Court of Appeals of Texas, Third District, Austin
THE 426TH DISTRICT COURT OF BELL COUNTY NO. 288, 320-E, THE
HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
Chief Justice Rose, Justices Triana and Kelly
Rose, Chief Justice.
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,
was about six years old at the time of trial. We will affirm
the trial court's order.
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).
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.
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).
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).
AND FACTUAL BACKGROUND
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
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.
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.
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 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
• 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 ...