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In re B.N.G.

Court of Appeals of Texas, Fifth District, Dallas

August 8, 2019


          On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-56335-2014

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III



         In this suit affecting the parent-child relationship, Nash Gonzales, the plaintiff in the case below, appeals a summary judgment rendered against him. We reverse and remand.

         I. Background

         Gonzales (Father) and appellee Marissa Maggio (Mother) married in 1999[1] and resided in Austin, which is located in Travis County. They have two sons, B.N.G. and G.J.G.[2] In 2011, Mother filed for divorce in Travis County, and Father filed a counter-petition for divorce. In February 2013, a jury trial was held in Travis County District Court. On February 22, the jury determined that Mother and Father should be appointed as joint managing conservators but that Mother should have the exclusive right to designate the children's primary residence. However, the jury also determined that Mother should not be permitted to designate a primary residence outside the State of Texas. On February 25, the district court orally rendered judgment granting a divorce and prescribing conservatorship and residency terms consistent with the jury's verdict.

         In April 2013, Mother moved with the children to Collin County, and Father also relocated there that same month. Back in Travis County, the district court determined the remaining property issues in the divorce proceeding. The court signed a final decree of divorce on August 29, 2013, and an amended/corrected final decree on December 9, 2013.[3] Father appealed the judgment.[4] The Third Court of Appeals affirmed the decree as to the geographic restriction but reversed and remanded, in part, the trial court's award of interest. See Gonzales v. Maggio, 500 S.W.3d 656, 659 (Tex. App.-Austin 2016, no pet.).

         In October 2014, while the appeal in the divorce suit was pending, Father filed a petition to modify parent-child relationship in Travis County District Court, [5] which was the court of continuing jurisdiction.[6] The court transferred the case to Collin County District Court, which was in the county of the children's new residence.[7] Thereafter, Father filed three amendments to his petition to modify. Father's live pleading, his fourth amended petition to modify, [8] alleged that "[t]he circumstances of the children, a conservator, or other party affected by the order to be modified have materially and substantially changed" since the February 25, 2013 oral order divorcing the parties and since the December 9, 2013 divorce decree. See Tex. Fam. Code Ann. § 156.101(a)(1) (providing grounds for modification of order establishing conservatorship or possession and access). According to the petition, "[s]uch circumstances include, but are not limited to," the following: (i) "[Mother] has repeatedly failed to heed the recommendations of medical professionals and educators regarding the children's physical health, emotional health, and educational needs with the effect that [G.J.G.] cannot read and [B.N.G.] has been referred to Children's Hospital for an eating disorder[ ]"; (ii) "[Mother] relocated to Collin County"; (iii) "[Mother] has repeatedly tried to prevent [Father's] participation in extracurricular activities scheduled for the children"; and (iv) "the present living environment and conditions may endanger the physical health and education or significantly impair the emotional development of the children." The fourth amended petition also attached and incorporated an affidavit signed by Father that provided additional details regarding the alleged changes in the children's circumstances. The petition requested, among other relief, that the court (i) grant Father "the exclusive right to determine the children's primary residence" and (ii) assign Father the exclusive parental rights and duties regarding the children's educational, medical, dental, surgical, psychiatric, or psychological needs.[9]

         On February 26, 2016, Mother filed a counter-petition to modify parent-child relationship. She alleged that the December 2013 divorce decree had become unworkable because Father violated the decree by taking the children to the doctor without properly notifying Mother. The counter-petition requested, among other relief, that the court (i) "grant [Mother] the exclusive right to make all medical decisions regarding the children" and (ii) "prohibit [Father] from making any unilateral decisions without [Mother's] written consent relating to medical treatment, testing or diagnosis, [or] psychological or psychiatric counseling decisions related to the children." Mother subsequently nonsuited her counter-petition, and the court signed an order dismissing all of her pending claims without prejudice.

         On June 2, 2017, Mother filed a motion for summary judgment. The motion attached several exhibits in support and urged that no material change of circumstances had occurred since the December 2013 divorce decree. It also asked that the court deny Father's requested modification and award Mother her attorney's fees. Thereafter, Mother filed a first amended motion for attorney's fees, in which she requested a hearing to be followed by an order awarding such fees. The amended motion also requested an award of additional fees should Mother prevail in an appeal.

         The court held a hearing on Mother's summary-judgment motion on July 26, 2017, and a hearing on her fee request on October 23, 2017. The next day, on October 24, the court signed an order that granted both the motion for summary judgment and Mother's first amended motion for fees. The court ordered Father to pay Mother's attorney's fees in the amount of $110, 997.97 for services rendered in the trial court, plus additional fees in the event of an unsuccessful appeal to the Court of Appeals or to the Texas Supreme Court.

         Father filed a motion to reconsider the court's summary-judgment order. The court conducted a hearing on this motion on January 18, 2018, and signed an order that same day denying the motion. Father then perfected this appeal.



         Father raises two issues. His first issue contends that the summary-judgment order was erroneous. We review a trial court's summary judgment ruling de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

         A. Type of Summary-Judgment Motion

         Mother's motion for summary judgment urges, based on evidence attached to, or discussed in, the motion, that "no material change of circumstances has occurred since the rendition of the Amended Decree of Divorce signed on December 9, 2013." Among other evidence, the motion relies on the testimony of Dr. Roger Schorlemer, a pediatrician who treated the children during part of the period subsequent to the February 2013 order. Mother does not dispute Father's contention that her summary-judgment motion is a traditional motion. The district court treated the motion as such, and so will we. Accordingly, Mother, as the movant on a traditional motion, bore the burden of (i) conclusively negating an element of Father's claim or (ii) pleading and conclusively establishing each essential element of an affirmative defense. See Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 717 (Tex. App.-Dallas 2014, pet. denied). We view the evidence "'in the light most favorable to [Father], crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not.'" Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018) (quoting Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).

         B. Scope of Review

         Mother filed twelve exhibits in support of her motion for summary judgment. Father contends that six of these exhibits were not authenticated[10] and four were filed untimely.[11] Mother responds with several arguments as to why, in her view, these exhibits were admissible and are not beyond the scope of our review even though some of them were filed late. We need not address these issues. Even assuming the foregoing exhibits qualified as proper summary judgment evidence, Mother is not entitled to summary judgment, as we discuss below.

         C. Mother's Burden to Negate Father's Claim

         We first consider whether Mother, as the movant, conclusively negated at least one element of Father's modification claim-specifically, the element of a "material and substantial change"

         in circumstances. The statutory provision relevant to this element provides, in pertinent part, that:

(a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.

         Tex. Fam. Code Ann. § 156.101(a)(1) (emphases added). "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.). The existence, or not, of such a change "is a fact-specific determination that is not guided by rigid rules." In re C.F.M., No. 05-17-00141-CV, 2018 WL 2276351, at *2 (Tex. App.-Dallas May 18, 2018, no pet.) (mem. op.); see also In re T.A.M., No. 13-16-00005-CV, 2017 WL 711636, at *4 (Tex. App.-Corpus Christi-Edinburg Feb. 23, 2017, no pet.) (mem. op.) ("In a custody modification proceeding, the trial court is not confined 'by rigid rules,' but conducts a broad, 'fact-specific' inquiry which may encompass any major changes that affect the child's emotional and physical well-being or the parent's ability to support that well- being.").[12]

         As noted previously, Mother's motion urged that no material change in circumstances occurred subsequent to the December 2013 divorce decree. Mother contends that, to obtain a summary judgment, her motion need only address the specific changes alleged in Father's petition. Father responds by noting that his petition alleged changed circumstances that "include, but are not limited to," the circumstances specifically alleged therein. He notes that Mother did not specially except to the petition. See Tex. R. Civ. P. 91; Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (per curiam) ("The purpose of a special exception is to compel clarification of pleadings when the pleadings are not clear or sufficiently specific or fail to plead a cause of action."). Father contends that, because Mother did not do so, she now faces the burden of conclusively negating all possible grounds for a modification.

         As support, Father cites this Court's decision in Bagwell v. BBVA Compass, No. 05-14-01579-CV, 2016 WL 3660403 (Tex. App.-Dallas July 7, 2016, no pet.) (mem. op.). In that case, the defendant, as the summary-judgment movant on its statute of frauds affirmative defense, bore the burden of establishing that the only damages plaintiffs sought and could recover were benefit-of-the-bargain damages. Id. at *6. However, the plaintiffs' damages allegations were conclusory, and the defendant did not file special exceptions to the plaintiffs' pleadings that requested more specificity. Id. at *5-6. Nor did the defendant attempt to prove that the plaintiffs suffered no out-of-pocket damages. Id. at *6. Because of the lack of specificity in the plaintiffs' pleadings regarding the nature of the damages claimed and the possibility that the plaintiffs might be able to allege recoverable out-of-pocket damages, we could not conclude that the defendant conclusively established its statute-of-frauds affirmative defense as to those damages. Id.

         Here, Mother did not specially except to the phrase "include, but are not limited to" in Father's petition. Nor does she point to any evidence in the record-for example, deposition testimony or written discovery responses-in which Father catalogs all of the circumstances to which this phrase refers. Instead, Mother's summary-judgment motion addresses only the purported changes specifically alleged by Father. In this circumstance, we cannot conclude that Mother conclusively established the absence of a material and substantial change in circumstances. In addition, even if Mother were not required to address unpled circumstances subsumed within the foregoing "include, but are not limited to" allegation, we conclude that her motion was nevertheless required to address each of the factual circumstances alleged in Father's petition and to conclusively demonstrate that none of these circumstances constitute a material and substantial change. As explained herein, we conclude that Mother did not meet this burden with respect to the allegation that she moved to Collin County subsequent to the divorce.

         It is undisputed that Mother moved to Collin County with the children in April 2013, and Father followed her there that same month. Mother's move occurred after the court's February 2013 oral rendition of divorce but before the December 2013 divorce decree. The parties dispute which of these rulings should be used as the reference point for determining whether a material and substantial change has occurred subsequent to the order to be modified, as is contemplated by section 156.101. Father urges that the February oral ruling-hereinafter referred to as the February 2013 order-is the pertinent order, and thus the April move qualified as a material and substantial change. Cf. In re K.R.Z., No. 04-14-00876-CV, 2015 WL 4478123, at *2 (Tex. App.-San Antonio ...

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