was threatening to kill herself." Crose said they went to Houston "to get the kids out of-not out of danger, but maybe just away from ...

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