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Obernhoff v. Nelson

Court of Appeals of Texas, First District

August 29, 2019


          On Appeal from the County Court at Law Washington County, Texas Trial Court Case No. CCL5068

          Panel consists of Justices Lloyd, Landau, and Countiss.



         Appellant, Katie Schmidt Obernhoff ("Katie"), challenges the trial court's August 22, 2017 Order in Suit to Modify Parent-Child Relationship, entered after a bench trial, granting the counter-petition, filed by appellee, Daron Lynn Nelson ("Daron"), to modify an order in a suit affecting the parent-child relationship. In five issues, Katie contends that the trial court erred in modifying the existing order in a suit affecting the parent-child relationship, relying on the guardian ad litem's testimony and report, failing to disclose its identity when conferring with the minor child, issuing temporary orders, denying an evidentiary hearing related to Katie's motion for new trial, and denying her emergency motion for an evidentiary hearing on Katie's motion for new trial to present newly discovered evidence.

         We affirm.


         In 2004, Katie gave birth to her and Daron's minor child, C.N. On October 15, 2012, the trial court signed an Order in Suit to Modify Parent-Child Relationship (the "2012 order"). The 2012 order appointed Katie and Daron as joint managing conservators and named Katie as the joint managing conservator with the exclusive right to designate C.N.'s primary residence. The order also provided that Katie had the sole exclusive control over a custodial account held for C.N. by Katie and Daron. The funds placed into that account were to be used solely for C.N.'s education, and Katie was required to obtain written permission from Daron to withdraw the funds for any other purpose.

         In her Petition to Modify the Parent-Child Relationship, filed on December 2, 2015, Katie alleged a material and substantial change of circumstances since the 2012 order and that modification of that order would be in the best interest of C.N. In regard to modification, Katie requested that she and Daron be appointed as joint managing conservators, that she be named the conservator with the exclusive right to designate C.N.'s primary residence, and that Daron only be allowed supervised visitation with C.N. because Daron had allegedly been physically abusive toward C.N. Katie requested temporary orders and a temporary restraining order and sought an injunction. In an affidavit attached to her petition, Katie stated that possession of C.N. by Daron would endanger C.N.'s physical health and significantly impair his emotional development. According to Katie, Daron had made verbal threats of abuse directly to C.N., C.N. told Katie that Daron had struck him, which Daron had classified as an accident, and Daron had directed derogatory statements toward C.N. As a result, Katie alleged that C.N. did not want to be in Daron's possession.

         On December 16, 2015, Daron filed a Counter-Petition to Modify the Parent-Child Relationship and a Counterclaim for Enforcement of Possession or Access. Daron alleged a material and substantial change of circumstances since the 2012 order and that modification would be in the best interest of C.N. Daron requested that he and Katie be appointed as joint managing conservators, that he be named the conservator with the exclusive right to designate C.N.'s primary residence, and that he no longer be required to pay child support to Katie. Daron requested temporary orders and sought an injunction.

         On April 19, 2016, after a hearing, the trial court entered temporary orders, appointing Katie and Daron as temporary joint managing conservators, naming Daron as the joint managing conservator with the exclusive right to designate C.N.'s primary residence, and ordering Katie to pay child support to Daron.


         At trial, Katie testified that she is currently married to Erich Oberhoff ("Erich") and has two children, C.N. and Z.O. At the time of trial, C.N. was twelve years old and Z.O. was two years old. According to Katie, Z.O. was born in July 2015 and had colic, which caused her to cry and fuss constantly. Katie described Z.O. as inconsolable. Z.O. also had jaundice and a broken collarbone at birth, and right after Z.O. was born, Katie "went two weeks straight with no sleep." In fact, there were many instances in 2015 when Katie was sleep deprived. Although Z.O. outgrew her colic at about six months old, she was still a "high maintenance" child, which caused stress. Katie explained that it was difficult for her to manage C.N. and Z.O. at the same time, especially because Erich was away from the home for two weeks at a time for work. Katie believed that she was suffering from postpartum depression in 2015. At the time, she felt anxious, stressed, overwhelmed, and hopeless.

         In regard to her mental health history, Katie noted that at times in the past she was treated for depression, although at the time of trial, she stated that she was not suffering from depression.[1] Katie testified that in 2012 she began seeing a counselor, T'Shana Everitt. In October 2012, Katie went to the emergency room because she was depressed and she had attempted to cut herself on her leg with a butter knife. She spent four or five hours in the emergency room and she did not tell her family, although she asked Daron to watch C.N. Katie explained that during that time, and for approximately two years, she did not get along with her parents because she was "going through a lot." She "had Daron back in [her] life, [she] had . . . migraines, health problems, [she] met Erich, [she] lost jobs[, ] and . . . then [she] started having problems with Erich." In 2016, Katie saw another counselor for approximately a month and she saw a psychologist who "gave [her] some sleeping medicine."

         In regard to Erich, Katie explained that when Z.O. was born in July 2015, she and Erich were in a "rocky" and unstable relationship, and they were not married. In spring 2016, after the trial court issued its temporary orders in the instant case, Katie ended her relationship with Erich. Katie explained that the difficulty of raising and taking care of Z.O. had put a stress the relationship.

         Katie further testified that although Erich has never hit her, during the course of their relationship, she called law enforcement officers "on Erich" six occasions. The first time that she called for emergency assistance, Erich went to jail. In that instance, Erich came home angry, started yelling at Katie, and hid her keys and her cellular telephone. When Katie went out to her car to call for emergency assistance, Erich tried to stop her by pulling her out of the car. Katie fell in "sticker burrs," and then ran inside their home, found her cellular telephone, and called for emergency assistance to "come settle [her and Erich] down." C.N. was not present at the time. The second time that Katie called for emergency assistance it was related to a verbal argument between her and Erich, and C.N. was not present. However, the third time that Katie called for emergency assistance, related to a verbal argument between her and Erich, C.N. was present. The last time that she had called for emergency assistance regarding Erich was in November 2015. Katie explained that she and Erich had gotten into an argument and she was scared. In June 2016, Katie requested a temporary restraining order against Erich, and Katie testified that the statements she made in her affidavit attached to her Application for a Temporary Restraining Order and Temporary Injunction were truthful.

         Katie additionally testified that her relationship with Erich has changed since 2015. In July 2016, she and Erich reconciled, and they married in July 2017, shortly before trial. They now have a mutually supportive relationship and do not argue. Katie further explained that, after she and Erich reconciled, they began attending couples counseling sessions once a week with their counselor, Everitt, to "repair[] [the] past and to move on for a healthier future." Eventually, Katie and Erich transitioned to attending counseling sessions once a month. Through counseling, Katie and Erich have started to relate to each other differently and have learned how to handle their disagreements. Although they still argue, it had "been awhile" since they has an argument where they yelled at each other. According to Katie, she and Erich plan to have several more children.

         In regard to Erich's relationship with C.N., Katie testified that Erich has strong affection for C.N. But, when asked whether C.N. had affection for Erich, Katie stated: "It's been rocky because he's been protective of me, but he's a lot better." Katie explained that C.N. was protective of her because he had seen her and Erich argue in the past. However, in Katie's opinion, as her relationship has improved with Erich, Erich's relationship has improved with C.N. because C.N. no longer feels the need to protect her from Erich. Katie wants C.N. to have a good relationship with Erich.

         Katie further testified that she and C.N. have a close relationship. Katie disciplines him and helps him with his homework. After C.N. began living primarily with Daron in spring 2016, Katie would have C.N. do his required reading when he was in her possession, and in fall 2016, Katie took him to a math tutor. Katie does not curse at C.N. or in front of him. She also has lunch with him at school on certain days, and C.N. is glad to see Katie during this time. Katie believes that C.N.'s academics and school behavior are important, but she thinks that C.N.'s emotional and physical well-being is the most important thing. Further, C.N. has a good relationship with Katie's parents and sister, and Katie's mother has helped C.N. with his homework in the past.

         In regard to C.N.'s schooling, in fall 2015, Katie moved C.N. to a public middle school because they had "resource" classes and C.N. was not doing well and getting into trouble at his previous school. Katie testified that C.N. would throw pencils at other students, talk during class, and say curse words, and he told another student that "he was going to get his dad to go over to his house and beat him up." C.N. also had a problem listening to his teachers. As a result of his behavior, C.N. received detention and in-school suspension and he was "written up."

         Upon changing schools, C.N. was placed in a resource math class in fall 2015, and in spring 2016, he was moved into a resource reading class as well. After being in resource classes, C.N.'s grades improved. In Katie's opinion, any misbehavior that C.N. engages in at school is not related to Katie or the time that C.N. spends with her. And according to Katie, in both fall 2016 and spring 2017, C.N. was involved in fights at school, and those fights did not occur on the days that she had lunch at school with him. In spring 2017, Katie called C.N.'s teachers to reach out to them. Katie further stated that she had heard that while C.N. had been living primarily with Daron, C.N. had gone to school without taking his medication in the morning, and he would not turn in his homework.

         In the past, Katie has taken C.N. to visit with her counselor, Everitt, who C.N. trusts and enjoys seeing. While living with Katie, C.N. saw Everitt "off and on." However, since C.N. began living primarily with Daron, he has only seen Everitt nine times.

         Katie further explained that C.N. currently takes medication for Attention-Deficit/Hyperactivity Disorder ("ADHD"), which is prescribed by a psychiatrist. C.N. was diagnosed with ADHD at an early age and has taken medication for several years. Katie, her mother, and Daron's wife, Danielle, took C.N. to see his current psychiatrist in November 2015. Although it took several adjustments to get the dosage correct for C.N.'s medication, C.N. has been on the same dosage since February 2016. Since C.N. began living primarily with Daron in spring 2016, Katie has been to one appointment with C.N.'s psychiatrist, and according to Katie, on one occasion she did not learn of C.N.'s scheduled psychiatrist appointment until the night before. Katie testified that C.N. was easier to discipline in 2016 due to his ADHD medication and not because he had begun living primarily with Daron. Additionally, while Katie had summer possession of C.N. in 2017, she gave him half of his ADHD medication dosage "to try it out" and to see how it helped him because, in the past, a doctor had told her "that's what [she] can do." However, after trying the lower dosage for a day, Katie resumed giving C.N. his full dosage of ADHD medication.

         Katie also noted that in August 2015 she took C.N. to an inpatient psychiatric facility, where he stayed for six nights. Daron and Danielle were "[n]ot fully [aware] at first" with "what was going on" when C.N. was taken to the inpatient facility, but ultimately Katie informed them. The inpatient facility recommended that C.N. be taken off his ADHD medication until he saw a psychiatrist, which C.N. did not do until November 2015. Thus, C.N. was not taking any ADHD medication for approximately three months. Without his ADHD medication in fall 2015, C.N. "act[ed] up" more and was difficult to raise.

         While C.N. was previously in her care, Katie admitted that she had spent "most of 2015 working on [her] relationship with Erich" and "put [C.N.] on the back burner." And she sent C.N. to live with her parents for a considerable amount of time in 2015 because C.N. was comfortable with her parents. However, on one occasion while C.N. was in Katie's home, C.N. told Katie that he was going to the house next door, but instead he "went to the street over and tried to go play on someone's basketball goal." C.N. then walked into an unknown person's house "like he knew [him]," and a firefighter brought C.N. back to Katie. Katie admitted that it was "very hard" for her to discipline C.N. in 2015.

         In regard to C.N.'s extracurricular activities, Katie testified that although C.N. played football in fall 2016, she only attended one game, and she did not take C.N. to practices. Further, Erich was involved in football with C.N. for about a month; because Daron then called Katie and told her that "Erich got kicked off the team," which the coach denied. Katie opined that C.N. did not enjoy football and he was not very good at it.

         Related to C.N.'s relationship with Z.O., Katie stated that C.N. loves Z.O. and likes spending time with her. Katie testified that she can manage both C.N. and Z.O. at the same time now, and she is able to care for C.N.'s needs. Katie, Erich, and Z.O. currently live a home that is owned by Erich. And Katie's parents helped make the down payment for that house. It has "almost five bedrooms," and C.N. would have his own room if he began living primarily with Katie again. However, the home is also "for sale," and she and Erich may move to Austin or "to the country." Katie noted that if C.N. began living primarily in her home again, her sister or mother could help her in an emergency.

         In Katie's opinion, C.N. needs a stable environment and it would be in the best interest of C.N. to live primarily with her. However, since 2012, she has moved multiple times. In 2012, she and C.N. lived with her parents, then she moved to a house on "Moss Road" for two years. Subsequently, Katie and C.N. stayed with Erich's father for a couple of weeks; they "didn't move in," they "just stay[ed] there until [she] figured out where [they] were going." Katie and C.N. then moved back into Katie's parents' home for approximately a year. At some point, Katie also lived, without C.N., in the home of Erich's mother, although she could not recall when that had occurred and for how long she had stayed there. Katie then moved back into her parents' home and subsequently moved into a "rent house in Burton." C.N. lived with her at that time, and they stayed at the "rent house in Burton" for two months. Katie, C.N., and two of Katie's friends then "moved [in]to another rent house in Burton." Katie and C.N. thereafter moved back into Katie's parents' home, and in March 2015, she moved into a home that Erich had purchased. While Katie lived at Erich's home in 2015, C.N. would stay at the house with Katie three or four nights a week on the weeks that Erich was away for work. During the other times, C.N. would stay with Katie's parents because she "just didn't want that conflict around."

         In spring 2016, after C.N. began living primarily with Daron, Katie moved back into her parents' home. And she then moved into the home of her friend, Jessie House, and then back into her parents' home, before finally moving back into Erich's home once they reconciled. Katie testified that C.N. did not stay with her at House's home when he was in her possession, rather she and C.N. would stay at Katie's parents' home during those times. On one occasion, she stayed at a motel with C.N. because they "wanted to just spend time together."

         Katie currently works as a part-time bookkeeper for both her sister's restaurant and another business. Katie earns $12 an hour, and she works approximately twenty hours per week. This is her only source of income. Since February 2016, Katie has received training in phlebotomy and as a certified nursing aide. Within the last year before trial, Katie had a full-time job as a secretary for a business but quit because Z.O. was getting sick frequently at daycare. Katie has been unable to find a job as a phlebotomist, and she has no plans to use her training in phlebotomy to find work in the area. However, Katie enjoys "QuickBooks" and would like to do "some kind of accounting thing." At one point in time, Katie also worked at a nursing home. And since 2012, Katie has worked at a bowling alley, two accounting firms, her sister's restaurant twice, and a mattress store, and she attempted to sell birds on her own and without success. Katie also has "a clothing boutique trailer," from which she is not receiving any income. Katie she has had approximately nine jobs since October 2012, but Erich's income is sufficient to support himself, Katie, and Z.O. Katie's parents pay her child support obligation.

         With respect to Daron, Katie testified that during a November 2015 telephone call (the "November 2015 telephone call") between Daron and C.N., Daron said: "[P]ut that [f]-ing brat on the phone," referring to C.N.[2] Katie stated that the telephone call was not a "setup" by her, and she was "in and out" of the room when C.N. was speaking to Daron because she was caring for Z.O. at the time.

         Katie also stated that she has seen Daron yell at C.N. at times other than just during the November 2015 telephone call. For instance, at a rodeo, C.N. fell off of a horse and Daron was angry and said that "he was going to kill [C.N.]'s horse," which upset C.N. According to Katie, she has seen C.N. act afraid of Daron, but also not act afraid of Daron, i.e., "sometimes he acts fearful and sometimes he acts happy or excited." Further, although Katie did believe that C.N. was afraid of Daron, she admitted that she did allow Daron to see C.N. more often than the terms prescribed by the 2012 order because she was "going through so much for years."

         Katie wants C.N. to have a good relationship with Daron and Danielle. And Katie hopes that Daron wants C.N. to have a good relationship with her; however, at one "drop-off" of C.N., Daron argued with and yelled and cursed at Katie in front of C.N. According to Katie, in two out of ten "drop-off" meetings, Daron has confronted her in some way. And he sometimes "make[s] [her] look bad in front of" C.N. For instance, in fall 2016, Daron yelled at Katie and "told [her] that he under[stood] why Erich left [her] stupid ass," while C.N. was present. Katie noted that she had tried not to disparage Daron in front of C.N., but that Daron had disparaged her on one or two occasions since March 2016. At the time of trial, she and Daron were no longer communicating by telephone or text message. Katie opined that it would be good for C.N. to see his parents communicating in a civil manner. However, Katie also explained that on one occasion when Danielle had asked her to drop C.N. off for a football game, she did not do so because she was "waiting for [Daron] to text [her] about th[e] situation," not Danielle. Katie further noted that while in Daron's care, C.N. got "a huge gash in his foot" that was not properly treated, and Katie took C.N. to the emergency room because it was "swollen black and blue."[3]

         Katie additionally testified that in 2014, she borrowed money from Daron and Danielle because she was depressed. Katie has repaid $2, 000 to Daron, and she intends to pay him the remaining amount owed. Katie also noted that in the past she has taken money out of C.N.'s custodial account for purposes other than C.N.'s education, such as to pay for her monthly expenses. For instance, at one point of time after the 2012 order was entered, Katie signed a lease on a house, but then lost her job. Daron then told her that she could use the funds in C.N.'s custodial account to "finish getting the furniture for [her] home and pay the bills until [she] found a job." And she and Daron had an oral agreement that she would pay back the funds that she took from the custodial account before C.N. turned eighteen years old. Katie stated that she would start repaying the money back into C.N.'s custodial account when "[her] career start[ed] [to] happen[]."[4]

         Mother's Psychological Evaluation

         The trial court admitted into evidence at trial a copy of Katie's May 16, 2017 psychological evaluation completed by Dr. Lawrence Bramlette. At the time, Katie reported that she had graduated from high school and had "obtained a medical assistant degree in 2004." She was not currently employed, and she had last worked at an electrician's office for approximately one month. Katie was terminated from that job because she missed work due to Z.O. being repeatedly sick while at daycare. Katie reported that previously she had worked as a waitress at her sister's restaurant and she had been "let go from th[e] job," while she was pregnant with Z.O., because the restaurant's business was slow.

         Katie denied narcotics use or prescription medication abuse. And she reported that "for the past two and one-half years, she ha[d] consumed 3-4 beers at a sitting once every 3-4 months." Katie denied having a criminal history.

         Related to her mental health history, Katie denied current feelings of a depressed mood, but she also expressed "feeling stressed and anxious and struggling with intermittent feelings of hopelessness." And Katie admitted to experiencing "clinically significant depressive symptoms . . . on multiple occasions." Katie reported that she had been depressed in 2013 and that the depressive episode "lifted approximately two months" before her evaluation. According to Katie, in 2014, she was depressed and "felt [that] no one cared," so she cut herself with a plastic knife because she wanted attention. (Internal quotations omitted.) Katie was taken to the emergency room as a result of the cutting incident. Katie also reported that she had been participating in counseling sessions with Everitt for six years. Regarding "Diagnostic Impressions," the psychological evaluation lists: "Major Depressive Disorder, Recurrent Episodes, In Partial Remission"; "Unspecified Personality Disorder"; "Sexual Abuse of Child" (self-reported); and "Physical Abuse of Adult" (self-reported).

         In regard to Erich, Katie reported that their relationship began in April 2012. Although Katie denied a history of physically assaultive fighting or domestic violence, she stated that she had "called the police on [Erich] on six occasions," and Erich was incarcerated on one occasion "on family violence related charges." Katie denied witnessing or suspecting Erich of abusing, neglecting, or otherwise mistreating C.N. However, Katie stated: "[C.N.] doesn't like it when [Erich] yells at me." (Internal quotations omitted.) Katie and Erich began attending couples counseling sessions with Everitt in August 2016, and at the time of her psychological evaluation, they were attending one counseling session a month.

         Related to her previous relationship with Daron, Katie reported that they had separated approximately eighteen months after getting married and divorced approximately one year later. Katie reported that Daron had "physically abused her on numerous occasions" and that "people saw bruises on [her] all of the time." (Internal quotations omitted.) According to Katie, during one incident, Daron "attempted to suffocate her with a pillow," and another time, he "punched her in the face three times in a row." Katie never reported the incidents of domestic violence. Further, Katie stated that Daron was emotionally abusive toward her and would yell at her. Daron was controlling and would not allow her to work. Daron was "arrested on multiple occasions for violating a protective order," and according to Katie, Daron "abused alcohol on a daily basis."

         In regard to C.N., Katie reported that while he lived primarily with her, he was current on his medical checkups and immunizations. Katie's home was, and continued to be, stocked with food, appropriately furnished, had all utilities, and was "free from unsanitary or otherwise inappropriate living conditions." He was exposed to yelling arguments while in Katie's possession, but he was not exposed to domestic violence or narcotics use. C.N. was not abused or neglected.

         Further, during the 2014-2015 school year, while C.N. lived primarily with Katie, he missed two to three weeks of school because "he didn't feel good" and she "babied him." (Internal quotations omitted.) Katie also reported that C.N. was hospitalized at an inpatient psychiatric facility for six days in August 2015 because "he had flashbacks of [Daron] being mean." (Internal quotations omitted.) According to Katie, Erich yelling at her is what triggered the flashbacks.

         In regard to C.N.'s removal from her care, Katie reported that she had been experiencing significant relationship stress with Erich at the time and she was "putting [C.N.] on the back burner and focusing on Erich . . . too much." (Internal quotations omitted.) During that time, Katie began going out with friends and drinking and she lost her job. Katie also reported that she had borrowed $7, 000 from Daron because she had "become involved with spiritualists," who claimed to practice a variation of witchcraft. (Internal quotations omitted.) The spiritualist told Katie that she needed to pay her $6, 000 to "perform a ritual that would result in positive changes in [Katie's] life." Katie gave the spiritualist $5, 000 and did not hear from her again. Katie stated that she "still owe[d] Daron a lot of money."

         Katie further reported that since C.N. began living primarily with Daron, he had adjusted poorly and was receiving failing grades at school. In Katie's opinion, C.N. was "terrified" of Daron and "hate[d]" Danielle. (Internal quotations omitted.) Katie noted that she was seeking to have C.N. returned to her primary care.

         Related to C.N.'s "specific parenting needs," the psychological evaluation concludes that at a minimum, C.N. requires a stable home environment that is free from significant parenting failures, including parent-sanctioned school absences, volatile relationship dynamics, repeated domestic disturbance calls to law enforcement officers, and erratic parenting behaviors. Because of this, Dr. Bramlette listed the following as areas of concern: Katie's report that she had called law enforcement officers on Erich on six occasions, with Erich being arrested on one occasion, because it indicated a volatile relationship; Katie's report of Erich yelling at her and the distress that it had cause C.N., particularly because Erich's yelling contributed to C.N.'s inpatient psychiatric hospitalization; Katie's report of borrowing $7, 000 from Daron and using the money for a "spiritualist ritual," which constituted erratic behavior and was indicative of poor judgment; Katie's report of cutting herself for attention; Katie's report of repeatedly allowing C.N. to miss school because she "babied" him; and Katie's report of C.N. being "terrified" of Daron and "hat[ing]" Danielle and whether that was leading to parental alienation issues. (Internal quotations omitted.) Should C.N. resume living primarily with Katie, Dr. Bramlette recommended that Katie participate in individual counseling sessions and that Katie, Erich, and C.N. participate in family counseling sessions. Dr. Bramlette lists in the psychological evaluation specific goals for Katie related to psychological functioning and parenting.

         Restraining Order

         The trial court admitted into evidence at trial a copy of Katie's Application for a Temporary Restraining Order and Temporary Injunction filed against Erich on June 15, 2016. In her affidavit attached to her application, Katie testified that she met Erich in April 2012 and they started dating. In September 2012, Katie moved out of her parents' house and into a rental house, and Erich moved in with her. Although their relationship was stable for a couple of weeks, "[a]fter one of [their] first arguments, Erich packed his clothes and left." Erich came home the next morning after the fight, but on many occasions "in the years that [they had] lived together," when Erich would become upset or angry, he would "just pack his bags and say [that] he was done." (Internal quotations omitted.)

         Katie further testified that, early in their relationship, Erich "would take [her] [tele]phone and keys to try and prevent [her] from leaving during an argument." And on one night, in November 2012, Erich came home and started arguing with Katie. He then "tried [to] shov[e] nicotine down [her] throat, pinned [her] down on the bedroom floor, and tried to rip [her] shirt off." When Katie "got away from him," she ran to her car to "call for help." However, "Erich pulled [her] out of [the] driver's seat [of the car] before [she] was able to call." Katie "fell in sticker burs and was covered in them." Katie eventually called for emergency assistance and two law enforcement officers arrived. The officers stated that "they had to take [Erich] in" because he and Katie lived together. Erich later called her "after being booked" and apologized and asked if she "would take him back, again." Katie forgave him and he "promised never to hurt [her] again." In December 2012, Erich's family "started being negative about [his and Katie's] relationship and blamed [Katie] for [Erich] going to jail."

          Moreover, Katie testified that in April 2014, Erich "broke off" his relationship with Katie, and during that time, Katie moved back in with her parents. Despite the separation, Katie became pregnant with Erich's child, Z.O., and they eventually reconciled.

         According to Katie, her father then made a down payment on a home for her and Erich. However, because Katie "didn't have good enough credit to back up the mortgage," the house was put in Erich's name only. Erich and Katie moved into the home in March 2015, when Katie was five months pregnant with Z.O. Erich asked Katie to quit her job and "promised to cover [her] expenses."

         At some point, Erich found a job that required him to be gone for two weeks at a time. When Erich was away for work, he would leave Katie without any money to care for Z.O. Erich also "started wanting to go out all the time," and this made Katie the sole caretaker for Z.O.

         Katie further testified that in November 2015, Erich came to the house late one night wanting to take Z.O. to his brother's home. When Katie told him "no," Erich tried to "snatch her from [Katie's] arms." (Internal quotations omitted.) Katie then "loaded [C.N.] and [Z.O.] in the car to get away from [Erich] because [Katie] could tell that he was getting angry." As Katie buckled Z.O. into her car seat, Erich pulled Katie from the car door. C.N. told Erich to "leave [his] mom and sister alone." (Internal quotations omitted.) And Erich left. Afterward, Erich went back to "behav[ing] well for a few weeks and then [he began] act[ing] threatening" again. Erich ended his and Katie's relationship in March 2016.

         Katie additionally explained that, "Erich displays wildly different behavior. He will threaten [her] and be hateful for [a] couple weeks" and then "act nice." Katie stated that she was afraid of Erich and his unpredictable behavior, and Erich has said "degrading, belittling, and slanderous comments" about Katie. Katie opined that it would not be in Z.O.'s best interest to have unsupervised visitation with Erich "due to his lack of responsibility." And Erich and his family would not be "positive influences in [Z.O.]'s life."


         Erich testified that he is married to Katie and he works on "a drilling rig." Erich met Katie in 2012 and they started living together, along with C.N., a few months after they started dating. They have one child together, Z.O.

         Currently, Erich, Katie, and Z.O. live in a four bedroom house with space for C.N. When they were short on furniture at the house, C.N. may have slept on the couch or in Katie's bedroom while Erich was away. And for a certain unmentioned length of time, C.N. did not have a bed at Erich's house.[5] In the past, C.N. had also lived with Erich and Katie in the home of Erich's father, with all three of them sharing the same room. In another house, where Katie, Erich, and two of Katie's friends lived, C.N. slept in the same room as Erich and Katie. However, according to Erich, C.N. stayed about sixty percent of the time with Katie's parents. Eventually, Erich purchased the home where he and Katie now live, however, Katie's name is not on the deed. Erich noted that at one time in the past, he tried to evict Katie from their home. At the time of trial, Erich and Katie's home was "for sale," and Erich hoped that they would move "somewhere in the country."

         Erich further testified that C.N. is his step-son and they have a good relationship. Erich takes C.N. fishing, and they play basketball and video games together. Previously, Erich helped with C.N.'s football team. When asked whether he had ever physically disciplined C.N., Erich stated: "[M]aybe . . . a handful of times when there ha[d] been times where he[] . . . disrespected [Katie] to the point where[] . . . he wouldn't do what she said." Erich also stated that he had helped C.N. with his homework "a handful of times" and he had eaten lunch with C.N. at school. While he is in Katie's possession, after school, C.N. does his homework, if he has any, and then he has "leisure time" where he plays video games until bedtime.

         In Erich's opinion, C.N. enjoys the time that he spends with Katie and they have a close relationship. Katie is the primary disciplinarian, and she disciplines C.N. by taking away his video games. Further, C.N. responds to Katie's disciplinary tactics, and Katie has control over C.N. However, Erich noted that, in the past, Katie has not always been able to control C.N.'s behavior. In Erich's opinion, C.N.'s physical and emotional well-being would not be impaired if he was to live primarily with Katie.

         In regard to Z.O., Erich explained that she was a difficult baby and he and Katie were stressed after she was born particularly because Erich would leave Katie alone at home with Z.O. for two weeks at a time so that he could go to work. Erich would then return home for two weeks and subsequently leave again for another two weeks. According to Erich, Z.O. would scream "on and off continuous[ly]." The stress of having Z.O. caused "friction" in his and Katie's relationship, and Erich and Katie argued every day. Erich and Katie broke off their relationship in spring 2016, but later reconciled in summer 2016. And he and Katie then began participating in couples counseling sessions together "[t]o fix the problems that [they] were having at the time." Through counseling, he and Katie have learned tools for resolving their "communication issues." Their relationship is strong now, and they continue to attend couples counseling sessions. They do not argue "like [they] used to." Erich estimated that, over the course of their relationship, he and Katie had separated "a handful of times."

         Erich also confirmed that, in the past, he would take Katie's cellular telephone and keys in order to prevent her from leaving during an argument. And on one occasion, he "tried [to] shov[e] nicotine down [Katie's] throat, pinned [her] down on the bedroom floor and tried to rip [her] shirt off." When Katie ran outside to her car to "try to call for help," Erich "pulled [her] out of the driver's seat" and she fell in "sticker burrs." Erich recalled that he was also "put in jail" on one occasion in fall 2012. And another time, C.N. tried to "break up a fight" between Erich and Katie. According to Erich, at that time, Katie was attempting to leave in her car with Z.O., but Erich felt that he had "gone . . . a longer period of time than . . . [he] should have without seeing" his child. Erich went out to the car "to unstrap [Z.O.] out of her car seat," and Katie tried to stop him. C.N. then pushed Erich and appeared scared.

         Erich further testified that he has seen C.N. appear to be intimidated by Daron. And previously when C.N. lived primarily with Katie, he would bite his nails, exhibit nervous ticks, and be generally unsettled when he was going to see Daron. Moreover, Erich has observed C.N. running around the house locking doors, which initially appeared to be out of fear but now has become a routine. On "a handful" of occasions, Erich has seen Daron be verbally aggressive toward C.N. For instance, when C.N. fell off his horse at a rodeo event, Daron walked aggressively over to C.N. and began screaming and cursing. Daron also said that he was going to "kill" the horse, which caused C.N. to become withdrawn. Also, in 2013, Daron grabbed C.N. "pretty hard" and dragged him into the bathroom at a restaurant. C.N. then came out of the bathroom crying. According to Erich, Daron would not always show up for C.N.'s football practices or games, and in Erich's opinion, Daron was resentful that Erich was participating in C.N.'s extracurricular activities.


         Daron testified that he is C.N.'s father, he is married to Danielle, and at the time of trial, Danielle was pregnant with their child. Daron and Danielle also plan on having an additional child in the future.

         Daron owns a trucking company, is self-employed, and works in the oil field industry. Daron has owned his trucking company since 2011, it operates in forty-eight states, and Daron has six employees. At the time of trial, Daron had hired a certain employee so that he would no longer be required to travel out of town as frequently. In the past, Daron would spent approximately three nights a week out of town.[6]

         Currently, Daron, Danielle, and C.N. live in a house in the country. Daron stated that he and Danielle have a "pretty good relationship," although they argue "[p]robably a couple times a month." Daron is not physically abusive to Danielle.

         In regard to his mental health history, Daron testified that he sees a counselor and takes "a bipolar medicine." He last saw his counselor four or five months before trial. Daron further stated that he had been diagnosed with ADHD and has taken medication for his ADHD in the past. According to Daron, he has anger management issues, but he takes medication to make him calmer.[7] And Daron, in the past, has had problems with impulse control when dealing with people.[8] Daron believes that he has his anger management issues more in control than he has in the past. However, he becomes mad if Katie calls him multiple times. When Daron is overwhelmed, he feels "stressed out." Daron consumes a "six-pack" of beer every two weeks approximately.

         Related to C.N., Daron stated that after the 2012 order was entered, he saw C.N. more often than the order prescribed. However, when Daron would see C.N., who was living primarily with Katie at the time, he would notice that C.N. had poor hygiene. C.N. was not bathing, brushing his teeth, using deodorant, and could not tie his shoes. After C.N. began living primarily with Daron, he learned to do daily chores, which include feeding their animals, cleaning his room, making his bed, and sweeping the floor. C.N.'s demeanor in Daron's home is "[g]ood" and "[a]mazing," and he is respectful. C.N. and Daron like to go "trucking" and hunting together. During the summer before trial, C.N. traveled with Daron, and he attended a basketball camp. Daron has seen improvement in C.N. since he began living primarily with him. Daron has talked to C.N. about the new baby that Daron and Danielle are expecting, and C.N. is excited to have a new sibling.

         Since C.N. has been living primarily with Daron, Daron helps him with his homework when Daron is not working, but Danielle helps him with his homework "[a]ll the time." In Daron's opinion, he helps C.N. with his homework about twenty percent of the time, while Danielle helps C.N. the remaining eighty percent of the time. Currently, C.N. is in two resource classes at school and has friends, although C.N. did get into a couple of fights at school in spring 2017.

         Daron further testified that he and Danielle are both responsible for seeing that C.N. takes his ADHD medication. C.N.'s behavior has improved, and he is "doing a lot better" since adjustments were made to his ADHD medication. Although C.N. is not "bad" when he is not taking his medication, a person has "to have control of him." According to Daron, when C.N. is living primarily with him, he is "fine" regardless of whether he is on ADHD medication or not. However, the ADHD medication helps C.N. listen at school. Daron noted that he and C.N. went to three counseling sessions together after C.N. began living primarily with Daron, and the counselor that they saw said that they had "nothing really to discuss anymore" and that they were "doing great." Daron has paid for C.N.'s medical insurance since birth and plans to continue paying for it.

         Related to C.N.'s extracurricular activities, in fall 2015, Daron went to a lot of C.N.'s football games, although he may have missed some practices because of work. Daron was unable to attend C.N.'s school award ceremony because he was out of town, but he attended many of C.N.'s basketball games. And Danielle attended all of C.N.'s basketball games. Since C.N. began living primarily with Daron in spring 2016, Daron has enrolled him in football and basketball. C.N. is also planning on "showing" a heifer.

         In regard to the November 2015 telephone call, Daron stated that during the telephone call, he told Katie to "put that [f]'ing brat on the phone," he "threatened to put [C.N.] on his knees for three hours," and he accused C.N. of laughing.[9]According to Daron, he made the statement about having C.N. stand on his knees, as a form of discipline, in reference to an upcoming visit that C.N. was to have with Daron, but he never was actually going to do that to C.N. Daron explained that Katie had called him eleven times on the day of the November 2015 telephone call, he believed that she was "harassing" him and "setting [him] up," and Katie was the person who initiated the November 2015 telephone call. In any event, Daron admitted that he had "made a mistake" speaking in such a manner to C.N.

         Daron also explained that, at a past rodeo event, when the event was running late, he wanted to take C.N. home. Daron ended up picking C.N. up and carrying C.N. to his truck. Further, on another occasion, C.N. fell off of his horse at a rodeo event, and Daron rushed over to him and said something like that he wanted "to kill the horse," although Daron did not recall actually using the word "kill." Daron stated that he had never made disparaging remarks about C.N. in C.N.'s presence.[10]

         In Daron's opinion, C.N. needed discipline, which Daron does typically by talking to him, "taking his [video] games away," and not allowing C.N. "to ride the Ranger."[11] Daron stated that, in the past, his own behavior has contributed to C.N.'s behavioral issues and he had, in the past, told Katie to "whoop [C.N.'s] ass" if she called him needing disciplinary advice. According to Daron, while C.N. lived primarily with Katie, Katie would call Daron every week and ask him to discipline C.N. over the telephone, and Katie had expressed concerns about being unable to control C.N.

         Daron further testified that C.N. loves Katie and has a close relationship with her. And when asked whether C.N. wants to live with Katie, Daron stated: "One minute he does, and the next minute -- it depends." C.N. "wants to make everybody happy," and he will tell Daron "what [Daron] want[s] to hear," just like he does with Katie. In Daron's opinion, C.N. likes living with Daron because C.N. appreciates the structure at Daron's house and he "has everything at [Daron's] house." And Daron believes that C.N. should continue living primarily with him. C.N. does not fear Daron, and C.N. has a bond with Daron's father, although Daron admitted that C.N. is closer with Katie's parents. Daron explained that C.N. should spend a lot of time with Katie, but "[s]he needs to step up to the plate and do her job."

         In regard to Erich, Daron stated that law enforcement officers had been called regarding Erich six times.[12] And when asked whether he wanted C.N. to have a good relationship with Erich, Daron stated: "As long as he do[es not] put his hands on [C.N.] like he did."

         Moreover, Daron testified that he had previously deposited $12, 000 into C.N.'s custodial account to be used for C.N.'s education. And he had never signed an agreement that permitted Katie to use the funds in C.N.'s custodial account for her own personal use. However, he did verbally tell her when she was unemployed that she "could take some money out" to buy furniture for C.N. and then repay it. At the time of trial, there were no funds remaining in C.N.'s custodial account, and Daron explained that he had never taken any money out of the account. Further, according to Daron, he had loaned Katie approximately $7, 000 since 2012.

         Daron requested that the trial court allow C.N. to remain living primarily with him, where C.N. had been living for the previous sixteen months, and that Daron be named as the joint managing conservator with the exclusive right to designate C.N.'s primary residence.

         Father's ...

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