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Nellis v. Haynie

Court of Appeals of Texas, First District

January 14, 2020

WOODROW ALEXANDER NELLIS, Appellant
v.
MELISSA HAYNIE AND BLAIR HAYNIE, Appellees

          On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2009-62679

          Panel consists of Justices Keyes, Goodman, and Countiss.

          OPINION

          Evelyn V. Keyes Justice

         In this suit affecting the parent-child relationship (SAPCR), Woodrow Alexander Nellis appeals the trial court's order dismissing his petition to modify conservatorship, possession and access, and child support. In four issues, Nellis contends that the trial court erred in dismissing his petition based on its conclusion that there had been no material or substantial change in the circumstances of a party to the suit without affording him the opportunity for an evidentiary hearing.[1]

         We reverse the trial court's order dismissing Nellis's modification petition and remand the case to the trial court for further proceedings.

         Background

         In the underlying suit, Nellis seeks to change the terms of conservatorship, possession and access, and child support for his eleven-year-old son, T.N. Although Nellis's petition includes a request to decrease his child support obligation, the focus of his briefing in both the trial court and on appeal has been on his request to be permitted to spend more time with T.N. than he is afforded under the trial court's order issued six months prior to his modification petition. This order removed Nellis as managing conservator and appointed him possessory conservator, appointed Melissa and Blair Haynie, Nellis's mother and her husband, as nonparent managing conservators, and limited Nellis's time with T.N. to one supervised four-hour visit each month.

         According to Nellis's brief and corroborated by the appellate record, [2] T.N. was born in 2008 to Nellis and Monica Ramirez. Nellis and Ramirez "lived problematic and unstable lives," and Nellis used "illicit drugs."

         Although it is unclear whether Nellis and Ramirez were ever married, the record contains a SAPCR order rendered February 10, 2010, naming Nellis and Ramirez joint managing conservators of T.N., and giving Ramirez the exclusive right to designate T.N.'s primary residence within Harris County. The order also granted Nellis possession of T.N. every first, third, and fifth weekend, as well as Thursday evenings and certain holidays, and ordered him to pay Ramirez $200 in monthly child support.

         On January 1, 2015, Ramirez passed away and T.N. began living with Nellis and the Haynies. Six months later, on June 16, 2015, the Haynies filed a petition to modify the trial court's 2010 order based on Ramirez's death and on allegations that Nellis engaged in activities and behaviors that significantly impaired T.N.'s safety and well-being and had a pattern of committing family violence. The Haynies asked to be named temporary joint managing conservators with the right to designate T.N.'s primary residence, and they asked that Nellis be denied access to T.N., or, in the alternative, that his time with T.N. be supervised. The trial court did not take immediate action on the Haynies' petition to modify.

         On February 15, 2016, after receiving a report alleging that when T.N. did not eat all of his meals Nellis disciplined him by making him take a cold shower and that Nellis was "verbally abusive" and "yell[ed]/raise[d] [his] voice and ma[de] belittling comments" about T.N., the Department of Family and Protective Services (the Department) petitioned the trial court for an order for protection of T.N. Subsequent filings reflect that the Department had also received reports that Nellis would "not wak[e] up in the mornings" to assist in getting T.N. to school, and, as a result, T.N. "has frequently missed school," and that Nellis admitted to using synthetic marijuana and to drinking alcohol. The trial court granted the petition and named the Department temporary sole managing conservator of T.N.

         Six weeks later, after a full adversary hearing, the trial court entered temporary orders appointing the Department temporary managing conservator and requiring Nellis to comply with the Department's Family Service Plan for T.N. 's return. It also ordered that Nellis's visitation with T.N. take place at CPS offices and that T.N. be placed with Melissa Haynie.

         One month later, the Haynies filed a motion to modify the temporary orders. In response, the trial court issued additional temporary orders appointing the Haynies temporary joint managing conservators of T.N. with the Department.

         Six months later, in October 2016, the Department nonsuited its case against Nellis, stating that it "does not desire [or] contemplate a need for it to remain or be appointed as Managing Conservator of [T.N.] and does not desire to pursue this cause of action."

         The record reflects that on January 18, 2018, the trial court commenced a nonjury trial, presumably on the modification petition the Haynies had filed two and a half years earlier. On January 19, 2018, the trial court rendered a modification order that removed Nellis as T.N.'s managing conservator, appointed the Haynies as nonparent managing conservators with the right to designate T.N.'s primary residence within Harris County, appointed Nellis possessory conservator, and limited Nellis's periods of possession and ...


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