in the Matter of the Marriage of Ephraim Karsagi and Alyssa Lyn Karsagi and in the Interest of E.B.K. and A.Y.K., Children ( 2022 )


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  •                           NUMBER 13-20-00077-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    IN THE MATTER OF THE MARRIAGE OF EPHRAIM KARSAGI AND
    ALYSSA LYN KARSAGI AND IN THE INTEREST OF E.B.K. AND A.Y.K.,
    CHILDREN
    On appeal from the County Court at Law No. 1
    of Brazos County, Texas.
    MEMORANDUM OPINION
    Before Justices Benavides, Longoria, and Tijerina
    Memorandum Opinion by Justice Benavides
    Appellant Alyssa Lyn Karsagi appeals from a final decree of divorce that dissolved
    her marriage to appellee Ephraim Karsagi. In two issues, Alyssa argues that: (1) the trial
    court’s judgment is void because Ephraim was appointed sole managing conservator of
    the parties’ children despite his failure to plead for such relief; and (2) the trial court
    abused its discretion by entering an order deviating from the standard possession order
    based on findings unsupported by the evidence. We affirm.
    I.       BACKGROUND1
    Ephraim was born and raised in Jerusalem, Israel and Alyssa was born and raised
    in Crosby, Texas. The parties met in Jerusalem while Alyssa was a graduate student at
    the Rothberg International School embedded within the Hebrew University in Jerusalem.
    The parties started dating in July 2010 and were married in December 2011.
    Although their departures from Israel were staggered, the parties eventually moved
    to Texas for Alyssa’s work and for Ephraim’s schooling. After leaving Israel, Ephraim
    began a Ph.D program at Texas A & M University. During their marriage, the Karsagis
    had two children: E.B.K. and A.Y.K., born in November 2015 and July 2017, respectively.
    The parties dispute the reason their relationship ultimately broke down, but both parties
    contend they suffered some form of abuse within their relationship. Ultimately, the parties
    separated on March 5, 2018.
    On March 27, 2018, Ephraim filed for divorce and requested that the parties be
    appointed joint managing conservators of the children. Alyssa filed her answer on April
    23, 2018, and her original counterpetition for divorce on June 14, 2018, in which she
    requested that she be appointed sole managing conservator of the children. That
    summer, the trial court appointed an amicus attorney for the children and ordered a
    custody evaluation be performed by Dr. Kim Arredondo, a licensed psychologist. On
    September 5, 2018, the court ordered the parties to surrender the children’s passports to
    1 This appeal was transferred to this Court from the Tenth Court of Appeals in Waco by order of
    the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority
    to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer).
    2
    the court for safekeeping.
    On October 18, 2018, the parties had a temporary orders hearing. From the date
    of the parties’ separation to the date of the temporary orders hearing, Ephraim alleged
    Alyssa had not permitted him to see the children for more than a handful of hours,
    because she claimed that he “needed to get help.” After the temporary orders hearing,
    the court found that there was “a clear indicia of parental alienation,” and ordered the
    children be immediately turned over to Ephraim. Alyssa was to have no possession of the
    children until January 18, 2019, when a temporary standard possession order would then
    commence.
    However, three days before the standard possession schedule was to start,
    Ephraim requested a temporary restraining order and moved for a modification of the
    temporary orders. Attached to Ephraim’s motion was an affidavit from Dr. Arredondo, the
    child custody evaluator, who attested that while conducting the evaluation she became
    “concerned for the immediate safety and welfare of the children” based on the lack of
    child proofing in Alyssa’s new residence, Alyssa’s inability “to provide appropriate medical
    care for the children,” and her fear that Alyssa was “a flight risk with the children.” A
    hearing was held on this motion on March 12, 2019, and the temporary orders were
    modified to permit Alyssa four hours of supervised visitation on the Sunday following the
    first, third, and fifth Fridays of each month.
    On April 2, 2019, Dr. Arredondo’s 130-page child custody evaluation was filed with
    the court. For purposes of conducting the evaluation, Dr. Arredondo interviewed both
    parties, the parties’ family members and friends, and former and current therapists and
    3
    doctors. She also reviewed the case record, evidence, hearing transcripts, and
    psychological and psychiatric literature.
    According to Dr. Arredondo, Alyssa was “extremely resistive” throughout the
    course of her psychological evaluation. The evaluation explains that Alyssa sought sole
    managing conservatorship of the children due to “serious concerns about [Ephraim’s]
    behavior and his mental stability.” Alyssa reported witnessing Ephraim putting “bullets in
    a gun and put[ting] it to his head or mouth in front of Alyssa and [the] children at least 20-
    40 times.” Alyssa also reported that “he threatened to kill the kids.” According to the
    evaluation, Ephraim told Alyssa “that he would make sure that [she] and the children
    would never be allowed to leave, that he was only looking for jobs in Texas[,] and that he
    would never allow [them] to return home to Israel.”
    Ephraim admitted to Dr. Arredondo that he experienced suicidal ideation during
    the parties’ relationship. He also acknowledged in his deposition that he put a gun to his
    head “between ten and twenty” times. Ephraim specified that this happened once in
    Alyssa and E.B.K.’s presence, and all the other times that he could remember happened
    outside of their presence. Ephraim attributed his self-harming behavior and suicidal
    ideation to “severe psychological duress” from being “trapped under Alyssa’s tyranny over
    [his] life and the kids’ lives.” Ephraim contended that Alyssa consistently berated and
    scolded him, and his self-harming behavior was in response to this. However, he denied
    ever threatening to kill Alyssa or the children.
    The evaluation also details Alyssa’s mental health history. In 2002, around the age
    of seventeen, Alyssa was diagnosed by a medical doctor with “schizophrenia and bipolar
    4
    disorder.” Alyssa was evaluated by a psychologist later that same year and was
    diagnosed with “depression and Asperger’s Disorder.” The following year, Alyssa was
    diagnosed by two different psychologists, one of whom diagnosed Alyssa with
    “depression, anxiety, and obsessive-compulsive symptoms,” and the other diagnosed
    Alyssa with “Asperger’s Disorder.”
    Dr. Arredondo disagreed that Alyssa met the criteria for Autism Spectrum Disorder,
    and instead concluded that Alyssa met the criteria for Narcissistic Personality Disorder;
    Factitious Disorder Imposed on Self (formerly known as Munchausen Syndrome) “due to
    falsely claiming that she has Asperger’s Disorder, Central Processing Disorder, auto
    immune disease, and a broken rib to name a few conditions”; and Factitious Disorder
    Imposed on Another (formerly known as Munchausen Syndrome by Proxy) “for falsely
    claiming or causing the diagnosis that [A.Y.K.] had Autism Spectrum Disorder as well as
    numerous other medical conditions for [A.Y.K.] and [E.B.K.].” Dr. Arredondo did not find
    credible Alyssa’s allegations that Ephraim was violent, and ultimately concluded that
    Ephraim was “the parent that can best meet the physical and emotional needs of the
    children.” Dr. Arredondo recommended the parties be appointed joint managing
    conservators and that Alyssa’s periods of visitation be continuously supervised.
    On July 24, 2019, Alyssa requested a jury trial and paid the requisite jury fee. See
    TEX. R. CIV. P. 216(b). The parties agreed to bifurcate the case; conservatorship would
    be decided by a jury and the division of property would be decided by the judge at a later
    date. After a seven-day jury trial, the jury returned a verdict appointing Ephraim as sole
    managing conservator. The jury also found that grounds existed for divorce and that
    5
    Alyssa had committed cruel treatment against Ephraim.
    On December 16, 2019, the trial court held a final orders hearing. Alyssa made an
    oral motion for judgment notwithstanding the verdict arguing that, because Ephraim failed
    to request sole managing conservatorship in his pleadings, the jury’s verdict should be
    set aside. The trial court denied this motion and signed a final decree of divorce the same
    day. In its decree, the trial court incorporated the jury verdict and appointed Ephraim as
    sole managing conservator and Alyssa as possessory conservator. Alyssa was also
    awarded four hours of supervised visits every first, third, and fifth Sunday of each month.
    Alyssa requested the trial court state the specific reasons for its deviation from the
    standard possession order, and the trial court issued the following as the reasons
    supporting its variance:
    1.     The age, developmental status, circumstances, needs, and best
    interests of the children;
    2.     The circumstances of EPHRAIM KARSAGI;
    3.     The circumstances of ALYSSA LYN KARSAGI;
    4.     EPHRAIM KARSAGI’s participation in parenting before the filing of
    the suit;
    5.     ALYSSA LYN KARSAGI’s inability and unwillingness to work with
    EPHRAIM KARSAGI for the best interests of the children during the
    pendency of the suit;
    6.     ALYSSA LYN KARSAGI’s history or pattern of behaviors indicating
    both factitious disorder and factitious disorder imposed on another;
    7.     ALYSSA LYN KARSAGI’s history or pattern of medical child abuse
    directed against [the children];
    8.     ALYSSA LYN KARSAGI’s potential risk of international abduction of
    the children;
    6
    9.    ALYSSA LYN KARSAGI’s history or pattern of behaviors that were
    not in the children’s best interests;
    10.   The regression of the children while in ALYSSA LYN KARSAGI’s
    possession during the pendency of the case prior to the entry of
    Temporary Orders;
    11.   The progress made by the children while in EPHRAIM KARSAGI’s
    custody during the pendency of the suit after Temporary Orders were
    issued;
    12.   ALYSSA LYN KARSAGI’s persistent efforts that [A.Y.K.] be
    perceived as on the autism spectrum despite diagnosis to the
    contrary;
    13.   ALYSSA LYN KARSAGI’s emotional and mental abuse of EPHRAIM
    KARSAGI in the presence of the children;
    14.   The jury determination of cruel treatment by ALYSSA LYN KARSAGI
    directed toward EPHRAIM KARSAGI which rendered further living
    together insupportable;
    15.   ALYSSA LYN KARSAGI’s history or pattern of denigrating and
    demeaning EPHRAIM KARSAGI both prior to and during the
    pendency of this suit and the likelihood of emotional impairment to
    the children should such denigration and demeaning continue while
    the children are in ALYSSA LYN KARSAGI’S unsupervised
    possession;
    16.   The reported nature and quality of ALYSSA LYN KARSAGI’s
    interactions with the children during the pendency of the case;
    17.   ALYSSA LYN KARSAGI’s observed inability to care for both children
    simultaneously during the pendency of the case;
    18.   The demeanor and credibility of the parties and the witnesses
    presented at trial;
    19.   The minimum restrictions and limitations on ALYSSA LYN
    KARSAGI’s possession and access that are required to protect the
    best interests of the children; and
    20.   The minimum restrictions and limitations on ALYSSA LYN
    7
    KARSAGI’s possession and access that are required to protect the
    children from the risk of abduction by ALYSSA LYN KARSAGI.
    See TEX. FAM. CODE ANN. § 153.258.
    This appeal followed.
    II.    SOLE MANAGING CONSERVATORSHIP
    In her first issue, Alyssa contends that the trial court’s final decree of divorce is
    void, as it appoints Ephraim as sole managing conservator of the children, despite his
    failure to plead for such relief. Ephraim argues that this issue has been waived.
    A.     Applicable Law & Standard of Review
    “The judgment of the court shall conform to the pleadings, the nature of the case
    proved, and the verdict, if any, and shall be so framed as to give the party all the relief to
    which he may be entitled either in law or in equity.” TEX. R. CIV. P. 301. However, “[i]n
    child custody cases, where the best interests of the child are the paramount concern,
    technical pleading rules are of reduced significance.” Messier v. Messier, 
    389 S.W.3d 904
    , 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (collecting cases). “[O]nce the
    child is brought under its jurisdiction by suit and pleading cast in terms of custody and
    control, it becomes the duty of the court in the exercise of its equitable powers to make
    proper disposition of all matters comprehended thereby in a manner supported by the
    evidence.” Leithold v. Plass, 
    413 S.W.2d 698
    , 701 (Tex. 1967). When a party fails to
    specially except to what it claims are deficient pleadings, we are to “construe the
    pleadings liberally in favor of the pleader.” Horizon/CMS Healthcare Corp. v. Auld, 
    34 S.W.3d 887
    , 897 (Tex. 2000).
    8
    Even where an issue is not raised by the pleadings, it may nonetheless be treated
    in all respects as though it has been raised by the pleadings if it is tried by express or
    implied consent. TEX. R. CIV. P. 67. Trial by consent is a doctrine that should be applied
    only in the “exceptional case in which it clearly appears from the record as a whole that
    the parties tried the unpled issue.” See In re A.B.H., 
    266 S.W.3d 596
    , 600 (Tex. App.—
    Fort Worth 2008, no pet.); see also Dahl v. Dahl, No. 10-19-00260-CV, 
    2021 WL 5637679
    ,
    at *2 (Tex. App.—Waco Dec. 1, 2021, no pet.) (mem. op.). Trial by consent “is precluded
    where proper objection is made on the record before submission to the jury.” Crowson v.
    Bowen, 
    320 S.W.3d 486
    , 488 (Tex. App.—Fort Worth, no pet.). To determine whether an
    issue was tried by consent, we examine the record not for evidence of the issue, but
    rather for evidence of trial of the issue. In re A.B.H., 
    266 S.W.3d at 600
    . “Absent trial by
    consent, judgment on an unpled action is void.” Webb v. Glenbrook Owners Ass’n, Inc.,
    
    298 S.W.3d 374
    , 380 (Tex. App.—Dallas 2009, no pet.).
    A party to a suit affecting the parent-child relationship may demand a jury trial on
    the issue of conservatorship. TEX. FAM. CODE ANN. § 105.002(c)(1). When submitting a
    jury charge, “[t]he court shall submit the questions, instructions and definitions . . . which
    are raised by the written pleadings and the evidence.” TEX. R. CIV. P. 278. If a party
    believes her opponent’s pleadings are insufficient to give rise to a specific question,
    definition, or instruction in the jury charge, she must present an objection to the charge
    before it is submitted to the jury. See TEX. R. CIV. P. 274; Cruz v. Andrews Restoration,
    Inc., 
    364 S.W.3d 817
    , 830 (Tex. 2012); see also In re J.M.M., No. 13-20-00086-CV, 
    2021 WL 4897665
    , at *6 (Tex. App.—Corpus Christi–Edinburg Oct. 21, 2021, no pet.) (mem.
    9
    op.). Failing to raise an objection to a jury charge prior to its submission not only waives
    any complaint to the charge on appeal, but it also “squanders judicial resources,
    decreases the accuracy of trial court judgments and wastes time the judge, jurors,
    lawyers, and parties have devoted to the case.” Cruz, 364 S.W.3d at 830; see TEX. R.
    CIV. P. 272, 274.
    B.     Analysis
    While Alyssa requested that she be appointed sole managing conservator of the
    children, Ephraim only pleaded for joint managing conservatorship. We examine the
    record for evidence that appointing Ephraim as sole managing conservator was tried by
    consent. See In re A.B.H., 
    266 S.W.3d at 600
    .
    In his trial summary filed on October 31, 2019, Ephraim described the issue of
    conservatorship as follows: “Each parent now seeks managing conservatorship of the
    children. Both parties have ple[aded] for Sole Managing Conservatorship or, alternatively,
    Joint Managing Conservatorship with the right to designate the primary physical
    residence of the children.” On the first day of trial, during Ephraim’s cross-examination,
    counsel for Alyssa asked, “And now you’re asking this Court to give you unrestricted
    domicile as part of the sole managing conservatorship, correct?” Ephraim equivocated in
    his answer to this question, and Alyssa’s counsel moved on. During closing argument,
    the attorneys for both parties asked the jury to appoint their client as sole managing
    conservator of the children. In her closing argument, the amicus attorney for the children
    recommended that Ephraim be appointed sole managing conservator of the children and
    that Alyssa be appointed possessory conservator. Alyssa did not object to any of the
    10
    foregoing.
    When an issue is developed at trial and submitted in the jury charge without
    objection, it has been tried by consent. Ingram v. Deere, 
    288 S.W.3d 886
    , 893 (Tex.
    2009). The facts surrounding the jury charge in this case are analogous to those in In re
    Walters, 
    39 S.W.3d 280
    , 289–90 (Tex. App.—Texarkana 2001, no pet.). The Sixth Court
    of Appeals described those facts as follows:
    The record reveals that the parties agreed on the jury charge at the end of
    trial and that neither party objected to it.
    ....
    The jury was charged on the meaning of the terms conservator and joint
    managing conservator, and the factors to consider in determining whether
    to name a party joint managing conservator. The jury was also charged as
    to the respective rights and duties of sole managing conservators. In
    addition, the jury was charged that it was to consider the qualifications of
    each party without regard to their gender or marital status in determining
    which party to appoint sole managing conservator, whether to appoint a
    party joint managing conservator, and the terms and conditions of
    conservatorship.
    The jury charge consisted of two questions. The first question asked, “Who
    should be appointed managing conservator of the child?” The jury was
    instructed to choose either [appellee], [appellant], or both. The second
    question, which the jury was to answer if they named [appellee] and
    [appellant] joint managing conservators, asked which of them should have
    the right to determine [the child]’s primary residence.
    
    Id. at 289
    .
    In this case, the parties agreed on the jury charge at the end of the trial, and Alyssa
    solely objected to the charge on the basis that it omitted a question on the issue of family
    violence.2 See 
    id.
     The jury charge contained information concerning the respective rights
    2   However, the jury charge did include a definition of family violence that partially mirrored the
    11
    and duties of sole managing conservators, joint managing conservators, and possessory
    conservators. See 
    id.
     Additionally, the jury was instructed to consider certain factors in
    determining whether the appointment of the parties as joint managing conservators was
    in the children’s best interest. See 
    id.
     The jury was instructed to consider the qualifications
    of each party in determining which party to appoint sole managing conservator or whether
    to appoint the parties joint managing conservators, and to disregard the gender and
    marital status of each party in making these determinations. See 
    id.
     The charge asked
    the jury to determine “[w]ho should be appointed managing conservator of the children”
    and permitted the jury to “answer by naming one parent sole managing conservator or by
    naming both parents joint managing conservators.” See 
    id.
    We conclude that, based on the development of the issue at trial and Alyssa’s
    failure to object to the charge prior to its submission, the issue of Ephraim’s appointment
    as sole managing conservator was tried by consent. See 
    id. at 290
    ; Ingram, 288 S.W.3d
    at 893.
    Nevertheless, in her reply brief and during argument before this Court, Alyssa
    contended that the oral motion for judgment notwithstanding the verdict raised at the final
    orders hearing over a month after the jury returned its verdict was sufficient to preserve
    this issue.3 A judgment notwithstanding the verdict is appropriate when the evidence is
    Texas Family Code’s definition and instructed the jury that “[a] person may not be appointed a joint
    managing conservator if that person has a history or pattern of past or present child neglect or of physical
    abuse directed against a parent, spouse, or a child.” See TEX. FAM. CODE ANN. §§ 71.004(1), 153.004(b).
    3 We note that after her motion for judgment notwithstanding the verdict was denied, counsel for
    Alyssa conceded that “[she] agree[d] that based on the jury . . . verdict that [her] client should be appointed
    possessory conservator.” The final decree of divorce proposed by Alyssa and admitted as an exhibit during
    the final orders hearing also appointed Ephraim as sole managing conservator and Alyssa as possessory
    conservator.
    12
    conclusive and one party is entitled to prevail as a matter of law, or when a legal principle
    precludes recovery. Hous. Med. Testing Serv., Inc. v. Mintzer, 
    417 S.W.3d 691
    , 695 (Tex.
    App.--Houston [14th Dist.] 2013, no pet.). The trial court denied Alyssa’s motion for
    judgment notwithstanding the verdict and entered its final decree of divorce appointing
    Ephraim sole managing conservator and Alyssa as possessory conservator “based upon
    the jury verdict issued on November 14, 2019.”
    Even if we concluded that this issue was not tried by consent, we are skeptical that
    Alyssa’s motion for judgment notwithstanding the verdict properly preserved any error.
    See TEX. R. APP. P. 33.1(a)(1)(B) (“As a prerequisite to presenting a complaint for
    appellate review, the record must show that . . . the complaint was made to the trial court
    by a timely request, objection or motion that . . . complied with the requirements of the . . .
    Texas Rules of Civil . . . Procedure.”); TEX. R. CIV. P. 274 (“Any complaint as to a question
    definition, or instruction, on account of any defect, omission, or fault in pleading, is waived
    unless specifically included in the objections.”).
    In cases where the issue of conservatorship has been decided by a jury, the trial
    court has no discretion to set aside the verdict. See TEX. FAM. CODE ANN.
    § 105.002(c)(1)(A) (“[T]he court may not contravene a jury verdict on . . . the appointment
    of a sole managing conservator.”); Lenz v. Lenz, 
    79 S.W.3d 10
    , 20 (Tex. 2002); Epps v.
    Deboise, 
    537 S.W.3d 238
    , 242 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Alexander
    v. Rogers, 
    247 S.W.3d 757
    , 761 (Tex. App.—Dallas 2008, no pet.); Harris v. Tex. Dep’t.
    of Fam. & Protective Servs., 
    228 S.W.3d 819
    , 822 (Tex. App.—Austin 2007, no pet.);
    Corrales v. Dep’t. of Fam. & Protective Servs., 
    155 S.W.3d 478
    , 488 (Tex. App.—El Paso
    13
    2004, no pet.) (“[S]ubsection (c)(1)(A) mandates that the court may not contravene a jury
    verdict concerning the appointment of a sole managing conservator. Simply stated, the
    court may not enter a judgment notwithstanding the verdict.”); see also In re L.S., No. 04-
    20-00383-CV, 
    2021 WL 6127924
    , at *7 (Tex. App.—San Antonio Dec. 29, 2021, no pet.)
    (mem. op.).
    In argument before this Court, Alyssa contended that the Texas Family Code gives
    the trial court the ultimate authority to determine conservatorship. See TEX. FAM. CODE
    ANN. § 153.005(a)(1) (“In a suit . . . the court . . . may appoint a sole managing
    conservator or may appoint joint managing conservators[.]”). However, we aim to
    construe statutes in harmony with one another. See State v. Newton, 
    179 S.W.3d 104
    ,
    109 (Tex. App.—San Antonio 2005, no pet.); Duarte v. Disanti, 
    292 S.W.3d 733
    , 735
    (Tex. App.—Dallas 2009, no pet.). Thus, we construe Texas Family Code § 153.005(a)
    and § 105.002(c)(1)(A) together and conclude that the trial court was permitted to appoint
    Ephraim sole managing conservator because the jury returned a verdict appointing him
    sole managing conservator. See TEX. FAM. CODE ANN. §§ 105.002(c)(1)(A), 153.005(a).
    Alyssa requested a jury verdict on the issue of conservatorship, and she received
    a jury verdict on the issue of conservatorship. “Having failed to except to the lack of
    pleadings at any point during trial,” Alyssa has waived this issue for our review. See
    Murray v. O & A Express, Inc., 
    630 S.W.2d 633
    , 637 (Tex. 1982).
    We overrule Alyssa’s first issue.
    III.   DEVIATION FROM STANDARD POSSESSION ORDER
    In her second issue, Alyssa argues that the trial court abused its discretion by
    14
    deviating from the standard possession based on findings unsupported by the evidence.
    A.     Standard of Review
    A trial court is given wide latitude in determining issues pertaining to possession
    and access, and an appellate court will only reverse the court’s order if it abused that
    discretion. Smith v. Smith, 
    143 S.W.3d 206
    , 214 (Tex. App.—Waco 2004, no pet.); In re
    T.J.S., 
    71 S.W.3d 452
    , 458 (Tex. App.—Waco 2002, pet. denied); In re S.H., 
    590 S.W.3d 588
    , 592 (Tex. App.—El Paso 2019, pet. denied); Syed v. Masihuddin, 
    521 S.W.3d 840
    ,
    847 (Tex. App.—Houston [1st Dist.] 2017, no pet.). A trial court abuses its discretion if it
    acts without reference to any guiding rules or principles; in other words, if it acts arbitrarily
    or unreasonably. Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990); Syed, 521
    S.W.3d at 847.
    There is a rebuttable presumption that the standard possession order: (1) provides
    reasonable minimum possession of a child for a parent named as a possessory
    conservator or joint managing conservator; and (2) is in the best interest of the child. TEX.
    FAM. CODE ANN. § 153.252. However, if there is sufficient evidence to rebut this
    presumption, the trial court may deviate from the standard possession order. In re N.P.M.,
    
    509 S.W.3d 560
    , 564 (Tex. App.—El Paso 2016, no pet.) (citing TEX. FAM. CODE ANN.
    § 153.256). When deviating from the standard possession order, the trial court may
    consider: (1) the age, developmental status, circumstances, needs, and best interest of
    the child; (2) the circumstances of the managing conservator and of the parent named as
    a possessory conservator; and (3) any other relevant factor. TEX. FAM. CODE ANN.
    § 153.256.
    15
    If a trial court deviates from the standard possession order, a party may request
    that the trial court specify its reasons for the variance. Id. § 153.258. The request for
    findings supporting the variance must conform to the Texas Rules of Civil Procedure. Id.
    § 153.258(b); TEX. R. CIV. P. 296. When conflicting evidence is presented, we will not
    disturb the trial court’s credibility determinations and we presume that it resolved any
    conflict in favor of its decision. In re N.P.M., 509 S.W.3d at 565.
    B.     Analysis
    Pursuant to Alyssa’s request, the trial court issued findings of fact concerning the
    deviation from the standard possession order. See TEX. FAM. CODE ANN. § 153.258. The
    trial court listed twenty findings that it determined necessitated a deviation from the
    standard possession order. Alyssa challenges two of those findings and claims there is
    no evidence in the record to support them. Specifically, Alyssa challenges the trial court’s
    findings that Alyssa poses a “potential risk of international abduction of the children” and
    that she has a “history or pattern of medical child abuse directed against” the children.
    Alyssa does not challenge the trial court’s finding that it deviated from the standard
    possession order due to Alyssa’s “emotional and mental abuse of [Ephraim] in the
    presence of the children.” When findings of fact are filed and are unchallenged, they
    occupy the same position and are entitled to the same weight as a jury’s verdict; they are
    binding on an appellate court unless the contrary is established as a matter of law or there
    is no evidence to support the finding. McGalliard v. Kuhlmann, 
    722 S.W.2d 694
    , 696 (Tex.
    1986); Inimitable Grp., L.P. Westwood Grp. Dev. II, Ltd., 
    264 S.W.3d 892
    , 902 & n.4 (Tex.
    App.—Fort Worth 2008, no pet.). Thus, we defer to unchallenged findings of fact that are
    16
    supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 
    437 S.W.3d 518
    , 523 (Tex. 2014).
    Ephraim testified at trial that in the early morning on October 1, 2017, he discussed
    with Alyssa his decision to convert to Christianity. According to Ephraim, Alyssa
    responded by “[y]elling, shouting, screaming that [he] betrayed her to the point where at
    that time she began talking about hiring a lawyer and making sure that [Ephraim] [would]
    not see the kids unless she sa[id] [he] c[ould].” Ephraim testified that he had recorded
    Alyssa’s threats on his phone “[b]ecause [he] wanted some proof of what happen[ed]
    indoors, behind closed doors.” Alyssa noticed Ephraim recording, grabbed his phone
    away from him, and paused the recording. She then proceeded to call Ephraim’s mother
    “to tell her [Ephraim] cheated on [Alyssa] with a blond girl, which [he] did not.”
    After the phone call to his mother, Ephraim noticed that Alyssa was trying to delete
    the recording he made of the parties’ argument. Ephraim “reached and grabbed [his]
    phone” back from Alyssa “to prevent her from deleting the recording.” Later, Alyssa called
    the police about this incident. Officer Sartell of the Bryan Police Department responded
    to the call.
    According to the police report,
    [Ephraim] told [Sartell] he and his wife were arguing because he is Jewish
    and practices Judaism but is going to convert to Christianity. He said they
    have been arguing about this a couple of days[,] and today he recorded his
    wife as she threatened to leave and take the kids and not allow him to see
    his children. [Ephraim] said his wife caught him recording her and forcibly
    took his phone from him. [Ephraim] said she pushed and shoved him until
    she got the phone[,] and he took it back from her. [Sartell] was skeptical
    about this claim[,] but [Ephraim] gave [Sartell] his phone and [Sartell] was
    able to listen to the conversation. It goes along just as he said until the point
    where the wife begins to tell [Ephraim] what a horrible person he is. At that
    17
    point she exclaims ‘are you recording this[,]’ and a scuffle begins where she
    is trying to take his phone.
    The police report also details that Ephraim was holding A.Y.K. during the parties’
    argument.
    Alyssa also does not challenge the trial court’s finding that she had an “observed
    inability to care for both children simultaneously during the pendency of the case,” or that
    the “reported nature and quality of [Alyssa]’s interactions with the children during the
    pendency of the case” warranted a deviation from the standard possession order. Ken
    Ringo, one of the initial supervisors of Alyssa’s visits with the children, felt that “she wasn’t
    there as much as to spend time with [the children] as to examine them to see what kind
    of injuries, what kind of marks could be on them. That was constant throughout every
    visit.” Ringo’s records indicate that at a supervised visit on April 21, 2019, E.B.K. tried to
    hug Alyssa and Alyssa “stop[ped] him” and “push[ed] him away.”
    Ringo testified that it was typical for Alyssa to be focused on one of the children
    while the other child wandered unobserved into potential danger. For instance, one visit
    was at the Bryan Library which has “some stairs.” During the visit, A.Y.K. “ended up
    tumbling down the steps.” Ringo waited “to see if Alyssa would run over” to A.Y.K., “but
    she did not witness it at the time.” At another visit, E.B.K. “wandered down the hall” while
    Alyssa was with A.Y.K. It took “[s]even minutes before Alyssa went to go find [E.B.K.]”
    In the section on supervised visitation in the trial court’s final decree of divorce, the
    trial court specifically found that “credible evidence has been presented that ALYSSA
    LYN KARSAGI has a history or pattern of medical child abuse directed against [the
    children] . . . [and] presents a potential risk of international abduction of the children.” In
    18
    argument before this Court, Alyssa contended that the findings of fact in the judgment
    should control, and that the latter findings of fact could not constitute independent findings
    for deviation from the standard possession schedule. This contradicts the general rule
    that a trial court should not include its findings in a judgment and that latter findings will
    control if they conflict with an initial finding. See TEX. R. CIV. P. 299a; In re C.T.H.S., 
    311 S.W.3d 204
    , 206 n.1 (Tex. App.—Beaumont 2010, pet. denied).
    However, even if we concluded that the trial court’s findings recited in its judgment
    must have had support from the record, there was sufficient evidence presented that
    Alyssa posed a potential risk of international child abduction.4 On the motion of a party
    or on the court’s own motion, the court may impose preventative measures it determines
    necessary, including deviating from the standard possession order and requiring
    supervised visitation, if credible evidence is presented indicating a potential risk of the
    international abduction of a child. TEX. FAM. CODE ANN. §§ 153.501, 153.503. Texas
    courts are vested with “broad discretion in determining which preventive measures to
    impose.” In re Sigmar, 
    270 S.W.3d 289
    , 307 (Tex. App.—Waco 2008, orig. proceeding
    [mand. denied]).
    According to § 153.502(a), to determine whether there is a risk of the international
    abduction of a child by a parent of the child, the court shall consider evidence concerning
    4    Alyssa complained in her reply brief that “[t]he trial court omitted any findings that would be
    required to impose additional restrictions based on a risk of international child [abduction].” However, in her
    initial brief, Alyssa did not complain that the trial court’s findings, even if supported by sufficient evidence,
    would not permit a deviation from the standard possession order. Rather, she contended that the trial court’s
    findings were not supported by sufficient evidence. We therefore do not address the contention that the trial
    court’s findings were inadequate to deviate from the standard possession order. See TEX. R. APP. P. 38.3;
    Reyes v. Burrus, 
    411 S.W.3d 921
    , 923 n.2 (Tex. App.—El Paso 2013, pet. denied) (explaining that issues
    cannot be raised for the first time in a reply brief).
    19
    whether the parent:
    (1)    Has taken, enticed away, kept, withheld, or concealed a child in
    violation of another person’s right of possession of or access to the
    child, unless the parent presents evidence that the parent believed
    in good faith that the parent’s conduct was necessary to avoid
    imminent harm to the child or the parent;
    (2)    Has previously threatened to take, entice away, keep, withhold, or
    conceal a child in violation of another person’s right of possession of
    or access to the child;
    (3)    Lacks financial reason to stay in the United States, including
    evidence that the parent is financially independent, is able to work
    outside of the United States, or is unemployed;
    (4)    Has recently engaged in planning activities that could facilitate the
    removal of the child from the United States by the parent, including:
    a.       Quitting a job;
    b.       Selling a primary residence;
    c.       Terminating a lease;
    d.       Closing bank accounts;
    e.       Liquidating other assets;
    f.       Hiding or destroying documents;
    g.       Applying for a passport or visa or obtaining other travel
    documents for the parent or the child; or
    h.       Applying to obtain the child’s birth certificate or school or
    medical records;
    (5)    Has a history of domestic violence that the court is required to
    consider under section 153.004; or
    (6)    Has a criminal history or a history of violating court orders.
    TEX. FAM. CODE ANN. § 153.502(a).
    20
    Evidence was presented indicating that Alyssa “lacks financial reason to stay in
    the United States,” “is able to work outside of the United States,” and “is unemployed.”
    See id. § 153.502(a)(3). Alyssa messaged Ephraim the following on Our Family Wizard5
    while their divorce was pending:
    •   I have no money or job. My degree in Middle Eastern studies is only
    valuable in the Middle East. That’s why I got it . . . to live there in the
    Middle East. You know this, please.
    •   Please recall that my degree is in Middle Eastern Islamic Studies.
    That degree is really only useful in the middle east or outside of
    [T]exas[,] as we discussed. I moved to Israel where I met and married
    you because you promised that we would return[,] so I had no need
    to worry about employment. That is where my degree allows me
    employment, not here and certainly not Houston.
    •   You had and still have an offer in Israel. If we can mutually agree
    then we can settle and go and both of us would have careers and a
    chance at success. I would have opportunities in Israel for
    employment in my field. We would be back where we met and
    married, back home where we agreed to live, even in divorce, we
    had an agreement. We would have your family’s support. I will never
    have the opportunities here that I have in Israel[,] and you know this.
    Please will you compromise on anything at all?
    Dr. Arredondo testified at trial that “the flight risk issue was . . . mostly because . . .
    Alyssa repeatedly t[old] me she was not going to stay here, um, that she couldn’t find
    work here, that she had to leave Texas, and that she was applying to jobs outside of the
    state.”
    There was also evidence that Alyssa “previously threatened to take, entice away,
    keep, withhold, or conceal a child in violation of” Ephraim’s right of possession of or
    access to the child. See id. § 153.502(a)(2). While the suit was pending, the Brazos
    5
    The co-parenting app through which the parties were ordered to confine their communications
    during the pendency of the divorce.
    21
    County Standing Order was in effect and applied to both parties. The standing order
    required the parties to refrain from “[h]iding or secreting the child from the other parent”
    during the pendency of the divorce. Evidence was presented that Ephraim asked Alyssa
    numerous times to see the children after the parties separated. Despite this, evidence
    was also presented that Alyssa only permitted Ephraim to have about three hours of
    supervised access to the children from March 2018 until the temporary orders were put
    in place in October 2018. During trial, Alyssa was asked, “Did you threaten to leave and
    take the kids because [Ephraim] converted [to Christianity]?” Alyssa responded, “Not
    because he converted.”
    Evidence was also presented indicating Alyssa was engaging in “planning
    activities that could facilitate the removal of the child[ren] from the United States.” See id.
    § 153.502(a)(4). Shortly after the parties initially separated in March 2018, Alyssa
    commented on her own Facebook status, stating, “We are moving very soon.” In the same
    thread, Alyssa later asked about jobs in Israel, stating, “I can’t keep . . . [my] job in
    Jerusalem or that would be the first place I’d go. You don’t have any connections for a
    job with comparable pay there do you? Literally anywhere in Israel. All of our family is
    there.” When asked about these comments during trial, Alyssa acknowledged that she
    was contemplating going to Jerusalem at that point, despite the parties’ separation.
    Ephraim also texted Alyssa about these posts, and in response, Alyssa stated,
    “We have to move[, ] [t]he lease is up,” and “Why would we not move?” Eventually, Alyssa
    did move within the state and initially declined to disclose her new address to Ephraim.
    At the final hearing, Ephraim testified about his concern that Alyssa was making plans to
    22
    abscond with the children. According to Ephraim, at a recent supervised visit, he noticed
    that Alyssa had arrived with two car seats in her car. This caused him concern “because
    Alyssa is not—under the supervised visitation schedule, she is not to put the kids in the
    car.” Ephraim expressed that he feared someone would “take the kids and put them in
    the car” and that he would not see them again.
    The trial court was required to consider whether Alyssa was engaging in these
    planning activities as part of a safety plan to flee from family violence. See id. § 153.502(a-
    1). While Alyssa testified that Ephraim was violent towards her and the children,
    conflicting testimony was also presented by Ephraim and Dr. Arredondo that cast doubt
    on whether Ephraim was violent towards anyone other than himself. The trial court was
    in a better position to evaluate the credibility of the parties, and we must not substitute
    our judgment for that of the trial court on whose testimony should be credited or
    discredited. See City of Keller v. Wilson, 
    168 S.W.3d 802
    , 822 (Tex. 2005); Syed, 521
    S.W.3d at 850. That is not to say, though, that Ephraim pointing a gun at himself in front
    of Alyssa and E.B.K. should be ignored. Threats of suicide are often part and parcel of
    coercive, controlling behavior and violent conduct. See, e.g., Boyd v. Palmore, 
    425 S.W.3d 425
    , 428 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Turner v. State,
    No. 01-17-00563-CR, 
    2018 WL 5986440
    , at *4 (Tex. App.—Houston [1st Dist.] Nov. 15,
    2018, no pet.) (mem. op., not designated for publication); Nickelson v. State for Prot. of
    Nickelson, No. 04-17-00113-CV, 
    2018 WL 1831679
    , at *3 (Tex. App.—San Antonio Apr.
    18, 2018, no pet.) (mem. op.); Scott v. Wooley, No. 02-19-00318-CV, 
    2020 WL 7063292
    ,
    at *5 n.9. (Tex. App.—Fort Worth Dec. 3, 2020, no pet.) (mem. op.). Additionally, threats
    23
    of suicide may contribute to a finding that a parent engaged in a course of conduct that is
    detrimental to a child’s physical or emotional well-being. In re R.W., 
    129 S.W.3d 732
    , 739
    (Tex. App.—Fort Worth 2004, pet. denied); Scott, 
    2020 WL 7063292
    , at *5 n.9.
    Regardless, evidence sufficient to support an affirmative finding on only one of the
    factors in subsection (a) of Texas Family Code § 153.502 may constitute “credible
    evidence of a risk of abduction” sufficient for the trial court to then consider evidence
    relevant to the required factors under subsection (b) and the permissive factors under
    subsection (c). In re Sigmar, 
    270 S.W.3d at 300
    ; Elshafie v. Elshafie, No. 13-10-00393-
    CV, 
    2011 WL 5843674
    , at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 22, 2011, no
    pet.) (mem. op.). Under subsection (b), if the trial court finds there is credible evidence of
    a risk of abduction, the trial court is then required to consider evidence of (1) strong
    familial, emotional, or cultural ties to another country, particularly a country that is not a
    signatory to or compliant with the Hague Convention on the Civil Aspects of International
    Child Abduction; and (2) whether the parent lacks strong ties to the United States,
    regardless of whether the parent is a citizen or permanent resident of the United States.
    TEX. FAM. CODE ANN. § 153.502(b).
    Alyssa, Ephraim, and the children have both Israeli and American citizenship.
    According to Dr. Arredondo’s evaluation, Alyssa believed the parties’ goal during their
    marriage was “to get back to Israel as soon as possible.” Alyssa also reported to Dr.
    Arredondo that Ephraim “[t]old [her] that he would make sure that [she] and the children
    would never be allowed to leave, that [Ephraim] was only looking for jobs in Texas[,] and
    that he would never let [them] return home to Israel.” In her testimony, Alyssa stated that
    24
    she “was relieved” when Ephraim texted her after filing for divorce about applying for a
    job in Israel, and that she “thought he was going to fulfill his promise of getting [them] to
    a place where [they] would all live as a family.” Alyssa’s assertion on Facebook that “[a]ll
    of [her] family is” in Israel and her referral to the country as “home” indicate a strong
    familial and emotional tie to the country.
    Some evidence was also presented that indicated Alyssa did not have strong ties
    to the United States, despite being a citizen. In a text message sent to Ephraim
    concerning her parents, Alyssa stated, “They are DEEPLY disturbed people who abused
    me my entire life. I left the country to start over and ESCAPE. I came back to pay my
    debts[,] but I stayed for YOU.” She also went on to state that she wished she “had never
    left Israel.” In a text message about Ephraim’s potential job opportunities, Alyssa revealed
    that “[r]egardless of what happens between us, I am leaving.” Alyssa also stated, “I have
    always hated this place and through unhealthy relationships I was sucked back in[, ]but I
    cannot and will not stay[. ]There are 49 other American locations and other global ones.”
    Based on the evidence supporting the trial court’s unchallenged findings and its
    finding that Alyssa posed a “potential risk of international abduction of the children,” we
    conclude the trial court did not abuse its discretion in deviating from the standard
    possession schedule and awarding Alyssa supervised visitation only.6
    6 Because these findings alone are sufficient to support a deviation from the standard possession
    order, we do not address the trial court’s other findings, including whether Alyssa had a history or pattern
    of medical child abuse directed against the children. See TEX. FAM. CODE ANN. §§ 153.501, 153.503; TEX.
    R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but
    that addresses every issue raised and necessary to final disposition of the appeal.”); Syed v. Masihuddin,
    
    521 S.W.3d 840
    , 850 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“[B]ecause we conclude that the
    findings outlined above are supported by sufficient evidence to allow the trial court to make its determination
    deviating from the standard possession order and that the trial court’s determination did not constitute an
    abuse of discretion, we need not analyze every one of the remaining findings of fact.”).
    25
    We overrule Alyssa’s second issue.
    IV.    CONCLUSION
    We affirm the trial court’s judgment.
    GINA M. BENAVIDES
    Justice
    Delivered and filed on the
    24th day of March, 2022.
    26