in the Interest of A.D , 474 S.W.3d 715 ( 2014 )

Affirmed and Opinion filed May 6, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00914-CV
IN THE INTEREST OF A.D.
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Court Cause No. C-206,829-B
OPINION
In five issues, Sommer Douga appeals two aspects of a conservatorship
order concerning her minor daughter, A.D.: (1) appointment of the father, Cayne
Douga, as conservator with the exclusive right to designate A.D.’s primary
residence; and (2) the order that Sommer’s possession be supervised. We affirm.1
1
This case was transferred to our court from the Beaumont Court of Appeals; therefore,
we must decide the case in accordance with its precedent if our decision would be otherwise
inconsistent with its precedent. See Tex. R. App. P. 41.3.
I. BACKGROUND
Sommer and Cayne were divorced in July 2010 in Jefferson County, Texas.
In the divorce decree, the trial court (1) appointed the parents as joint managing
conservators of A.D., who was less than two years old, (2) gave Sommer the
exclusive right to designate A.D’s primary residence, and (3) rendered a standard
possession order for Cayne. After the divorce, Sommer and A.D. resided in Buna,
Texas (Jasper County), and Cayne resided in Nederland, Texas (Jefferson County).
In December 2010, Sommer reported to authorities a suspicion that Cayne
had sexually abused A.D. during his visitation. An investigation, concluding in
February 2011, “ruled out” the allegation. During the investigation, Sommer
withheld Cayne’s visitation and was subsequently placed on probation for
contempt. Sommer also retained a personal-injury attorney, who took Cayne’s
deposition, in which he denied the allegation. Sommer then persisted for more
than a year in accusing Cayne of sexually abusing A.D. although authorities and
professionals continued to determine the allegations were unfounded.
Meanwhile, in February 2011, Cayne filed a petition to modify the decree
(named a “counter-petition” because Sommer had filed her own petition, which she
later dismissed). Cayne requested the right to designate A.D.’s primary residence.
Several months later, Cayne filed a supporting affidavit, alleging Sommer was
endangering A.D. by perpetuating the false accusations. Sommer filed a motion to
dismiss Cayne’s petition, which the trial court denied.
Additionally, shortly after the first accusation was ruled out and while the
petition for modification was pending, Cayne requested temporary orders for
A.D.’s safety. The trial court denied the motion. However, in December 2011, the
trial court granted Cayne’s second motion for temporary orders, after the
accusations persisted. The court appointed Cayne temporary sole managing
2
conservator with the right to designate A.D.’s primary residence and ordered that
Sommer’s visitation be supervised by Cayne at his residence. The temporary order
remained in effect until trial of Cayne’s petition to modify, except for a brief
period in which the court lifted but then reinstated the restriction that Sommer’s
visitation be supervised. Further, throughout the course of events, the trial court
ordered the parties to counseling or psychological examinations at various times.
A jury trial commenced in August 2012. The jury found that the divorce
decree should be modified to appoint Cayne as conservator with the exclusive right
to designate A.D.’s primary residence. At a post-trial proceeding, the trial court
announced it would order that Sommer’s possession continue to be supervised.
The trial court signed an order (1) retaining both parents as joint managing
conservators but giving Cayne the exclusive right to designate A.D.’s primary
residence, (2) ordering that Sommer’s weekend possession be supervised at a
facility named “The Clubhouse” and her mid-week possession be supervised at
Cayne’s residence or a place of his choice, and (3) ordering Sommer to pay child
support.
II. REFUSAL TO DISMISS CAYNE’S PETITION TO MODIFY
In her first issue, Sommer contends the trial court erred by refusing to
dismiss Cayne’s petition to modify. Sommer moved to dismiss on the ground that
Cayne failed to comply with Texas Family Code section 156.102, which provides:
(a) If a suit seeking to modify the designation of the person having the
exclusive right to designate the primary residence of a child is filed
not later than one year after . . . the date of the rendition of the order . .
. , the person filing the suit shall execute and attach an affidavit as
provided by Subsection (b).
(b) The affidavit must contain, along with supporting facts, at least
one of the following [three] allegations:
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(1) that the child’s present environment may endanger the
child’s physical health or significantly impair the child’s
emotional development; [the allegation at issue in the present
case] . . .
(c) The court shall deny the relief sought and refuse to schedule a
hearing for modification under this section unless the court
determines, on the basis of the affidavit, that facts adequate to support
an allegation listed in Subsection (b) are stated in the affidavit. If the
court determines that the facts stated are adequate to support an
allegation, the court shall set a time and place for the hearing.
Tex. Fam. Code Ann. § 156.102 (a)–(c) (West 2014).
Section 156.102 was designed to promote stability in conservatorship of
children by discouraging relitigation of custodial issues within a short period after
the custody order, through a heightened standard of verified pleading. Burkhart v.
Burkhart, 960 S.W.2d 321, 323 (Tex. App.—Houston [1st Dist.] 1997, pet.
denied). To evaluate the sufficiency of the affidavit, the trial court must determine
whether the sworn facts, if true, justify a hearing on the motion to modify. Id.
Our court and some sister courts have reviewed a trial court’s ruling on
whether a petitioner complied with section 156.102 for abuse of discretion, and we
have found no conflicting standard from the Beaumont Court of Appeals. See
Stashak v. Stashak, No. 14-02-00700-CV, 2003 WL 21230406, at *2 (Tex. App.—
Houston [14th Dist.] May 29, 2003, no pet.) (mem. op.); see also In re D.W.J.B.,
362 S.W.3d 777, 780 (Tex. App.—Texarkana 2012, no pet.); Burkhart, 960
S.W.2d at 323.2 A trial court abuses its discretion if it acts without reference to
2
But see In re C.S., 264 S.W.3d 864, 872–73 & n.6 (Tex. App.—Waco 2008, no pet.)
(applying de novo standard, reasoning challenge to affidavit is tantamount to plea to the
jurisdiction challenging plaintiff’s pleadings). Although we will apply the abuse-of-discretion
standard, our decision would be the same under the more stringent de novo standard.
4
any guiding rules or principles or its decision is arbitrary or unreasonable. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
In the affidavit, Cayne averred:
I had visitation with [A.D.], on the weekend of December 3,
2010.
Thereafter, on December 9, 2010, I received a telephone call
from Detective Ben Hanks of the Nederland Police Department telling
me that my ex-wife, [Sommer], had accused me of sexual assault
against [A.D.] during my Thanksgiving weekend possession.
Detective Hanks asked that I go in and speak with him and I
immediately left my office and went in and talked to Detective Hanks.
I spoke with Detective Hanks over the telephone a few times during
the next week. About one week later[,] I received a phone call from
Detective Hanks saying that the case was unfounded and he was
closing the case.
I began trying to contact Sommer by telephone and text
concerning my visitation (which included visitation for the Christmas
holidays) with my daughter. I continuously tried to contact Sommer
and never received a response.
On January 26, 2011, my attorney filed a Motion for
Enforcement because I had not seen [A.D.] and Sommer would not
call me back. Sommer was served on January 31, 2011.
Thereafter, I received notice that Sommer had filed a Petition to
Take Deposition to Investigate Potential Claim or Suit on me for
sexual assault of [A.D.]. This petition was sent to my attorney and I
was contacted by my attorney’s office.
On February 7, 2011, Sommer filed a Motion to Modify Decree
and my attorney filed a Counterpetition to Modify Decree on my
behalf.
Sommer continues to assert that I committed sexual assault
against [A.D.]. To this day[,] my family continues to receive text
messages from Sommer’s mother saying that I am a sexual molester
and Sommer continues to spread rumors throughout Buna that I am a
sexual molester. Sommer continues to bring [A.D.] to the same
daycare facility that she has been going to. Sommer has brought
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[A.D.] to the Garth House for evaluation. Sommer also filed a case
against me with Child Protective Services on December 7, 2010
alleging physical abuse and sexual abuse against [A.D.]. The report
of Child Protective Services reported the finding “ruled out”.
Sommer has also had [A.D.] examined by her pediatrician . . . and 2
SANE nurses. I feel that this continued harassment against me is
causing stress and trauma to my 2-year old daughter. [Sommer’s]
actions present a clear and present danger to the child’s safety and
welfare. 3
According to Sommer, the averment that she reported her suspicions of
abuse did not allege “the child’s present environment may endanger the child’s
physical health or significantly impair the child’s emotional development.” See
Tex. Fam. Code Ann. § 156.102(b)(1). Sommer argues that instead (1) such
actions would be viewed as responsible parenthood, and (2) any “harassment” of
Cayne did not translate into “stress and trauma” to A.D.
However, the crux of the affidavit was not just that Sommer reported her
suspicions but that she continued to make false accusations that Cayne sexually
abused A.D. Additionally, Cayne essentially alleged Sommer was engaging in
such conduct because Cayne attempted to enforce his visitations rights. Moreover,
the trial court could have found that Cayne sufficiently alleged Sommer’s behavior
may significantly impair A.D.’s emotional development because (1) the two-year-
old may be subjected to more sexual-assault (“SANE”) examinations, and (2) there
3
As noted above, Cayne filed his affidavit several months after his petition—but before
Sommer filed her motion to dismiss. Regardless, the trial court properly construed the affidavit
as amending the petition, as permitted under the procedural rules, and thus Cayne “attach[ed]” an
affidavit to the petition. See Tex. R. Civ. P. 62, 63; see also Tex. Fam. Code Ann. § 156.004
(West 2014) (providing Texas Rules of Civil Procedure applicable to original suit apply to suit
for modification of a conservatorship and possession order); In re E.R.L.C., No. 05-06-01203-
CV, 2008 WL 274058, at *2 (Tex. App.—Dallas Feb. 1, 2008, no pet.) (mem. op.) (holding that,
although original petition to modify lacked requisite affidavit, trial court properly held hearing
because amended petition with supporting affidavit was filed seven days before hearing).
6
is a general harm inherent in the child being the subject of the false accusations and
used as a weapon in a custody dispute.
Sommer also suggests the trial court’s finding conflicted with its remark
when previously denying Cayne’s first motion for temporary orders: “I do not feel
that the child is in danger.” We disagree. To temporarily change which person has
the right to designate residency while a suit for modification is pending, the trial
court must find, inter alia, that “the order is necessary because the child’s present
circumstances would significantly impair the child’s physical health or emotional
development.” See Tex. Fam. Code Ann. § 156.006(b)(1) (West 2014) (emphasis
added). In contrast, the inquiry relative to the section 156.102 affidavit is whether
it alleges facts showing “the child’s present environment may endanger the child’s
physical health or significantly impair the child’s emotional development.” Id. §
156.102(b)(1) (emphasis added). There is no requirement that the petitioner prove
the allegations in the affidavit in order to obtain a hearing on the motion for
permanent modification. See id. Therefore, the trial court’s finding of no danger
when denying Cayne’s first motion for temporary orders did not negate the trial
court’s decision that Cayne’s affidavit was sufficient to justify a hearing on his
petition for permanent modification. We overrule Sommer’s first issue.
III. MODIFICATION OF CUSTODY
We will next consider Sommer’s fifth issue because the evidence on this
contention is also relevant to some other issues. Sommer contends the trial court
abused its discretion by modifying the divorce decree to give Cayne custody.
Sommer presents her complaint as though the trial court served as fact finder on
the issue. However, the trial court was required to effectuate the jury’s verdict.
See Tex. Fam. Code Ann. § 105.002 (c)(1)(D) (West 2014). Accordingly, we will
treat Sommer’s complaint as challenging sufficiency of the evidence to support the
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jury’s finding. See Corrales v. Dep’t of Family & Protective Servs., 155 S.W.3d
478, 488 (Tex. App.—El Paso 2004, no pet.) (recognizing abuse-of-discretion
standard ordinarily applicable when trial court decides conservatorship issues does
not apply when issue is submitted to a jury and instead its findings are subject to
traditional sufficiency review).
The trial court submitted the following jury charge, in pertinent part:
For the Order that designates [Cayne] or [Sommer], as Joint
Managing Conservators with the exclusive right to establish the
primary residence of the child to be modified, it must be proven that:
1. The circumstances of [A.D.], [Cayne] or [Sommer], have
materially and substantially changed since July 20, 2010; and
2. The appointment of [Cayne], as the conservator who has the
exclusive right to designate the primary residence of [A.D.], in place
of [Sommer], would be in the best interest of [A.D.].4
QUESTION 1
Should the order that designates Sommer C. Douga the
conservator who has the exclusive right to designate the primary
residence of [A.D.] be modified to designate Cayne Douga as the
conservator who has that exclusive right?
The jury answered affirmatively.
When examining a legal-sufficiency challenge, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if a reasonable fact finder could and
disregard contrary evidence unless a reasonable fact finder could not. Id. at 827.
The evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the verdict under review. Id. When, as here, a party
4
See Tex. Fam. Code Ann. § 156.101 (a)(1)(A) (West 2014).
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challenges legal sufficiency relative to an adverse finding on which she did not
bear the burden of proof, she must show that no evidence supports the finding. See
Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011).
The fact finder is the sole judge of witness credibility and the weight to give their
testimony. See City of Keller, 168 S.W.3d at 819. When a party challenges factual
sufficiency relative to an adverse finding on which she did not have the burden of
proof, we consider all the evidence and will set aside the finding only if the
evidence supporting it is so weak or so against the overwhelming weight of the
evidence that the finding is clearly wrong and unjust. Mar. Overseas Corp. v.
Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986) (per curiam).
A. The Evidence
Sommer challenges the finding that there was a requisite change in
circumstances. Cayne relies on Sommer’s false accusations that he sexually
abused A.D. as the change in circumstances because the accusations began after
the divorce decree. The evidence presented at trial showed the following.
Initially, there were no problems when Cayne exercised his visitation rights.
However, the accusations began after A.D. visited Cayne for Thanksgiving 2010.
According to Sommer, when she was changing A.D.’s diaper, the child pushed
Sommer’s hands away and cried, “No, Daddy, no,” and Sommer noticed redness in
A.D.’s vaginal area. When Cayne picked up A.D. for a visit in early December
2010, Sommer asked who changed A.D.’s diapers during Cayne’s visitation.
Cayne replied that it was him or his mother. Sommer claimed that A.D. made the
same “outcry” when she returned from that visit. When Cayne arrived for his next
visit, Sommer and A.D. were not home, and Sommer would not return Cayne’s
calls. Sommer did not discuss any suspicions regarding abuse with Cayne at that
9
time. Cayne first learned of a complaint when he was contacted by the police.
In early December 2010, Sommer made her report to the Nederland police.
Detective Ben Hanks, who conducted an investigation, testified Cayne was the
only person mentioned as a suspect. Detective Hanks characterized Cayne as very
cooperative. After Detective Hanks interviewed Cayne, Sommer became upset the
officer had not arrested Cayne. According to Detective Hanks, Sommer eventually
became irrational and uncooperative. Further, while the investigation was
ongoing, Sommer’s mother texted Cayne’s mother stating, “My granddaughter will
not be in the presence of a child molester.”
Sommer also took A.D. to her pediatrician and presented the complaint as a
“question of sex abuse.” A.D. was first examined by a nurse practitioner who
diagnosed vulvitis, an inflammation of skin around the vagina. When the
pediatrician examined A.D.’s vaginal area, she did not become upset or push the
doctor’s hand away in any manner other than typical for a child that age. The
pediatrician instructed Sommer to contact the police and obtain a SANE exam.
The SANE practitioner found a few abrasions in A.D.’s vaginal area and on
a nipple and a microscopic tear in A.D.’s anus. The pediatrician acknowledged it
is not unusual for a child that age to have vulvitis or such abrasions and that an
anal tear could be caused by an impacted bowel movement. The pediatrician
testified she would not have suspected sexual abuse based on the physical findings
and reported a suspicion of abuse only because of Sommer’s complaint.
Detective Hanks confirmed the medical records did not support a conclusion
that a sexual assault occurred. As a result of his investigation, Detective Hanks
determined there was insufficient evidence to forward the case to the District
Attorney. CPS in Jasper County also conducted a thorough investigation. When it
was concluded in late February 2011, the disposition was “Ruled Out.”
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It was during this same time frame that Sommer was held in contempt for
withholding Cayne’s visitation rights, and Sommer retained the personal-injury
attorney, who took Cayne’s deposition. Sommer testified Cayne’s answers eased
her mind on “some things” but not others. When the investigation was concluded,
Sommer dismissed her own previously-filed petition to modify but testified she
remained “frustrated” and her questions were not all answered.
Tanya Goldbeck, a family therapist, began counseling Cayne and Sommer in
July 2011, pursuant to the trial court’s order. Sommer persisted in the accusations
over the course of the counseling although Cayne urged her to stop, for the child’s
sake, and Goldbeck explained to Sommer there was no abuse. Sommer asserted
she had videos of A.D. stating Cayne touched her “crotch.” Goldbeck opined such
terminology was atypical for a child that age and was consistent with being
coached or picking up on the term and receiving attention for using it. Goldbeck
testified that whatever statements A.D. made about Cayne, she also made about
multiple persons, including Sommer’s fiance, Brandon; A.D. would say that
anyone she was with was “touching her,” but Sommer told Goldbeck it was only
Cayne. Additionally, at some point, Cayne told Sommer that A.D. had made
similar statements about Brandon. Eventually during counseling, Sommer
conceded Cayne may not have abused A.D. but thought someone at his home had
done so. Then, when Goldbeck disproved a claim by Sommer that Cayne had not
maintained health insurance on A.D., Sommer became angry and walked out of the
last session, stating, “I cannot trust that Cayne is not abusing our daughter.”
Goldbeck opined Cayne has always put A.D. first, whereas Sommer pursued
the accusations based on her need to prove she was right and control Cayne by
harming his reputation. Cayne expressed concern to Goldbeck that Sommer was
recording A.D.’s conversations and play activities. During the counseling, it was
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discovered that, unbeknownst to Cayne, Sommer had started A.D. in treatment
with a counselor who specializes in sexual assault victims. Goldbeck opined that
A.D. will be adversely impacted if Sommer has primary custody and her behavior
continues.
In October 2011, another formal accusation was made. A.D.’s daycare
reported to a child-abuse hotline that A.D. made an “outcry” against both Cayne
and Brandon. CPS in Orange County (where the daycare was located) conducted
an investigation, but against both men. When CPS contacted Sommer about this
episode, she made another police report. Despite CPS reporting A.D. mentioned
both men, Sommer told the police officer that A.D. was “a victim of continual
sexual abuse at the hands of [her] father.” A.D. was referred for an assessment at a
facility named “Garth House,” which specializes in complaints concerning
children. Detective Hanks, who viewed the Garth House interview, opined A.D.
had been coached to make certain statements, such as claiming Cayne or Brandon
“hurt my hiney” or touched my “tee tee.” The detective also testified that such
statements could merely indicate A.D. experienced pain while being wiped or
having medication applied, as opposed to indicating a sexual assault. Further,
another SANE exam revealed no injuries. The CPS investigation was closed as
“unable to determine.”
At some point in Spring 2012, another accusation was made although the
details are sparse. The record indicates CPS in Jasper County conducted an
investigation because that county sheriff and the Texas Rangers were contacted
with an allegation the trial court and authorities in Jefferson County had been
“unfair.” Again, the charges were determined to be “unfounded.” Sommer
claimed she did not initiate this investigation. However, Goldbeck suggested
Sommer initiated the investigation by sending a pair of A.D.’s underwear to those
12
authorities. At one point, Sommer had taken the underwear from Cayne’s home
and asked Goldbeck to examine a photo and determine if the underwear contained
any discharge, which Goldbeck declined.
Carmen Kaimann, a psychologist, examined Sommer in May 2012 (several
months before trial), pursuant to the trial court’s order. During the interview,
Sommer still maintained that A.D. had been sexually assaulted. Dr. Kaimann
described Sommer as “very . . . obsessive-compulsive” and a “very cognitively
rigid, stubborn individual” and thus inclined to maintain her belief regarding the
alleged sexual abuse despite evidence to the contrary.
Finally, a Facebook page entitled “Saving Grace” was admitted at trial.
Sommer’s mother claimed responsibility for the page, although Cayne testified
Sommer created the page. Regardless, the page originated from Sommer’s family.
It includes posts and “likes” from Sommer and Brandon’s mother/Sommer’s future
mother in law. A lengthy, emotional post was in the first person, as though written
by A.D. The purpose of the page was a plea for help because A.D. was being
sexually abused at her father’s home and the trial court and authorities refused to
“protect me.” The posts began in February 2011—the same month the first formal
allegation was ruled out. However, the printout introduced at trial shows the page
was still operating in November 2011—after authorities and professionals had
informed Sommer there was no abuse.
B. Sufficiency Analysis
Sommer contends there was no change in circumstances because various
witnesses, including Cayne, authorities, and professionals, did not fault Sommer
for reporting the first “outcry.” However, the jury had the opportunity to evaluate
Sommer’s credibility and was free to question her motives. The jury could have
disbelieved Sommer’s account of the first “outcry,” or at least that A.D. mentioned
13
only Cayne, because Sommer has constantly focused solely on Cayne despite
A.D.’s making similar statements about other persons. The jury could have
concluded that Sommer and her family were too quick to accuse Cayne of sexual
abuse without discussing the matter with him, considering A.D. might be reacting
to pain during her diaper change, or awaiting the outcome of the investigation.
Even if the jury believed Sommer’s account of the first “outcry” and accepted her
report was justified, the jury heard ample evidence that (1) Sommer and her family
doggedly perpetuated the accusations over a year-a-half period although authorities
and professionals in multiple counties determined they were unfounded, and (2)
Sommer’s behavior was driven by a need to control Cayne—not protect the child.
Sommer also emphasizes that A.D.’s daycare, not Sommer, initiated the
investigation in October 2011. However, the jury could have rationally inferred
Sommer was responsible for the October 2011 accusations because (1) evidence
indicated A.D. had been coached or received reinforcement for her statements, and
(2) the episode shortly followed the counselling sessions in which Sommer insisted
the abuse occurred. The jury could have also concluded Sommer was responsible
for the third formal accusation based on her attempts to obtain examination of
A.D.’s underwear—which precipitated that investigation. Moreover, the jury
heard that, in addition to the formal allegations, Sommer persisted in her
accusations by obtaining Cayne’s deposition, insisting during the counselling and
psychological evaluations the abuse occurred, and through the Facebook page.
Based on the entire pattern of events, the jury was free to accept Cayne’s
characterization: “Every time she’s had the opportunity to have this child, you see
what’s happened. . . . This has gone way too far.”
At trial, Sommer acknowledged Cayne did not sexually abuse A.D.
Nonetheless, the jury could have rationally inferred Sommer made this concession
14
only for trial and the accusations would likely persist, considering her past
behavior and psychological traits described by the professionals. Further, she
believed the accusations several months before trial with no plausible explanation
for the sudden transformation. This likelihood of future accusations supported
both the change-in-circumstances and best-interest findings, although Sommer
challenges only the change-in-circumstances component. In this regard, Sommer
asserts the only change in circumstances was that Cayne was hurt and angry over
the accusations. To the contrary, the jury could have concluded there was a danger
to A.D.’s emotional development if Sommer retained custody because the child
may be subjected to further (1) SANE exams, (2) counseling and evaluations, (3)
having her conversations and activities recorded, (4) overhearing the accusations,
thereby affecting her relationship with Cayne, and (5) generally living in a
poisonous environment where she is used as a weapon against Cayne. Finally, the
jury heard evidence that Cayne is a devoted father, A.D. thrives in his care, and his
family is very involved in raising the child.
In summary, the evidence is legally and facually sufficient to support the
jury’s finding. We overrule Sommer’s fifth issue.
IV. EVIDENCE OF TEMPORARY MODIFICATION
In her second issue, Sommer argues the trial court erred by admitting
testimony that the court had temporarily modified the divorce decree to give Cayne
custody.
During direct examination of Cayne, his attorney asked where the child now
resided. Outside the jury’s presence, Sommer objected to any reference to the
terms of the temporary orders based on Texas Rules of Evidence 403 and 605. The
trial court overruled both objections and allowed Sommer a running objection “as
to anything that was changed by virtue of the temporary orders.”
15
Sommer challenges the following portions of testimony that followed her
objection:
Direct-examination of Cayne:
Q. Where’s your child reside right now?
A. With me.
Q. How often has she -- let me rephrase that. How long has she
lived with you?
A. She’s been with me for nine months.
Q. When does Sommer see her?
A. On Wednesdays from 6:00 to 8:00 and Sundays from 2:00 to
6:00.
Q. And that’s it?
A. That’s it.
Cross-examination of Sommer:
Q. Again, where’s your daughter live right now?
A. With Cayne.
Q. And how long has she lived with Cayne?
A. Since December 6th.
Q. What year?
A. 2011.
Q. So, 2011, December, right?
A. (Moving head up and down)
* * *
Q. How often do you see her?
A. Twice a week.
Q. For how long?
A. Six hours total.
Q. What days of the week do you see her?
16
A. Wednesday for two hours and Sundays for four.
Q. Can you leave with her and go anywhere or do anything?
A. No.
* * *
Q. So, you can’t?
A. Right.
Q. You just get to go to Cayne’s house where your child lives and
get to visit with her a couple of hours?
A. Correct.
Q. Right?
A. Yes.
Q. In the last nine months, she hasn’t lived with you, has she?
A. No.
* * *
Q. Okay. Now you told -- you told your -- your lawyer that you’re
pleading this case to the jury. Why are you going to the jury?
A. To get a fair judgment and trial.
Q. You didn’t think you got a fair judgment last time?
A. No.
* * *
Q. Since Cayne has had this child for the last months, have you
paid the support you were ordered to?
A. Yes.
Q. You have?
A. (Moving head up and down)
Q. How much?
A. Whatever the amount was total. I don’t know -- I haven’t added
it up for the past nine months.
Q. You haven’t what?
17
A. I don’t add it up for the past nine months. I just know what I’m
supposed to pay.
Q. And you paid it every month?
A. I haven’t paid this month, no.
Q. So, you’re only behind this one month?
A. Uh-huh
Consistent with her trial objection, Sommer contends the trial court violated
Rules of Evidence 605 and 403 by admitting the testimony.
Rule 605 provides, “The judge presiding at the trial may not testify in that
trial as a witness. No objection need be made in order to preserve the point.” Tex.
R. Evid. 605. Sommer cites In re T.T., 39 S.W.3d 355, 357–59 (Tex. App.—
Houston [1st Dist.] 2001, no pet.), in which the court held that, during a jury trial
on termination of parental rights, the trial court erred by admitting its temporary
order placing the children in foster care. In the order, the trial court found there
was a danger to the children if they remained in the parents’ home and removal
was in the children’s best interest—essentially the same issues the jury was tasked
with deciding. Id. at 358. The appellate court reasoned that the effect of admitting
the trial court’s written findings was the same as if the judge had violated Rule
605 by testifying about those statements. Id. at 359. Sommer acknowledges the
trial court did not admit any temporary orders affirmatively showing the trial court
had found Cayne should have custody—the same issue the jury was tasked with
deciding. However, Sommer argues that admitting the above-cited testimony was
tantamount to admitting the orders because the testimony insinuated A.D. had been
living with Cayne pursuant to a court order.
Rule 403 provides, “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . .” Tex. R. Evid. 403. When a
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party objects under Rule 403, a trial court must conduct a balancing test, weighing
the danger of unfair prejudice against the probative value of the evidence. See
Campbell v. State, 118 S.W.3d 788, 797 (Tex. App.—Houston [14th Dist. 2003,
pet. denied). Sommer posits the above-cited testimony served no purpose other
than prejudicing the jury against Sommer.
Even if admitting the testimony was tantamount to admitting the temporary
orders or the danger of unfair prejudice outweighed the probative value, any error
was harmless. To obtain reversal of a judgment based on error in admitting
evidence, the appellant must show the error probably caused rendition of an
improper judgment. Tex. R. App. P. 44.1(a)(1); Interstate Northborough P’ship v.
State, 66 S.W.3d 213, 220 (Tex. 2001). In making this determination, we must
review the entire record. Interstate Northborough P’ship, 665 S.W.3d at 220.
Typically, to obtain reversal because evidence was erroneously admitted, the
complaining party must demonstrate the judgment turns on the particular evidence
admitted. Id.; Campbell, 118 S.W.3d at 797.
Sommer suggests that evidence the trial court had awarded Cayne temporary
custody likely persuaded the jury that he should be awarded permanent custody.
Sommer relies on a question the jury asked the trial court during deliberations:
“Why does [Cayne] currently have custody of the child?” The court did not
answer that specific question and replied that the jury could consider only the
evidence and the charge of the court. Contrary to Sommer’s suggestion, this
question indicates the jury had not gleaned from the testimony that Cayne’s
current custody was per court order. Regardless, even if the jury subsequently
gleaned Cayne’s current custody was per court order, the jury heard ample
evidence (as outlined above) otherwise supporting its finding that Cayne should
have permanent custody. Accordingly, we conclude the jury’s finding did not turn
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on any evidence indicating the trial court had temporarily modified custody prior
to trial. See In re T.T., 39 S.W.3d at 360–61 (holding error in admitting temporary
order that children were in danger in their home and removal was in their best
interest was harmless as to termination of father’s parental rights because ample
evidence admitted during jury trial demonstrated his abuse of the children).5 We
overrule Sommer’s second issue.
V. SOMMER’S REQUESTED SPECIAL CHARGE
In her third issue, Sommer contends the trial court erred by refusing to
submit to the jury her “requested special charge.” We review a trial court’s refusal
to submit a particular instruction under an abuse-of-discretion standard. Shupe v.
Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam).
The instruction actually submitted tracked Family Code section 156.101
which provides, in pertinent part, that a court may modify a conservatorship order
if (1) “the circumstances of the child, a conservator, or other party affected by the
order have materially and substantially changed since . . . the date of the rendition
of the order,” and (2) modification would be in the best interest of the child. See
Tex. Fam. Code Ann. § 156.101 (a)(1)(A).
Sommer requested in writing the following additional instruction:
5
On appeal, Sommer also contends the danger of confusion to the jury from the
testimony outweighed any probative value and cites the jury’s question as showing it was
confused. However, Sommer waived this complaint because the only basis for her Rule 403
objection at trial was that the “information is more prejudicial than probative.” See Tex. R. App.
P. 33.1(a)(1); Moran v. Mem’l Point Prop. Owners Ass’n, Inc., 410 S.W.3d 397, 407 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (recognizing that to preserve error, appellate
complaint must comport with objection at trial). Regardless, we conclude any confusion over
why Cayne currently had custody would not have affected the jury’s decision that he should have
permanent custody, considering the ample evidence supporting its decision.
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Modification of Conservatorship Brought Within One Year of
Prior Order
Public policy in Texas disfavors disruption of custodial
arrangements within the first year after a divorce decree has
established custody, except in cases in which the child’s physical
health or emotional development is imperiled.
Sommer did not request any other instructions or otherwise object to the charge as
submitted.
Sommer’s requested “charge” was essentially a quote from case law
explaining the policy reasons behind section 156.102(b)(1)—the requirement that
to obtain a hearing on modification of custody within a year after the divorce
decree, the petitioner must file an affidavit alleging “the child’s present
environment may endanger the child’s physical health or significantly impair the
child’s emotional development.” See, e.g., Burkhart, 960 S.W.2d at 323; see also
Tex. Fam. Code Ann. § 156.102(b)(1). Sommer cites no authority requiring the
trial court to inform the jury regarding the policy reasons underlying section
156.102(b)(1).
Further, this language generally stating that the law “disfavors” modification
within a year after the divorce decree unless “the child’s physical health or
emotional development is imperiled” did not constitute a jury instruction. This
language would not have instructed the jury that, in order to modify custody, it
must find A.D.’s “present environment may endanger the child’s physical health or
significantly impair the child’s emotional development.” See Tex. Fam. Code
Ann. § 156.102(b)(1). Sommer’s tendered “instruction” did not correctly track
section 156.102(b)(1), and she made no other objection to the charge. Assuming,
without deciding, that the trial court was required to submit an instruction tracking
section 156.102(b)(1), because the tendered “instruction” was not in substantially
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correct form, the trial court did not abuse its discretion in refusing the requested
“instruction.” See Tex. R. Civ. P. 278 (“Failure to submit a definition or
instruction shall not be deemed a ground for reversal of the judgment unless a
substantially correct definition or instruction has been requested in writing and
tendered by the party complaining of the judgment.”). We overrule Sommer’s
third issue.
VI. ORDER THAT SOMMER’S POSSESSION BE SUPERVISED
In her fourth issue, Sommer contends the trial court abused its discretion by
ordering that Sommer’s possession and access be supervised because (1) there was
no pleading supporting supervised visitation, and (2) the evidence was insufficient
to support such relief.
In Cayne’s petition to modify, he requested that Sommer be allowed to
exercise standard visitation. After the jury verdict on modification of custody, the
trial court addressed Sommer’s visitation rights. Sommer requested a standard
possession order consistent with Cayne’s pleading. Cayne then offered his own
testimony on the visitation issue and referred to the evidence presented at trial of
the custody issue. After this testimony, Sommer objected to supervised visitation
on the ground the issue was not pled or tried by consent. In its written order, the
court recited “credible evidence has been presented to depart from standard
possession because: (1) the parties have no communication; (2) the families are at
odds; and (3) the child is in danger of physical and mental harm.”
A. Pleading for supervised visitation
A trial court may not enter judgment on a claim that was not sufficiently
pleaded or otherwise tried by consent. See Tex. R. Civ. P. 301 (providing the
“judgment of the court shall conform to the pleadings . . .”); Stoner v. Thompson,
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578 S.W.2d 679, 682–83 (Tex. 1979); Maswoswe v. Nelson, 327 S.W.3d 889, 894
(Tex. App.—Beaumont 2010, no pet.); Herrington v. Sandcastle Condominium
Ass’n, 222 S.W.3d 99, 102 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
Texas follows a “fair notice” standard for pleading, meaning we consider
whether the opposing party can ascertain from the pleading the nature and basic
issues of the controversy and what testimony will be relevant. Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). A petition is sufficient
if it gives fair and adequate notice of the facts upon which the pleader bases his
claim. Id. at 897. The purpose of this rule is to give the opposing party
information sufficient to enable her to prepare a defense. Id. A court should
liberally construe a petition in favor of the pleader if no special exceptions are
filed. Id.
On appeal, Sommer reiterates that Cayne pled only for standard possession
and the issue of supervised visitation was not tried by consent. Cayne contends,
inter alia, that liberally construing all the pleadings, he gave Sommer fair notice he
was requesting supervised visitation. We agree with Cayne.
Although Cayne requested standard possession for Sommer in his petition to
modify, several months later, he filed his supporting affidavit. In the affidavit,
Cayne alleged facts that would support not only giving him custody but also
ordering that Sommer’s visitation be supervised. Specifically, Cayne averred that
due to Sommer’s false sexual-abuse accusations, there was a “clear and present
danger to the child’s safety and welfare.”
Then, while his petition to modify was pending, Cayne filed multiple
motions, requesting temporary orders for A.D.’s safety and alleging the child was
in danger in Sommer’s care. The trial court granted the second motion, giving
Cayne custody and ordering that Sommer’s visitation be supervised. At the
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hearing, the court remarked that Sommer was causing “harm” and “abuse” to A.D.
through her “continuing course of conduct.” Sommer did not object to this
restriction on the ground that she lacked notice that Cayne sought such relief. This
restriction remained in effect until trial of Cayne’s petition for permanent
modification.
In summary, Cayne’s pleadings, as a whole, alleged A.D. was in danger
while in Sommer’s care. Such allegation, together with the trial court’s temporary
orders, provided fair notice that Cayne sought to prevent A.D. from being in
Sommer’s care. Accordingly, the pleadings supported supervised visitation.
B. Sufficiency challenge
There is a rebuttable presumption that the “standard possession order”
prescribed in the Family Code provides reasonable minimum possession for a
parent named as possessory or joint managing conservator and is in the child’s best
interest. Tex. Fam. Code Ann. § 153.252 (West 2014); see id. §§ 153.3101–.317
(West 2014) (standard possession order). The standard possession order
contemplates the custodial conservator will “surrender” the child to the other
conservator at certain designated times. See id. § 153.316. The trial court may
depart from the standard possession order based on (1) the age, developmental
status, circumstances, needs, and best interest of the child, (2) the circumstances of
the conservators, and (3) any other relevant factor. See id. § 153.256 (West 2014).
The terms of an order that imposes restrictions or limitations “on a parent’s right to
possession of or access to a child may not exceed those that are required to protect
the best interest of the child.” Id. § 153.193 (West 2014).
We review a trial court’s departure from the standard possession order for
abuse of discretion. In re Q.D.T., No. 14-09-00696-CV, 2010 WL 4366125, at *6
(Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.); In re C.B.M.,
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14 S.W.3d 855, 858 (Tex. App.—Beaumont 2000, no pet.). Under the abuse-of-
discretion standard, legal and factual sufficiency are not independent grounds of
error, but are relevant factors in assessing whether the court abused its discretion.
Q.D.T., 2010 WL 4366125, at *2. A trial court does not abuse its discretion when
some evidence of a substantive and probative character supports its order. Id.
Sommer contends the supervised-visitation requirement exceeded what was
necessary to protect A.D.’s best interest, see Tex. Fam. Code Ann. § 153.193,
because (1) Cayne agreed Sommer is a “good mother,” and (2) Dr. Kaimann
acknowledged Sommer is not “an abusive parent” and nothing indicated the child
“is in any clear and present danger.” Considering this testimony in context, the
witnesses essentially testified Sommer did not endanger A.D. by directly abusing
her. However, the trial court was entitled to believe “the child is in danger of
physical and mental harm” in Sommer’s unrestricted care based on the likelihood
she will continue her accusations. In addition, at the post-trial proceeding on the
possession issue, Cayne testified it was in A.D.’s best interest for supervised
visitation to continue. Cayne expressed concern A.D. will again be the subject of
false accusations and subjected to further SANE exams if left in Sommer’s care.
Accordingly, the trial court did not abuse its discretion by ordering supervised
visitation. We overrule Sommer’s fourth issue.
Having overruled all of Sommer’s issues, we affirm the trial court’s order.
/s/ John Donovan
Justice
Panel consists of Justices Christopher, Donovan, and Brown.
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