Opinion
No. 02-06-135-CV.
Delivered: September 20, 2007.
Appeal from the 233RD District Court of Tarrant County.
PANEL A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
CAYCE, C.J. concurs without opinion.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. Introduction
Appellant Cheryll H. appeals the trial court's order naming appellee Scott H. sole managing conservator of A.B.H. and L.N.H. In six issues, Cheryll contends that the trial court abused its discretion by sua sponte appointing Scott sole managing conservator of the children, by finding that a material and substantial change in circumstances had occurred warranting the appointment of Scott as sole managing conservator and by finding that it was in the best interest of the children to do so, and by entering findings of fact and conclusions of law in support of its order. We affirm.
II. Procedural and Factual Background
The trial court entered a final decree in Cheryll and Scott's divorce on September 24, 2003. In the decree, the trial court appointed Scott and Cheryll joint managing conservators of their children, A.B.H. and L.N.H. At the time of the divorce, A.B.H., a boy, was six years old, and L.N.H., a girl, was three years old. The trial court granted Cheryll the exclusive right to establish the primary residence of the children within Tarrant County; the right, after consultation with Scott, to consent to medical, dental, and surgical treatment involving nonemergency invasive procedures and to psychiatric and psychological treatment of the children; the exclusive right to receive and give receipt for periodic payment for the support of the children and to hold or disburse these funds for the benefit of the children; and the right to make decisions regarding the children's education.
The decree also gave Scott extended standard possession visitation. It also ordered him to pay child support by wage withholding to Cheryll in the amount of six hundred dollars per month and to provide health insurance for the children. The decree contained specific orders that a change in the then-current day care providers, Scott's parents Mark and Dortha Hall, would constitute a material change in circumstances.
On June 18, 2004, Cheryll filed a petition to modify the parent-child relationship, in particular, the day care provisions for the children and for increased child support. She alleged that Scott's parents were unable to provide childcare for "a number of days each month" when she needed childcare. Therefore, Cheryll alleged that a change in providers would be in the children's best interest.
On July 1, 2004, Scott filed a counterpetition to modify the parent-child relationship. He specifically requested that he be appointed the joint managing conservator with the right to determine the primary residence of the children, or, in the alternative, that he be awarded the independent right to consent to medical, dental, and surgical treatment of the children and the independent right to make decisions concerning the children's education. He also alleged generally that a material and substantial change in circumstances had occurred since the divorce.
On October 13, 2004, the trial court signed temporary orders from a hearing conducted on August 2, 2004. In the temporary orders, the trial court entered a temporary injunction prohibiting the parties from making disparaging remarks about each other in front of the children. It also ordered the day care provider, then Scott's parents, to designate no more than two weeks per year for vacation to be exercised in not less than one week increments. The trial court further appointed Denise Marx, a licensed social worker, to conduct a social study concerning the circumstances and condition of the children and the home of any person requesting managing conservatorship or possession of the children.
Marx's study was dated October 1, 2004. In preparing the study, Marx visited both Scott's and Cheryll's homes, and she interviewed both Scott and Cheryll, as well as A.B.H., L.N.H., Scott's mother, Cheryll's boyfriend, and Scott's sister. She did not visit Scott's parents' home, nor did she interview Scott's then-girlfriend and current wife.
As a result of the study, Marx concluded, "At this point, I do not believe Scott and Cheryll . . . can act together as Joint Managing Conservators to make decisions for the children." She recommended that the trial court name Cheryll sole managing conservator of the children and that Cheryll be permitted to make day care arrangements of her own choice.
Scott amended his counterpetition on May 3, 2005, asking that if the court denied his request to be named the parent with the right to determine the primary residence of the children, the court order visitation in excess of the Texas expanded standard visitation schedule in order to accommodate Cheryll's intent to move the children from west Fort Worth to North Richland Hills. Scott also requested that if the court did not appoint him as the person with the right to determine the primary residence of the children, that the court restrict the geographical location of the children to White Settlement ISD where the children had been attending school.
Cheryll and her then-boyfriend and current husband, Robert Jeter, bought a home in North Richland Hills in January 2005.
The court heard Cheryll's petition and Scott's counterpetition in May and June 2005. At the time of trial, A.B.H. and L.N.H. were seven and five, respectively.
At trial, Marx testified about the conclusions she made following her interaction with the family. Specifically, she concluded that Scott had anger and control issues stemming from the divorce, that Cheryll was merely trying to avoid conflict with Scott, and that Cheryll had not attempted to alienate Scott from the children. Marx testified without objection as to her conclusion that the parties could not work together as joint managing conservators and her recommendation that Cheryll be named sole managing conservator. The social study was offered and admitted without objection, and both sides elicited testimony about Marx's recommendations without objection by either counsel.
Dr. Stroud, the children's dentist, testified as an expert for Scott. He told the court that L.N.H. had had to have her front four teeth pulled out due to decay. Dr. Stroud did not testify as to whose fault the tooth decay was, but he did indicate that in the past he had spoken to Cheryll about not giving L.N.H. a "sippy" cup with sweetened milk to go to bed with. Dr. Rogers, the children's pediatrician, testified that he had diagnosed A.B.H. as morbidly obese; however, he did not attribute the problem to either parent.
A.B.H. was overweight at the time of the divorce decree, but Dr. Rogers did not diagnose him as morbidly obese until after the divorce.
In addition to hearing testimony from Marx and the doctors, the trial court heard testimony from Cheryll, Scott, Jeter, Scott's new wife Jennifer H., Scott's mother Dortha H, and Karen Mooney, L.N.H.'s former teacher. At the close of trial, the court delayed ruling on the conservatorship issues but did order Scott and Cheryll to attend "High Conflict Families" counseling and education.
On August 4, 2005, the trial court issued a letter ruling appointing Scott sole managing conservator of the children and Cheryll possessory conservator of the children. Cheryll was given extended possession and ordered to pay child support. The letter reiterated that both parties were ordered to attend and complete the high conflict families counseling and education course. On January 18, 2006, the trial court entered an order in accordance with the letter ruling. This appeal followed.
III. Trial by Consent
In her first issue, Cheryll contends that the trial court abused its discretion by appointing Scott sole managing conservator when he did not plead for this relief nor request it at trial. Scott responds that the matter was tried by consent.
Rule 301 of the Texas Rules of Civil Procedure provides that the judgment of the court must be supported by the pleadings. TEX. R. CIV. P. 301. The purpose of pleadings is to give an adversary notice of claims and defenses, as well as notice of the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991); Herrington v. Sandcastle Condominium Ass'n, 222 S.W.3d 99, 102 (Tex.App.(Houston [14th Dist.] 2006, no pet.). But when an issue not raised by the pleadings is tried by the express or implied consent of the parties, it is treated in all respects as if it had been raised in the pleadings. TEX. R. CIV. P. 67; see Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).
The party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal. TEX. R. CIV. P. 90; Roark, 813 S.W.2d at 495. Trial by consent is intended to cover the exceptional case in which it clearly appears from the record as a whole that the parties tried the unplead issue. RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex.App.(Houston [1st Dist.] 1997), pet. denied, 989 S.W.2d 363 (Tex. 1999); Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex.App.(Houston [1st Dist.] 1993, writ denied). It is not intended to establish a general rule of practice and should be applied with care, and in no event in a doubtful situation. RE/MAX of Tex., 961 S.W.2d at 328; Stephanz, 846 S.W.2d at 901. To determine whether the issue was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. RE/MAX of Tex., 961 S.W.2d at 328; Stephanz, 846 S.W.2d at 901; see also Beck v. Walker, 154 S.W.3d 895, 901 n. 3 (Tex.App.(Dallas 2005, no pet.).
Cheryll relies on two cases, Binder v. Safady, and In re B.M., for her contention that the trial court abused its discretion by naming Scott sole managing conservator. In Binder, the court held that the trial court reversibly erred by appointing a father sole managing conservator when he did not plead for that relief and because it granted him more relief than he requested in his petition. 193 S.W.3d 29, 33 (Tex.App.(Houston [1st Dist.] 2006, no pet.). The appellate court reversed the trial court order because the appellee's pleading was too general to put the appellant on notice that the appellee would attempt to reduce his child-support arrearages to zero. Id. However, Binder was a default judgment case; thus, it is inapplicable here. See id. at 31-33. In re B.M., likewise, is a default judgment case; thus, it is also inapplicable. See 228 S.W.3d 462, 464 (Tex.App.(Dallas 2007, no pet.).
Here, Marx's social study was offered and admitted without objection. In addition, both parties elicited testimony from Marx as to her conclusion that a joint managing conservatorship was unworkable and her recommendation that Cheryll be named sole managing conservator. Although no witness specifically testified that Scott should be named sole managing conservator of the children, the matter of whether a change from the then-current joint managing conservatorship arrangement was warranted was clearly tried by the parties, and the parties introduced conflicting evidence regarding which parent was better able to make health care, residency, and other decisions regarding A.B.H. and L.N.H. Accordingly, we conclude and hold that the issue was tried by consent. See TEX. R. CIV. P. 67; Beck, 154 S.W.3d at 901 n. 3; RE/MAX of Tex., 961 S.W.2d at 328; Stephanz, 846 S.W.2d at 901. Accordingly, we overrule Cheryll's first issue.
IV. Propriety of Modification Order
In her second through fifth issues, Cheryll contends that the trial court abused its discretion by entering the modification order and by naming Scott sole managing conservator, by finding that a material and substantial change of circumstances had occurred since the divorce, and by finding that naming Scott sole managing conservator was in the children's best interest. In her sixth issue, Cheryll contends that there is legally and factually insufficient evidence to support the trial court's fifth through nineteenth findings of fact supporting its modification order.
A copy of these findings of fact is attached to this opinion for reference.
We review the trial court's modification of managing conservatorship under an abuse of discretion standard. In re T.D.C., 91 S.W.3d 865, 872 (Tex.App.(Fort Worth 2002, pet. denied) (op. on reh'g); see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (applying the same standard of review in original determination of conservatorship). Legal and factual sufficiency are not independent grounds of error in modification cases, but they are relevant factors in deciding whether the trial court abused its discretion. T.D.C., 91 S.W.3d at 872.
The family code authorizes a trial court to modify an order that establishes conservatorship of 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 (Vernon Supp. 2006); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). A court's determination as to whether a material and substantial change of circumstances has occurred is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d 772, 779 (Tex.App.(Fort Worth 2003, no pet.).
A court's primary consideration in any conservatorship case shall always be the best interest of the child. TEX. FAM. CODE ANN. § 153.002 (Vernon 2002); V.L.K., 24 S.W.3d at 342. Courts may use a nonexhaustive list of factors to determine the child's best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); T.D.C., 91 S.W.3d at 872. Those factors include
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley, 544 S.W.2d at 371-72. Courts are not limited to consideration of the Holley factors, however. In re Z.B.P., 109 S.W.3d at 778.
The evidence at trial was sufficient to show that a material and substantial change had taken place in the children's circumstances. Specifically, the parents' ability to communicate with each other and work together in their children's best interest had deteriorated to the point that the caseworker, Marx, concluded that a joint managing conservatorship was no longer feasible. According to Marx,
See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
[i]t appears that the current conflict and high amount of tension between Scott and Cheryll . . . relates to unresolved anger stemming from their marriage. They are acting out that anger in the arena of the children's lives and this is causing harm to all parties. . . . I would expect to see these parties continue to involve the Court in their disputes and power struggles until their children are no longer minors. [Emphasis added.]
In addition, Scott, Cheryll, Scott's mother, Cheryl's fiancé Jeter, Scott's wife Jennifer, Dr. Rogers, and Mooney all testified as to the strained relationship between Scott and Cheryll and its effect on A.B.H. and L.N.H. Scott and Cheryll each testified regarding times they could not work out possession arrangements although each attributed the fault to the other. Even the trial judge remarked at the conclusion of the trial that he thought both parties were using the children as a weapon against each other. See Allen v. Mancini, 170 S.W.3d 167, 170-71 (Tex.App.(Eastland 2005, pet. denied). Furthermore, since the divorce, Scott had remarried, and Cheryll was engaged to be married. Cheryll and Jeter had moved to a new home in North Richland Hills, on the other side of the county from Scott and his parents. See In re Z.B.P., 109 S.W.3d at 780. Accordingly, we conclude and hold that the trial court did not abuse its discretion by finding that a material and substantial change in circumstances had occurred.
Additionally, the evidence supports the trial court's findings that appointing Scott sole managing conservator is in the children's best interest. Marx determined that the situation between Cheryll and Scott was causing harm to all parties. Although Marx concluded that Scott would attempt to shut Cheryll out of the children's lives if given the ability to control the children's residency, she was not privy to all of the testimony and evidence before the trial court. Regardless, having reviewed that evidence, the trial court was within its discretion to agree with Marx's conclusion regarding Scott and Cheryll's strained relationship and its effect on the children, but to also disagree as to which party was better able to act as sole managing conservator. The trial court "is in the best situation to observe the demeanor and personalities of the witnesses and can `feel the forces, powers, and influences that cannot be discerned by merely reading the record.'" In re N.A.S., 100 S.W.3d 670, 673 (Tex.App.(Dallas 2003, no pet.) (quoting In re T., 715 S.W.2d 416, 418 (Tex.App.(Dallas 1986, no writ)).
It appears that the trial court was displeased with both Scott's and Cheryll's behavior.
In addition, the evidence showed that the children had lived in southwest Fort Worth all their lives and had been cared for by Scott's parents since the divorce. Before the trial, Cheryll had moved to North Richland Hills, had enrolled the children in a new day care, and was intending to enroll the children in a new school. Although Scott had also moved to a different school district, he testified that if the children lived with him, they would remain in southwest Fort Worth near his family and that he would continue to use his parents and grandparents for day care. When pressed, A.B.H. did tell Marx that if 50/50 visitation were not possible, he would rather live with his mother; however, there is no evidence of L.N.H.'s wishes.
Cheryll's fiancé Jeter has a residency restriction in his divorce decree for the benefit of his daughter. He and his ex-wife agreed that their daughter could attend Birdville ISD.
Cheryll testified that Scott did not know about the change in day care until trial.
The children had previously attended schools in White Settlement ISD. Before the trial, Scott had moved to Benbrook, where the children would attend Fort Wort ISD schools.
Scott coached his son's basketball and soccer teams and his daughter's soccer team. He also claimed that he took a more active role in getting A.B.H. to exercise and control his weight and that Cheryll did not engage A.B.H. in sufficient physical activity. Scott's mother testified that when the children were with her, they ate a low fat, healthy diet. Scott was also concerned that Cheryll failed to follow the dentist's recommendations regarding L.N.H.'s teeth because although he followed the recommendations, L.N.H.'s teeth got worse and had to be pulled anyway.
Scott testified that A.B.H. had gained weight over the summer since soccer season had ended.
The record is replete with conflicting evidence regarding which party was responsible for the strained relationship between Cheryll and Scott and regarding the best interest of the children. However, the trial court was in the best position to observe the witnesses and weigh the evidence accordingly. And there is sufficient evidence from which the trial court could have determined that it was in the children's best interest that Scott be named sole managing conservator. See City of Keller, 168 S.W.3d at 827; Uniroyal Goodrich Tire Co., 977 S.W.2d at 334; Garza, 395 S.W.2d at 823. Thus, we conclude and hold that the trial court did not abuse its discretion by finding that it was in the children's best interest for Scott to be named sole managing conservator.
Based on our review of the evidence, and for the same reasons set forth above, we also conclude that the trial court's fifth through nineteenth findings of fact are supported by sufficient evidence. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
We overrule Cheryll's second through sixth issues.
Conclusion
Having overruled Cheryll's six issues, we affirm the trial court's judgment.
Appendix to 2-06-135-CV
Trial Court Findings