Opinion
04-20-00383-CV
12-29-2021
IN THE INTEREST OF L.S. and W.S., Children
From the 38th Judicial District Court, Uvalde County, Texas Trial Court No. 2018-10-32406-CV Honorable Camile Glasscock Dubose, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
LUZ ELENA D. CHAPA, JUSTICE
Appellant Edward appeals the trial court's modification order rendered after a jury verdict awarding appellee Michelle with the exclusive right to designate the children's primary residence. In several points of error, Edward argues we should reverse the modification order and reinstate the previous order because there was no material and substantial change in circumstances. We affirm the trial court's order.
To protect the identity of the minor children, we refer to appellant by his first name, to appellee by her first name, and to the children by their initials. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8.
Background
In 2015, Edward and Michelle divorced in Bexar County. The divorce decree designated Edward and Michelle joint managing conservators of their two children and granted Michelle the exclusive right to designate their primary residence. Two years later, Edward petitioned to modify the divorce decree for that exclusive right. After a November 2017 trial, a jury awarded Edward that right. The jury added a geographical restriction: The primary residence was required to be within 100 miles of the Bexar County courthouse. Pursuant to the jury's verdict, the trial court orally rendered a modification order on November 14, 2017, and the court, after a hearing on a motion to enter, subsequently signed a written order on March 29, 2018.
Less than a year later, Edward petitioned to modify that order and transfer venue to Uvalde County-the children's primary residence was now in the city of Uvalde. He alleged that circumstances had materially and substantially changed since the previous order. He sought a standard possession schedule, the exclusive right to choose the children's school without restriction to a specific district, and the exclusive right to make decisions regarding psychiatric and psychological treatment of the children. After the Bexar County court transferred the case to Uvalde County, Michelle also sought modification in a counter-petition. The counter-petition alleged that circumstances had materially and substantially changed since the previous order. Michelle also sought the exclusive right to designate the children's primary residence.
After a jury trial, Michelle was awarded the exclusive right to designate the children's primary residence with a geographic restriction of within 100 miles of the Uvalde County courthouse. Edward moved for a judgment notwithstanding the verdict, but the trial court denied the motion. Edward then moved for a new trial, and the motion was denied by operation of law.
Edward timely appealed.
Whether There Was a Material and Substantial Change in Circumstances
A trial court "may modify an order . . . that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if . . . the circumstances of the child[ren] [or] a conservator[] have materially and substantially changed since . . . the date of the rendition of the [earlier] order." Tex. Fam. Code § 156.101(a)(1)(A).
Texas Family Code Section 156.101(a) also requires modification to be in the best interest of the children. Tex. Fam. Code § 156.101(a). However, Edward does not challenge the trial court's best-interest finding.
At trial, Michelle presented evidence of a material and substantial change in circumstances. Some of this evidence included that Edward designated the city of Uvalde as the children's primary residence and he enrolled them in Knippa Independent School District. These decisions, Edward argues, were anticipated during the previous trial and under the previous order. Because the children living in Uvalde and attending Knippa schools were anticipated circumstances, Edward contends they do not constitute a material and substantial change in circumstances. As a result, he contends: (1) Michelle's evidence was legally insufficient to support a material and substantial change in circumstances; (2) the trial court should have excluded the evidence; (3) the trial court should have granted his proposed jury charge on the move to Uvalde; and (4) the trial court should have granted him judgment notwithstanding the verdict based on that evidence.
"Whether a material and substantial change occurred is a question of fact." Nellis v. Haynie, 596 S.W.3d 920, 925-26 (Tex. App.-Houston [1st Dist.] 2020, no pet.). "This fact specific determination is not controlled by a set of rigid guidelines, but instead, is made according to the circumstances as they arise." Id. (internal quotation marks omitted). To demonstrate a material and substantial change in circumstances, the movant must show both the conditions that existed at the time the previous order was rendered "and what material changes have occurred in the intervening period." In re J.R.L., No. 04-19-00049-CV, 2020 WL 2543315, at *3 (Tex. App.-San Antonio May 20, 2020, no pet.) (mem. op.) (internal quotation marks omitted). The movant is not required to show that a material and substantial change negatively affected the child. See In re J.J.L., No. 04-12-00038-CV, 2012 WL 3985798, at *1 (Tex. App.-San Antonio Sept. 12, 2012, no pet.) (mem. op.).
A. The Trial
The parties presented evidence of the circumstances of Edward, Michelle, and the children at the time of the rendition of the Bexar County modification order on November 14, 2017. The children were primarily living with their mother in San Antonio and attending school in San Antonio. Edward maintained a residence in San Antonio too, but he also had a residence in Uvalde with his girlfriend. He remained at the San Antonio residence when he had possession of the children and they attended school.
The Bexar County order granted Edward the exclusive right to determine the primary residence of the children within 100 miles of the Bexar County courthouse. He was also entitled to send the children to a school within his residential district. Each parent was granted possession of the children every other week, and a right of first refusal. The parents were ordered to make joint decisions regarding the children's health, education, and welfare. This required both parents to timely share information and confer with the other parent before making these decisions. The Bexar County trial court appointed a parenting facilitator to work with the parents in making joint decisions because the case was considered "high conflict."
The right of first refusal requires a parent who would be unable to care for the children during their designated time to offer that time to the other parent.
The evidence at trial showed Edward's move to Uvalde was not a material and substantial change in circumstances. Michelle testified it was a material and substantial change in circumstances but also admitted Edward's move there was anticipated before the previous modification order was rendered. Edward presented evidence the move to Uvalde was consistent with the previous modification order because it was within 100 miles of the Bexar County courthouse.
Edward testified Michelle was going to move closer to Uvalde. Michelle testified she did not move closer because she had received a promotion from her employer, the University of Texas at San Antonio (UTSA). With this promotion, Michelle was responsible for lab safety. This responsibility meant she was required to respond on site at UTSA within minutes during lab emergencies.
After Edward moved to Uvalde with the children, he enrolled them in Knippa schools contrary to the Bexar County trial court's order. They began in Knippa schools in January 2018. Edward presented evidence showing he informed Michelle he wanted to enroll them there in November and December 2017 after the trial court rendered the previous order. Michelle testified Edward's decision regarding schooling violated the trial court's order. Edward was required to enroll the children in Uvalde schools-his residential district-under the order. It also required the parents to make joint educational decisions. The schooling decision, according to Michelle, became a joint educational decision requiring her input when Edward chose Knippa schools over Uvalde schools.
Edward presented evidence he was entitled to enroll the children wherever he wanted to enroll them. This evidence consisted of the Bexar County trial court's November 14, 2017 statement, on the record, that Edward would "make the decision" on school and could send the children to a school "based on where he lives or where he wants." However, the court stated during the same hearing "[t]he children shall attend the school wherein dad makes his residence." This latter statement was consistent with the trial court's signed modification order, and Edward conceded he did not comply with it.
During the motion to enter hearing on March 29, 2018, the evidence shows the Bexar County judge asked Michelle if Knippa schools were better and if the children had "transitioned" there; Michelle answered affirmatively. As a result, the Bexar County court ordered it was in the children's best interest for the time being to remain in Knippa schools unless the parents were to agree otherwise. However, the court reiterated that the parties had equal rights in all educational decisions, including changes in schools. The court further stated the parents were going to have to litigate the choice of schools again in the future.
Both parents presented evidence at trial showing W.S. was negatively affected by his removal from his San Antonio school and his enrollment in a Knippa school, as well as by the distance between the residences. W.S. had been a gifted and talented student at his San Antonio school. But at his Knippa school, he had trouble focusing in class, often had his head down, and had anxiety. Edward testified this negative effect on W.S. caused him to file his petition. The parents knew there was a potential to get W.S. additional help by seeking an accommodation at Knippa schools. However, Michelle favored seeking appropriate medical authorization for such an accommodation and Edward did not.
The evidence showed Edward excluded Michelle in other education-related decisions, and Michelle occasionally excluded Edward from school meetings. Without conferring with Michelle, Edward hired tutors for the children. Edward informed Michelle that L.S. was invited to participate in the Duke Talent Identification Program. Although Michelle was happy about it, she told Edward she wanted them to discuss it with their co-parenting facilitator. Edward declined.
The evidence also showed Edward interfered with Michelle's possession and access to the children. Michelle was unable to see the children on W.S.'s December 2017 birthday. That day, Edward picked up the children from their San Antonio school and drove them to Uvalde. Edward did not always communicate with Michelle about the children's activities. This caused Michelle to miss important milestones. She testified she missed one of W.S.'s choir performances and his karate belt test. The evidence showed on at least one occasion Edward failed to honor the right of first refusal. Michelle also testified Edward revealed, during co-parenting sessions, he did not honor the right of first refusal at other times. When Edward and his girlfriend enrolled the children in Knippa schools, they failed for months to designate Michelle as a parent or a contact in case of an emergency. Edward also granted his girlfriend access to the children at school as a natural parent. Both parents excluded each other from meetings at the children's school.
This happened on at least one other school document.
The evidence showed both parents took other measures to interfere with each other's possession because they believed they had to protect the children. Michelle reported Edward to Child Protective Services (CPS) for medical neglect and neglectful supervision. The report was based on Edward's transfer of W.S.'s medication in an unfamiliar bottle, and the purchase of a gun for seven-year-old W.S. Edward confiscated a phone Michelle gave to L.S. for emergencies. When Michelle refused to provide the password, Edward used Chris Forbrick, a technology professional, to hack the device. On the device were, among other things, a few messages between L.S. and her stepfather. Edward thought the messages, which included some "I love yous" with emojis, were inappropriate. Edward testified Forbrick reported the children's stepfather to CPS based on the messages. CPS ultimately closed both investigations without any actions.
Michelle also testified she and Edward agreed, during co-parenting sessions, they would work together to make joint decisions about the children's involvement in activities. They wanted to ensure the children saw they jointly supported their activities. Michelle also agreed not to schedule activities during Edward's possession time. Michelle briefly had the children participate in a few activities without Edward's input. By contrast, Edward enrolled the children in nearly a dozen activities in Uvalde without Michelle's input. Because many of the activities took place during Michelle's possession time, the children often missed them.
After hearing the evidence, the jury was instructed that in order for it to modify the Bexar County order that appointed Edward the conservator with the exclusive right to designate the primary residence of the children, Michelle was required to prove the circumstances of the children, Edward, or Michelle had materially and substantially changed since November 14, 2017. If the jury found the circumstances had changed, it was asked to answer the following question: "Should the [Bexar County] order . . . be modified to designate Michelle [] as the conservator who has that exclusive right [to determine the children's primary residence]?" The jury determined the Bexar County order should be modified and designated Michelle as the conservator with the exclusive right to designate the primary residence of the children. The jury included a geographical restriction of within 100 miles of the Uvalde County courthouse.
B. The Legal Sufficiency of Michelle's Evidence
Edward argues Michelle presented no evidence of a material and substantial change in circumstances. We will sustain a legal sufficiency or "no-evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In a legal sufficiency review, we view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, disregarding contrary evidence unless reasonable jurors could not. Id. We must also indulge every reasonable inference in favor of the finding. In re J.R.L., No. 04-19-00049-CV, 2020 WL 2543315, at *2 (Tex. App.-San Antonio May 20, 2020, no pet.) (mem. op.). A reviewing court cannot substitute its judgment for that of the factfinder, so long as the evidence falls within this zone of reasonable disagreement. Epps, 537 S.W.3d at 243 (citing City of Keller, 168 S.W.3d at 822).
See also Tex. Family Code § 105.002(c)(1)(D) (trial court's decision may not contravene a jury verdict on issue of which conservator has exclusive right to designate the primary residence of child); Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex. 2002) (jury's verdict is subject to ordinary legal sufficiency review); Epps v. Deboise, 537 S.W.3d 238, 242 (Tex. App.-Houston [1st Dist.] 2017, no pet.).
Based on the evidence presented at trial, we cannot conclude there is no evidence supporting the jury's verdict. See, e.g., In re A.J.M., No. 10-14-00284-CV, 2016 WL 936869, at *3 (Tex. App.-Waco Mar. 10, 2016, no pet.) (mem. op.) (concluding evidence that party violated court's order may support finding of material and substantial change in circumstances); In re J.E., No. 02-20-00105-CV, 2021 WL 2753550, at *5-8 (Tex. App.-Fort Worth July 1, 2021, pet. denied) (mem. op.) (concluding evidence presented at trial constituted some evidence of a material and substantial change in circumstances where child was more tired after overnight visits with mother, became more clingy and misbehaved more, mother began taking the child to a counselor without father's consent, and mother believed father and stepmother sought to undermine her involvement in educational decisions by leaving her contact information off of important paperwork); Epps, 537 S.W.3d at 246-47 (concluding evidence sufficient to support jury's determination of material and substantial change in circumstances where evidence showed Epps impaired Deboise's ability to be informed about and contribute to decision-making regarding child's health; interfered with ability to administer medical care; enrolled child in pre-K without Deboise's knowledge; deprived Deboise right to spend time with child by, among other things, failing to honor right of first refusal).
Edward also argues Michelle presented no evidence of a material and substantial change in circumstances because her evidence addressed matters that occurred before March 29, 2018-the date the modification order was signed. However, the order was rendered on November 14, 2017, not March 29, 2018. See Tex. Fam. Code § 156.101(a) (grounds for modification must be based on proof circumstances have materially and substantially changed since "rendition" of order); see also Tex. Fam. Code § 101.026 ("'Render' means the pronouncement by a judge of the court's ruling on a matter.").
Because we conclude the evidence was legally sufficient to demonstrate a material and substantial change, we do not consider whether Edward's statements in his pleading regarding a material and substantial change in circumstances, which were not clear and unequivocal, constituted a judicial admission. See, e.g., Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000).
C. The Exclusion of Edward's Proposed Evidence
Edward argues the trial court erroneously excluded evidence supporting his decision to move to Uvalde and enroll the children in Knippa schools was anticipated during the previous trial. Because it was anticipated, he argues, it was not a surprise and could not constitute a material and substantial change in circumstances. He further argues the exclusion of such evidence probably resulted in the rendition of an improper judgment.
"Evidentiary rulings are committed to the trial court's sound discretion." U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). "A trial court abuses this discretion when it acts without regard for guiding rules or principles." Id. "Even if the trial court abused its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful, i.e., it probably resulted in an improper judgment." Id.
Contrary to Edward's contention, the evidence did include testimony from Michelle showing the move to Uvalde was anticipated during the previous trial. The evidence also showed Edward's decision to enroll the children in Knippa schools was not consistent with the Bexar County order. The order required him to enroll the children in his residential school district. We therefore cannot conclude the trial court abused its discretion by excluding that evidence or that any error was harmful.
Edward also contends the trial court erroneously excluded evidence that Michelle promised the Bexar County court she would move to Uvalde to make the court's ordered possession and access schedule work. However, nothing in the record shows Edward sought to admit Michelle's promise as evidence or that the trial court excluded it. It is therefore not preserved for our review. Tex.R.App.P. 33.1; Tex. R. Evid. 103(a); see In re M.R.H., No. 13-15-00516-CV, 2016 WL 8919846, at *2 (Tex. App.-Corpus Christi-Edinburg Dec. 21, 2016, no pet.) (mem. op.). Even if Edward had preserved it, both parties were bound by the possession and access schedule in the earlier modification order. The evidence also showed Michelle stated she would have to move closer to Uvalde to make the possession schedule work but did not do so after she was promoted at UTSA.
D. The Trial Court's Refusal to Submit Edward's Proposed Jury Instruction
Edward argues the trial court erred by failing to adopt his proposed written jury instruction. The instruction provided:
[T]he move by Edward [] from Bexar County to Uvalde County would not qualify as a material and substantial change for the reason that the move was contemplated at the time of the rendering of [the trial judge's] ruling on November 14th because the move complied with and was authorized by the geographic provision in the original . . . order or within the Court's ruling. Therefore, his relocation without more, cannot be evidence alone to establish a material and substantial change in this case.
Edward argues the instruction was critical to assist the jury for the same reason he argues the excluded evidence should have been admitted: The Uvalde move and the enrollment in Knippa schools were factors both anticipated. He argues the refusal to submit this instruction probably resulted in the rendition of an improper judgment.
A jury instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence. Tex.R.Civ.P. 277, 278. A trial court has considerable discretion to determine necessary and proper jury instructions. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). "When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict." Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). The omission of an instruction is reversible error only if the omission probably caused the rendition of an improper judgment. Id. at 579-80 (citing Tex.R.App.P. 61.1(a); 44.1(a)). "Error in the omission of an issue is harmless when the findings of the jury in answer to other issues are sufficient to support the judgment." Id.
Even if an instruction correctly states the law, if the instruction can be construed as an impermissible comment on the evidence, it is error for the trial court to give the jury the instruction. Briones v. Sharkey, No. 04-11-00584-CV, 2012 WL 3776488, at *2 (Tex. App.-San Antonio Aug. 31, 2012, no pet.) (mem. op.). "An impermissible comment on the evidence occurs when a jury instruction assumes the truth of a controverted material fact, or 'tilts' or 'nudges' the jury in one direction." Daven Corp. v. Tarh E & P Holdings, L.P., 441 S.W.3d 770, 775 (Tex. App.-San Antonio 2014, pet. denied).
Although Edward's requested jury instruction correctly states the law of anticipated events not constituting a material and substantial change in circumstances, its omission is not reversible error. The instruction attempts to tilt or nudge the jury in Edward's direction; it addresses only one of many facts presented to the jury. See Daven, 441 S.W.3d at 775. Even if the omission of the instruction was error, it did not result in the rendition of an improper judgment because the parties presented legally sufficient evidence of other material and substantial changes in circumstances. See Shupe, 192 S.W.3d at 579-80.
We therefore cannot conclude the trial court abused its discretion in rejecting the instruction.
E. The Denial of Edward's Motion for Judgment Notwithstanding the Verdict
Edward argues the trial court should have granted his motion for judgment notwithstanding the verdict because there was no evidence of a material and substantial change in circumstances. Edward's argument is again based on his contention that the jury's verdict was based solely on his move to Uvalde and enrollment of the children in Knippa schools. We review the trial court's denial of a motion for a judgment notwithstanding the verdict under a legal-sufficiency standard. Manjlai v. Manjlai, 447 S.W.3d 376, 379 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). A judgment notwithstanding the verdict is authorized under Rule 301 only when a directed verdict would have been proper. Tex. R. Civ. Pro. 301. "In a jury trial, . . . the court may not contravene a jury verdict on the issue[] of [] the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child." Tex. Fam. Code § 105.002(c)(1)(D). The trial court therefore may not contravene the jury's determination unless the jury's findings are not supported by legally sufficient evidence. Lenz, 79 S.W.3d at 17; Epps, 537 S.W.3d at 242. Because we have already concluded the evidence of a material and substantial change in circumstances is legally sufficient to support the jury's verdict, we cannot conclude the trial court erred by denying Edward's motion for judgment notwithstanding the verdict.
Edward further argues the trial court should have granted his motion because the move to Uvalde and the enrollment of the children in Knippa schools were anticipated under the prior order, and Michelle was collaterally attacking the Bexar County modification suit and order. He argues the Uvalde County order was therefore barred by res judicata and collateral estoppel. If a party seeking to modify a previous modification order does not establish a material and substantial change in circumstances from the date of the previous modification order, the trial court must deny the petition based on res judicata. See In re C.J.C., 603 S.W.3d 804, 818 (Tex. 2020) (orig. proceeding) (Texas Family Code § 156.101(a)(1)(A) "reflects the understanding that the first judgment at the time it was entered was res judicata of the question of the child's best interest and of the custody") (internal quotation marks omitted); Anderson v. Carranza, No. 14-10-00600-CV, 2011 WL 1631792, at *4 (Tex. App.-Houston [14th Dist. Apr. 28, 2011, no pet.) (mem. op.) (citing In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.-Waco 2000, pet. denied)). Because we conclude legally sufficient evidence supported the jury's verdict in favor of Michelle during the
Michelle argues Edward did not assert the affirmative defenses of res judicata or collateral estoppel in his pleading responding to her counter-modification suit, and those affirmative defenses are waived. Michelle is correct that Edward did not raise them in his responsive pleading. Edward first asserted the defenses in support of his motion for a judgment notwithstanding the verdict. However, Michelle did not object to Edward's assertion of res judicata or collateral estoppel in his motion, and Michelle addressed them during oral argument on the motion. Michelle has therefore waived this argument on appeal. Tex.R.App.P. 33.1; See Sheldon v. Sheldon, No. 03-11-00803-CV, 2013 WL 6175586, at *4 n.5 (Tex. App.-Austin Nov. 22, 2013, no pet.) (mem. op.) (citing Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.-San Antonio 2001, no pet.) (affirmative defense not waived where party orally raised it during argument to court and opposing party did not object to lack of pleading)).
Uvalde modification trial, res judicata does not apply. See C.J.C., 603 S.W.3d at 818; Carranza, 2011 WL 1631792, at *4.
Edward further argues collateral estoppel barred the Uvalde modification suit because it was a relitigation of the same issues in the Bexar County modification suit: custody of the children. To bar an action based on collateral estoppel, the movant must prove the following elements: (1) the same fact issue from the first suit is sought to be litigated in the second suit; (2) the fact issue was essential to the judgment in the first suit; and (3) the parties were cast as adversaries in the first suit. In re T.S.S., 61 S.W.3d 481, 485 (Tex. App.-San Antonio 2001, pet. denied).
It is undisputed that Edward and Michelle were both parties to the previous suit. However, the fact issue litigated in the Uvalde County modification suit was not the same as that determined in the Bexar County proceeding. The fact issue the Uvalde County jury was required to determine was whether a material and substantial change in circumstances had occurred since the Bexar County modification order was rendered and whether the previous order should be changed. Collateral estoppel therefore does not apply.
Edward cites In re R.J.P., 179 S.W.3d 181, 185 (Tex. App.-Houston [14th Dist.] 2005) (plurality op.) and In re J.A.C., No. 05-17-00768-CV, 2018 WL 2191604, at *3 (Tex. App.-Dallas May 14, 2018, no pet.) (mem. op.) to support the application of collateral estoppel. R.J.P. addressed paternity, and Texas law is settled that parties are collaterally estopped from relitigating paternity. See R.J.P., 179 S.W.3d at 185-86 (citing cases). J.A.C. involved the relitigation of the same three issues across three states. See J.A.C., 2018 WL 2191604, at *4.
The trial court properly denied the motion for judgment notwithstanding the verdict.
We grant Michelle's motion for leave to file a sur-response to Edward's reply brief.
Conclusion
We affirm the Uvalde County modification order.