in the Interest of L.B., a Child ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00345-CV
___________________________
IN THE INTEREST OF L.B., A CHILD
On Appeal from County Court at Law No. 2
Wise County, Texas
Trial Court No. CV17-08-696
Before Gabriel, Kerr, and Wallach, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant S.P. (Sally) sought to modify a prior possession and access order to
her son L.B. (Luke). The trial court explicitly denied Sally’s request to be granted the
right to determine Luke’s primary residence and implicitly denied her request to
require Luke’s nonparent, joint managing conservators—Luke’s paternal grandparents
P.D. and T.D. (Peter and Tina)—to pay child support. The trial court further
modified the custody-exchange location from the Sulphur Springs Police Department
to the Sherman Police Department. In three issues, Sally argues that these rulings
were abuses of the trial court’s discretion. We disagree. The evidence before the trial
court sufficiently supported the trial court’s determination that Sally should not be
allowed to designate Luke’s primary residence because there had been no material and
substantial change in circumstances and because it would not be in Luke’s best
interest. Because Sally’s application for child-support payments from Peter and Tina
was dependent on being granted the right to designate Luke’s primary residence, the
denial of this requested modification rendered her child-support request moot.
Regarding the trial court’s modification to the custodial-exchange location, the
evidence sufficiently supported the trial court’s implicit findings that there had been a
material and substantial change on this issue and that the modification would be in
Luke’s best interest.
Sally also contends in a separate issue that the trial court abused its discretion
by admitting the testimony of Dr. Lisa Elliott—a psychologist who began treating
2
Luke in 2012 when he was three years old—because her expert opinion was
unreliable, not relevant, and not sufficiently based on facts. And Sally adds that
because Peter and Tina prevented her from taking Luke to a counselor in Texarkana
after she sought to modify custody and access, she was effectively barred from testing
Elliott’s opinion and, therefore, from properly presenting her modification arguments.
We conclude that Elliott’s testimony met the admissibility requirements and that Sally
was not prevented from presenting any aspect of her case for modification.
Accordingly, we affirm the trial court’s order denying Sally’s motion to exclude
Elliott’s testimony and the trial court’s modification order.
I. BACKGROUND
In May 2016, the County Court at Law of Bowie County held a trial in a suit
affecting the parent–child relationship (SAPCR) brought by Peter and Tina to gain
custody of Luke and by the Department of Family and Protective Services (DFPS) to
terminate Luke’s father’s and Sally’s parental rights to Luke.1 The trial court, based on
a jury verdict, terminated Luke’s father’s parental rights, denied DFPS’s termination
petition as to Sally, and appointed Peter, Tina, and Sally joint managing conservators
of Luke (the SAPCR order). See Tex. Fam. Code Ann. §§ 153.005, 153.372,
161.001(b), 161.205–.206 The court granted Peter and Tina the exclusive right to
1
The record is unclear about Peter and Tina’s exact relationship to Luke, but it
appears that Luke’s father is Tina’s son from a prior marriage and that Luke’s father
and Sally had a younger son who died, possibly as a result of Luke’s father’s actions.
3
designate Luke’s primary residence and ordered Sally to make monthly $300 child-
support payments to Peter and Tina. See id. §§ 153.134(b), 153.138, 154.001. A
custodial condition in the court’s standard possession schedule required the parties to
surrender custody of Luke at the Sherman Police Department until Peter and Tina
moved from Wichita Falls to Paradise (located in Wise County), at which time the
exchange location was to change to the Sulphur Springs Police Department. Peter
and Tina moved to Paradise in June 2016; Sally lives with her mother and stepfather
in Texarkana.2 The exchange condition allowed the parties to mutually agree to a
different exchange location. The parties later agreed to exchange custody in
Greenville.3
In May 2017, Sally filed a petition to modify the SAPCR order in County Court
at Law No. 2 of Wise County, requesting not only the right to designate Luke’s
primary residence but also child-support payments from Peter and Tina if she were
allowed to designate Luke’s residence.4 See id. §§ 156.101, 156.401, 157.001–.002.
These requests were based on her allegations that the modifications would be in
2
Sulphur Springs is approximately 150 miles from Wise County and
approximately 100 miles from Texarkana.
3
Greenville is approximately 110 miles from Wise County and approximately
130 miles from Texarkana.
4
Sally also sought to enforce the SAPCR order, alleging that Peter and Tina had
repeatedly violated the order regarding possession and access, but Sally raises no
argument directed to enforcement.
4
Luke’s best interest and that Luke’s or another party’s circumstances had materially
and substantially changed since the SAPCR order. She further stated in an affidavit
that she believed Luke’s environment with Peter and Tina significantly impaired his
physical health and emotional development, requiring a change in the conservator
having the right to designate his primary residence. See id. § 156.102(a)–(b).
Peter and Tina filed a counterpetition to modify asking that Sally’s child-
support obligation be increased because it was not “in substantial compliance with the
guidelines.” This modification request was based on their assertions that there had
been a material and substantial change in circumstances and that the modification
would be in Luke’s best interest. Peter and Tina also requested that the exchange
condition be changed to Sherman based on a material and substantial change in
circumstances.
In November 2018, Peter and Tina designated Elliott as an expert to testify
regarding Luke’s treatment. They attached Elliott’s “Progress Report” in which she
opined that Luke had improved since being in Peter and Tina’s care but that he
regresses and his anxiety increases after being with Sally:
Overall, [Luke] is doing very well emotionally and socially; he has made
tremendous strides in his developmental progress, including emotional
and social functioning, as well as academic progress, while under the care
of his paternal grandparents. . . . [Luke] responds best to structure and
has demonstrated, via documented school testing, a regression in his
reading skills over the summer months when his reading program is not
implemented consistently. Of concern is a recent increase in anxiety
after visits with his mother and maternal grandparents. This behavioral
change is noted by both his paternal grandparents and his teachers,
5
including symptoms of a lower frustration tolerance, variable attention,
crying, and nightmares of being “locked away from [Tina].” [Luke’s]
anxiety appears to be associated with questions that have arisen as a
result of direct conversations with his mother and maternal grandparents
that are focused on upcoming legal hearings, why and how his baby
brother died, why he is living with [Peter and Tina], and concerns that he
will have to leave his paternal grandparents. [Luke] reported that his
mother shared with him that they are going to court to get him. This
naturally upsets [Luke], he expressed a great deal of stress and angst,
crying and clinging to [Tina]. . . .
. . . [Luke] has made tremendous progress with his medication
treatment [for attention deficit hyperactivity]; consistency in his
treatment plan is critical. There has been [a] lack of support and
consistency when in his mother’s care.
Sally filed a motion to exclude Elliott’s report because Elliott did not disclose
the data she relied on and because Sally alleged that Elliott’s opinion was not relevant
to a determination of Luke’s changed circumstances. See Tex. R. Evid. 702, 705. The
trial court held a hearing on Sally’s motion, concluded that Sally’s arguments went to
the weight of Elliott’s opinion evidence and not to its admissibility, and denied the
motion.
The trial court then held an evidentiary hearing on the petitions to modify.
Elliott testified, consistent with her report, that Luke had improved in Peter and
Tina’s care and that Sally was relatively uninvolved, disagreed with Luke’s treatment,
and increased Luke’s regression and anxiety. Sally asserted that Peter and Tina had
alienated her from Luke’s life by failing to keep her informed as required and that they
had “minimized and thwarted her contact” with Luke. Peter and Tina pointed to
Luke’s improvement since being in their care, Sally’s lack of participation in parenting,
6
Sally’s talking to Luke about how his brother had died and about how she would get
custody of him, and her refusal to give Luke his needed medications. They further
introduced evidence of the logistical problems with exchanging custody in Greenville
and the benefits to Luke of exchanging in Sherman. At the conclusion of the hearing,
the trial court stated that it would not decide the petitions that day, choosing to “sleep
on the[m] for a few days,” but indicated that Peter and Tina could not be ordered to
pay child support “at least under these circumstances.”
In the resulting modification order, the trial court denied Sally’s request to have
the right to designate Luke’s primary residence, specifically finding that Luke’s, Sally’s,
Peter’s, and Tina’s circumstances had not materially and substantially changed
regarding this issue. But the court modified the exchange location to the Sherman
Police Department.5 Finally, the court ordered Sally to pay Peter and Tina $339 in
child support each month. The trial court denied all other requested relief,
presumably including Sally’s conditional request for child support. No party asked the
trial court to enter findings of fact and conclusions of law. See Tex. R. Civ. P. 296.
Sally filed a motion for new trial, arguing that the modifications were
“improper and inconsistent with th[e] Court’s finding[]” that the parties’
circumstances had not materially and substantially changed since the SAPCR order.
5
Sherman is approximately 84 miles from Wise County and approximately 158
miles from Texarkana.
7
The motion was overruled by operation of law, and Sally now appeals the
modification order. See Tex. R. Civ. P. 329b(c).
II. ADMISSION OF ELLIOTT’S OPINION EVIDENCE
In her second issue,6 Sally contends that the trial court abused its discretion by
denying her motion to exclude Elliott’s progress report and her later testimony based
on that report. She argues that Elliott’s report was inadmissible because she failed to
specify the data she relied on in reaching her opinion and because any supporting data
was insufficient to support her conclusions. See Tex. R. Evid. 703, 705(c). Sally
additionally points to the fact that after she filed her modification petition, she made
an appointment for Luke to see a counselor in Texarkana and informed Peter and
Tina. Peter and Tina immediately told the counselor that Luke was already being seen
by Elliott. Peter and Tina attended the counseling session and again informed the
counselor that Luke was under Elliott’s care and that the counselor was not
authorized under Texas law to see Luke without Elliott’s knowledge. See 22 Tex.
Admin. Code § 681.41(n) (2019) (Tex. State Bd. of Examiners of Prof’l Counselors,
General Ethical Requirements). The counselor later informed Peter and Tina that
“there would be no further contact with [Luke] through [the counselor’s] office.”
Sally denied that she made the counseling appointment “for litigation purposes.”
Sally now asserts that Peter and Tina’s conduct and the failures in Elliott’s report
6
We address Sally’s four issues out of order.
8
prevented her from challenging Elliott’s opinion or from retaining her own rebuttal
expert.
A. STANDARD OF REVIEW
We review the trial court’s admission of Elliott’s expert testimony for an abuse
of discretion. See In re C.L.C., No. 04-11-00920-CV, 2013 WL 1149270, at *4 (Tex.
App.—San Antonio Mar. 20, 2013, no pet.) (mem. op.) (citing E.I. du Pont de Nemours
& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)). Sally, however, argues that a no-
evidence standard of review applies to her evidentiary complaint because Elliott’s
unreliable report and testimony constituted no evidence. We disagree.
When an abuse-of-discretion standard is applied to an issue, traditional
sufficiency challenges are not considered independent grounds of error but are
relevant factors in assessing the trial court’s exercise of its discretion. See In re M.S.F.,
383 S.W.3d 712, 716 (Tex. App.—Amarillo 2012, no pet.); In re T.D.C., 91 S.W.3d
865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g); McGuire v.
McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.). And
Sally’s reliance on legal insufficiency is conditional—she does not argue that the
evidence is insufficient with Elliott’s opinion but that if that evidence were excluded,
there would be no evidence to support the trial court’s modification order. Thus, we
must first determine whether the trial court abused its discretion by admitting Elliott’s
report and testimony, deferring to the trial court’s implicit factual and credibility
determinations, before determining if their absence affects the sufficiency of the
9
evidence to support the trial court’s modifications. See George v. Jeppeson, 238 S.W.3d
463, 468 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In evidentiary matters, a trial court is a gatekeeper, ensuring expert testimony is
relevant and based on a reliable foundation. See In re J.R., 501 S.W.3d 738, 748 (Tex.
App.—Waco 2016, no pet.). Although expert testimony will generally be relevant if it
will assist the fact-finder in determining a fact at issue, it must be based on sufficient
underlying facts or data such that there is no analytical gap between the foundational
data and the opinion. See Tex. R. Evid. 702, 703, 705(c); In re D.S., 19 S.W.3d 525,
529 (Tex. App.—Fort Worth 2000, no pet.) (citing Gammill v. Jack Williams Chevrolet,
Inc., 972 S.W.2d 713, 726 (Tex. 1998)).
B. ADMISSIBILITY
Elliott indicated in her report that she based her opinions regarding Luke’s
progress and prognosis on her neuropsychological testing, her review of Luke’s
school records, information recounted by Tina, Luke’s teachers’ opinions, and Luke’s
behaviors during sessions. Elliott noted that between May 2016 and November 2017,
Sally attended only two of Luke’s twelve sessions. At the modification hearing, Elliott
testified that the information she relied on typically forms the basis for treatment
methods and opinions regarding any patient:
[T]he predominate [basis], of course, is going to be on your client, your
patient, him or her. I also take in collateral information from the parents
or caregivers, as well as any kind of physicians or other medical
specialists, and any other collateral resources, like teachers. . . . And the
10
other thing, too, is observation. And if we do testing, it’s going to be
testing, as well.
Elliott’s report and subsequent testimony sufficiently established that she relied
on information typical in her field in reaching her opinion regarding Luke and, taken
in tandem, do not reveal an analytical gap between the information relied upon and
her expert opinion. See Tex. R. Evid. 703; J.R., 501 S.W.3d at 748–49; In re
Commitment of Fields, No. 09-09-00005-CV, 2009 WL 4841033, at *4 (Tex. App.—
Beaumont Dec. 17, 2009, pet. denied) (mem. op.); SeaRiver Maritime, Inc. v. Pike,
No. 13-05-0033-CV, 2006 WL 1553264, at *4 (Tex. App.—Corpus Christi–Edinburg
June 8, 2006, pet. denied) (mem. op.). We also disagree with Sally’s assertion that
because Elliott did not specify the supporting underlying data in her report and did
not attach the relied-upon school records, her opinion was inadmissible. Underlying
facts or data are not required to be disclosed initially; the specifics of the underlying
facts and data are subjects for voir dire or cross-examination. See Tex. R. Evid.
705(a)–(b). Accordingly, the trial court did not abuse its discretion by admitting
Elliott’s report and expert testimony. See J.R., 501 S.W.3d at 748–49.
We also reject Sally’s argument that the trial court’s admission of this evidence
prevented her from rebutting Elliott’s opinion and presenting her modification
arguments. We see no indication in the record that Sally was unable to test Elliott’s
opinions through cross-examination or that she was somehow prevented from
retaining her own expert on the issue, especially when Peter and Tina notified Sally of
11
Elliott’s opinion six months before the modification hearing. Cf. In re Atlas Tubular,
L.P., 296 S.W.3d 363, 366 n.1 (Tex. App.—Corpus Christi–Edinburg 2009, orig.
proceeding [mand. denied]) (“There is nothing preventing Atlas from introducing
similar evidence at trial to rebut the interrogatory answers and admissions deemed to
have been provided by Maharashtra pursuant to the sanctions order.”). Further, Tina
testified that (1) she never prevented Sally from obtaining Luke’s medical and school
records, which Sally had the right to request, or from talking to Elliott and (2) she
would have had no problem with Luke’s seeing a counselor in Texarkana if Elliott had
approved. Although Sally unsuccessfully attempted to have Luke seen by a different
counselor shortly after she filed her modification petition, this similarly did not
prevent Sally from retaining a consulting expert, from talking to Elliott about Luke’s
medical records, from talking to Luke’s teachers about his test results, or from
otherwise presenting her case for modification. We overrule issue two.
III. MODIFICATION ORDER
A. CUSTODIAL-EXCHANGE LOCATION
In her first issue, Sally contends that the trial court abused its discretion by
modifying the custodial-exchange location from Greenville to Sherman because the
trial court found no material and substantial change in circumstances and failed to
find that the modification was in Luke’s best interest. She also attacks the legal
sufficiency of the evidence to support the trial court’s modification, arguing that no
12
evidence could support a finding that such a change was in Luke’s best interest or was
based on a material and substantial change in circumstances since the SAPCR order.7
We review the modification for an abuse of discretion. See In re H.D.C.,
474 S.W.3d 758, 763 (Tex. App.—Houston [14th Dist.] 2014, no pet.); T.D.C.,
91 S.W.3d at 872. Because Peter and Sally sought the modification, they had the
burden to show, by a preponderance, both a substantial and material change in
circumstances and that the modification would be in Luke’s best interest. See Epps v.
Deboise, 537 S.W.3d 238, 245 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Zeifman
v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied). To determine
whether a sufficient change in circumstance occurred to support a modification, the
trial court is to compare evidence of the conditions that existed at the time of the
prior SAPCR order with the evidence of the conditions that existed at the time of the
modification hearing. In re E.M., No. 02-18-00351-CV, 2019 WL 2635565, at *6 (Tex.
App.—Fort Worth June 27, 2019, no pet.) (mem. op.); Anderson v. Carranza, No. 14-
10-00600-CV, 2011 WL 1631792, at *4–5 (Tex. App.—Houston [14th Dist.] Apr. 28,
2011, no pet.) (mem. op.).
In the “Findings” portion of the modification order, the trial court expressed its
no-material-and-substantial-change finding in the paragraph denying Sally’s request to
have the right to designate Luke’s primary residence:
7
She does not raise a factual-insufficiency argument here.
13
The Court finds the circumstances of the child and the Joint Managing
Conservators have not materially and substantially changed[.] Therefore,
the Court DENIES Petitioner, [Sally’s] request to be appointed the
person having the primary right to determine the residency of the child.
IT IS ORDERED that the parties shall remain Joint Managing
Conservators.
The custodial-exchange modification was in a separate, stand-alone paragraph of the
findings section and did not include a similar, explicit no-change-in-circumstances
finding with it: “IT IS ORDERED that the parties shall exchange the child at the
parking lot of the Sherman, Texas Police Station, [address].” In short, the no-change-
in-circumstances finding was placed only with the residency-determination portion of
the trial court’s order, not with the custodial-exchange modification portion.
Although Sally is correct that a SAPCR modification must be based on a
material and substantial change in circumstances and on Luke’s best interest, see Tex.
Fam. Code Ann. § 156.101(a)(1), the absence of any trial court findings or conclusions
here as to the custodial-exchange provision allows us to imply all necessary,
supporting fact findings (including a change in circumstances regarding the exchange
condition and Luke’s best interest) if those implied findings are factually supported in
the record. See In re M.V., 583 S.W.3d 354, 360–61 (Tex. App.—El Paso 2019, no
pet.); Zeifman, 212 S.W.3d at 588; In re B.N.F., 120 S.W.3d 873, 876–77 (Tex. App.—
Fort Worth 2003, no pet.). To make that determination (and based on Sally’s legal-
insufficiency argument), we embark on a two pronged inquiry: (1) whether the trial
court had sufficient information upon which to exercise its discretion and (2) whether
14
the trial court erred in its application of its discretion. See Gerges v. Gerges, No. 08-19-
00006-CV, 2020 WL 913839, at *3 (Tex. App.—El Paso Feb. 26, 2020, no pet. h.).
Again, our review of the legal sufficiency of the evidence is a relevant factor
informing our first inquiry. See id.; T.D.C., 91 S.W.3d at 872. To assay legal
sufficiency, we consider the evidence in the light most favorable to the finding if a
reasonable fact-finder could, and disregard evidence contrary to the finding unless a
reasonable fact-finder could not. See Gerges, 2020 WL 913839, at *3; E.M., 2019 WL
2635565, at *5.
Peter testified that while he, Tina, and Luke lived in Wichita Falls, they met
Sally in Sherman for four years until the SAPCR order directed that the exchange take
place in Sulphur Springs. Because Sulphur Springs was “too far” from Wise County,
Sally agreed to meet them in Greenville after balking at Peter and Tina’s request for a
return to Sherman. The route from Wise County to Greenville commonly is a
“racetrack situation” with “choke[d]” traffic and accidents, requiring Peter to get Luke
from school thirty minutes before the school’s regular 3:30 p.m. dismissal every other
Friday in order to arrive in Greenville for the 6:00 p.m. exchange. And the length of
the return trip from Greenville to Wise County on Sundays resulted in a delay in
getting Luke “in bed for school the next morning.” Peter testified that it was in
Luke’s best interest to set the exchange location in Sherman. Tina also emphasized
the increasing traffic difficulties between Wise County and Greenville since the
SAPCR order and noted that they were caused by “new construction” along that
15
route. Peter stated that he and Tina requested a return to Sherman for the exchange
because “[i]t’s open highway for both of us. [Luke] spends less time in the car, and
it’s a safer route” than the routes to Greenville. Sally was opposed to a change to
Sherman because Luke “would spend more time in the vehicle going to Sherman,”
which she testified “is about 30 minutes to an hour more” than meeting in Greenville
or Sulphur Springs. Sally disputed that the traffic from Wise County to Greenville on
a Friday was a longer drive, timewise, than the drive between Wise County and
Sherman.
This competing evidence afforded the trial court with the discretion to credit
Peter and Tina’s testimony about the logistical problems with Greenville as opposed
to Sherman and supports a best-interest finding. See M.V., 583 S.W.3d at 361; In re
B.A.W., 311 S.W.3d 544, 554–55 (Tex. App.—El Paso 2009, no pet.). And this
testimony also showed a change in circumstances since the SAPCR order set the
exchange in Sulphur Springs: the parties’ compromise change to Greenville after Sally
would not agree to returning to a Sherman exchange location, which had previously
worked; the increase in traffic between Wise County and Greenville; and the necessity
that Luke miss school regularly while spending more time travelling than he had
before. We cannot second-guess the trial court’s credibility determinations and
cannot conclude that there was no evidence upon which the trial court could have so
16
exercised its discretion.8 See In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin
2005, pet. denied). The trial court did not err in applying its discretion to the
custodial-exchange modification because the credited facts supported the trial court’s
implicit findings that (1) it would be in Luke’s best interest to change the exchange
location and (2) a material and substantial change in circumstances had occurred since
the SAPCR order. See, e.g., In re M.C.K., No. 14-17-00289-CV, 2018 WL 1955065, at
*7 (Tex. App.—Houston [14th Dist.] Apr. 26, 2018, no pet.) (mem. op.); In re K.B.L.,
No. 07-16-00285-CV, 2017 WL 4872784, at *3 (Tex. App.—Amarillo Oct. 24, 2017,
no pet.) (mem. op.); In re C.C.J., 244 S.W.3d 911, 923–24 (Tex. App.—Dallas 2008, no
pet.); J.R.D., 169 S.W.3d at 743–44. We overrule issue one.
B. RIGHT TO DESIGNATE PRIMARY RESIDENCE
In her third issue, Sally argues that the trial court abused its discretion by
refusing to allow her to designate Luke’s primary residence based on (1) Peter and
Tina’s conduct “giv[ing] rise to parental alienation,” which constituted a material and
substantial change in circumstances, and (2) Luke’s best interest. We apply the same
review standards to this issue as we did in determining the residence-designation
issue—an abuse-of-discretion standard considering as a factor the legal and factual
sufficiency of the evidence to support that discretion. To review factual sufficiency,
8
Even if Sally had challenged the factual sufficiency of the evidence to support
this modification, this recited evidence would be factually sufficient, leading to a
conclusion that the trial court did not abuse its discretion.
17
we consider and weigh all of the evidence and determine if the trial court’s finding
was against the great weight and preponderance of that evidence. E.M., 2019 WL
2635565, at *5. Sally bore the burden to establish her case for modification by a
preponderance. See Epps, 537 S.W.3d at 245; Zeifman, 212 S.W.3d at 589.
Sally relies on Peter and Tina’s “course of conduct” that she claims attempted
to “thwart and minimize” her contact with Luke, leading to Sally’s allegation that
Luke’s residence should be determined at her sole discretion:
• Peter and Tina’s ultimately denied request to reduce Sally’s bi-weekly Skype
visits with Luke;
• Their failure to notify Sally that they were taking Luke on a four-day cruise in
August 2016;
• Their failure to consistently notify Sally of school meetings regarding Luke’s
individual-education-program plan9 or to list her as an emergency contact with
Luke’s school; and
• Their “mindset” that Sally does not have the tools to raise Luke, which will
“inevitably pour into the mind of [Luke] and cause [him] to believe his mother
is not able to care for him and take care of him as a mother should.”
She adds that because she, Peter, and Tina cannot “reach shared decisions” and
because Peter and Tina cannot “encourage or accept a positive relationship” between
9
Luke initially qualified for special-education services based on his “emotional
disturbance,” speech impairment, and ADHD. By the end of his second-grade year in
2018, he no longer qualified for such services based on an emotional disturbance or
speech impairment. One of his teachers testified she had never before had a special-
education student become ineligible for those services after qualifying based on an
emotional disturbance.
18
Luke and Sally, Luke’s best interest would be better served by Sally having the right to
designate his primary residence.
Again, the trial court did not enter findings and conclusions; thus, we imply all
factually supported findings necessary to the trial court’s holding. See B.N.F.,
120 S.W.3d at 876–77. Although Sally lists several actions Peter and Tina have taken
since the SAPCR order, “it is not the fact of change that drives a modification but
whether these changes are material and substantial changes in the parenting
arrangement.” E.M., 2019 WL 2635565, at *6.
Although Peter and Tina sought to reduce Luke’s Skype visits with Sally in their
modification petition, Peter and Tina did not unilaterally reduce the visits, and the trial
court implicitly denied this request in the modification order; thus, there was never a
change in the Skype visits. Tina testified that they took Luke on a cruise but that a
passport was not required; thus, the travel-notification requirement in the prior
SAPCR order arguably was not triggered. Regarding the school notifications, four of
Luke’s teachers testified that Sally never attempted to contact them regarding Luke’s
schooling and that she did not take advantage of the “parent portal” to access Luke’s
grades. And Sally testified that she knew she was listed as an emergency contact for
Luke with his school district. Sally further testified that she had attempted to contact
Luke’s teachers, but they “denied” her the right to talk to them about Luke. Luke’s
teachers disputed Sally’s account, testifying that Sally had never contacted them and
19
that if she had, they would have given her any requested information.10 Tina also
testified that she had not attempted to prevent Sally from talking to Luke’s teachers or
from obtaining his school and medical records. Tina ensured that Luke’s school had a
copy of the SAPCR order and that Sally was listed as a parent on Luke’s forms,
entitling Sally to “equal access” to Luke’s school information. Tina also testified that
she had notified Sally of multiple school events, issues, and grades. Although Sally
testified that she has a degree in special education and early childhood education and
that she knew she was entitled to talk to Luke’s teachers, she was unaware that she
could contact Luke’s teachers by text or email.
As we previously recognized, Sally argues that Peter and Tina’s general course
of conduct effectively poisoned Luke’s mind against Sally, resulting in the alienation
of her relationship with Luke and justifying a change-in-circumstances finding. Tina
did testify that she did not believe Sally could address Luke’s issues, including ADHD
and a reading delay, based on Sally’s prior refusal to give him his prescribed ADHD
medication; on Luke’s reading skills regressing in the summers after being with Sally;
and on Sally’s failure to find Luke a speech therapist in 2016 after saying she would do
so. But Elliott testified that Sally had caused Luke “a great deal of stress and anxiety”
when Sally told him that “his father had killed his baby brother” and then told him
that “his dad came from [Tina’s] tummy.” Sally also repeatedly told Luke that he
One of these teachers testified that she taught Luke during his first- and
10
second-grade years and that Sally had never contacted her during those two years.
20
would be living with her and her parents, causing Luke “a great deal of distress.”
There was no evidence that Peter and Tina discussed their reservations about Sally’s
parenting abilities with Luke. Luke only remembers living with Peter and Tina. Tina
testified that it would be “tragic” if Luke moved to Texarkana “when he’s doing so
well, and happy and well adjusted as he is.”
We conclude this evidence was legally and factually sufficient to support the
trial court’s explicit finding that there had been no material and substantial change in
the parties’ circumstances in the year after the SAPCR order justifying a modification
regarding the primary-residence issue; therefore, this factor shows that the trial court
did not abuse its discretion. Competing evidence regarding changed circumstances
does not equate to legally or factually insufficient evidence to support the denial of a
requested modification. See, e.g., E.M., 2019 WL 2635565, at *6-7; Newberry v. Bohn-
Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(substituted op.). The occurrences Sally relies on to prove a change in circumstances
were disputed, allowing the trial court to weigh the evidence and make credibility
determinations, which prevents us from concluding the trial court abused its
discretion. See J.R.D., 169 S.W.3d at 743. Based on the state of the evidence on this
issue, we conclude the trial court did not abuse its discretion by finding no material
and substantial change in circumstances.
The same conclusion holds true for the trial court’s implicit best-interest
finding, which we address in the alternative to our changed-circumstances holding.
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See Holloway v. Allison, 494 S.W.2d 612, 614 (Tex. App.—Tyler 1973, no writ). As we
mentioned, the evidence shows that Luke has made great strides since Peter and Tina
were granted primary custody of him. His speech impairment has abated and he no
longer qualifies for special-education services based on his prior emotional
disturbance. He has no memory of living with anyone other than Peter and Tina, and
Luke’s teachers consistently testified that Peter and Tina were involved, patient, and
present caregivers. In contrast, Sally was not willing to consistently give Luke his
ADHD medication (even though Elliott testified it was medically necessary), Luke’s
teachers noted his regression and behavioral problems when he was off his
medication, and Tina testified Luke’s improvements would be erased if he were taken
off the medication. Luke told Elliott that when he is with Sally and her parents, he is
allowed to play video games all day, which Elliott explained disproportionately and
negatively affects Luke because he was born with brain dysplasia.
Elliott testified that Sally’s discussion with Luke that she was trying to make
sure Luke lived with her and that his father had killed his younger brother was not in
Luke’s best interest because it had a negative impact on him “in terms of his overall
emotional well-being” and made him “incredibly scared.” Elliott saw no indication
that Luke had been coached. Elliott concluded that a change in Luke’s environment
would cause him to regress after having made large developmental improvements
under Peter and Tina’s care:
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I am gravely concerned about regression in his progress that he has
made. He has made tremendous amounts of changes developmentally,
academically, socially, and emotionally and mentally, and I personally
have seen the [school’s] documentation that supports his regression just
in reading skills. And I’ve also seen an increase in anxiety with
inappropriate things being told to him, so I’m gravely concerned that we
would see a huge regression and he would not achieve his maximum
potential.
....
. . . [Peter and Tina] have done everything [recommended for
Luke’s development]. Above and beyond.
The evidence sufficiently afforded the trial court the discretion to find that
allowing Sally to designate Luke’s primary residence would not be in Luke’s best
interest. See, e.g., E.M., 2019 WL 2635565, at *7–8; In re J.P.M., No. 02-11-00441-CV,
2012 WL 2428495, at *2 (Tex. App.—Fort Worth June 28, 2012, no pet.) (mem. op.).
We decline to second-guess this determination based on the best-interest evidence
presented. See E.M., 2019 WL 2635565, at *8. We overrule issue three.
C. AUTHORITY TO ORDER CHILD SUPPORT
In her final and fourth issue, Sally argues that the trial court abused its
discretion by determining that Peter and Tina could not be ordered to pay child
support even though they were joint managing conservators with Sally.11 We review
the denial for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990) (per curiam).
Sally does not clearly attack the modification to the amount of her child-
11
support obligation as she did in her motion for new trial.
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At the beginning of the modification hearing, Sally argued that the trial court
was authorized to order Peter and Tina to pay child support because they were joint
managing conservators. Sally stated that the issue had been addressed “earlier,” and
the trial court agreed: “And, again, I’ll state on the record, we had covered this before,
I understand you’re making a record on it. . . . You know my position . . . but I will
let you put on evidence in regard to that.” Later, when Sally was questioning Peter
about his salary (and over a relevance objection based on the absence of “a duty to
support as a nonparent, nonadoptive parent conservator”), the trial judge reaffirmed
that he was “still holding to [his] previous ruling” and allowed Sally to introduce
evidence regarding Peter and Tina’s ability to pay child support. After both sides
rested and closed the evidence, the trial judge reiterated that his “position” on child
support was that “at least under these circumstances,” Peter and Tina could not be
ordered to pay child support. The modification order did not expressly rule on the
child-support request, instead denying “all relief requested in this case . . . not
expressly granted.”
Sally contends that even though the record does not reveal what the “previous
ruling” was, we may presume that the trial court denied Sally’s request because it
concluded that it did not have the authority to do so based on Peter and Tina’s status
as nonparents. But the record does not support this reading of the trial court’s
statements. At no point did the trial court state that it was never authorized to order
nonparent conservators to pay child support. The most the trial court stated was that
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the “circumstances” did not support such an order. In the absence of findings and
conclusions, we decline to read more into the trial court’s implicit ruling in the
modification order other than the fact that Sally’s request was denied. Cf. In re Doe 10,
78 S.W.3d 338, 340 n.2 (Tex. 2002) (“Oral comments from the bench are not written
findings of fact.”). Indeed, we may imply only those findings necessary to support the
trial court’s denial. See Worford, 801 S.W.2d at 109. Additionally, Sally’s child-support
request was based on and conditional to her request that she be allowed to designate
Luke’s primary residence. Because the denial of Sally’s residential-designation request
was not an abuse of discretion, her child-support request became moot. Cf.
Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) (“[A] judgment must be
supported by the pleadings . . . . Thus, a party may not be granted relief in the
absence of pleadings to support that relief.”); Zafft v. GC Servs., L.P., No. 14-09-00563-
CV, 2010 WL 3866490, at *4 n.4 (Tex. App.—Houston [14th Dist.] Oct. 5, 2010, pet.
denied) (mem. op.) (recognizing conditional claim for attorney’s fees became moot
once no recovery found on breach-of-contract claim). We cannot find an abuse of
discretion under these circumstances and overrule issue four.
IV. CONCLUSION
Contrary to Sally’s argument, there was not an unacceptable analytical gap
between Elliott’s expert opinion about Luke’s best interest and the data she relied on;
thus, the trial court did not abuse its discretion by admitting her expert report and her
testimony based on the report. The trial court also did not abuse its discretion by
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modifying the custodial-exchange location based on competing evidence of a change
in circumstances since the SAPCR order and of Luke’s best interest. Similarly and
presuming all findings in support of the trial court’s ruling, the evidence regarding
whether Sally should have the right to designate Luke’s primary residence amply
supported the trial court’s discretionary decision to deny Sally’s request. Finally,
because Sally’s request for child-support payments from Peter and Tina was
conditional to her request to designate Luke’s primary residence, the trial court’s
implicit denial was not an abuse of discretion. Thus, after considering all the evidence
and finding no abuse of discretion, we affirm the trial court’s modification order,
which was signed June 24, 2019.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: April 9, 2020
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