in the Interest of B.W.C., a Child

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00473-CV

IN THE INTEREST OF B.W.C., a Child

From the County Court, Jim Wells County, Texas Trial Court No. 11-06-50160-CV Honorable David A. Sanchez, Judge Presiding

Opinion by: Liza A. Rodriguez

Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

Delivered and Filed: January 30, 2019

AFFIRMED

J.W.C. appeals the trial court’s order modifying a possession order. J.W.C. presents two

issues asserting: (1) the presiding judge abused its discretion in denying his motion to recuse the

trial judge; and (2) the trial court abused its discretion in modifying the prior order. We affirm the

trial court’s judgment.

PROCEDURAL BACKGROUND

On March 23, 2012, a final divorce decree was entered in the underlying cause appointing

J.W.C. and L.C. as joint managing conservators of B.W.C. with J.W.C. having the exclusive right

to designate B.W.C.’s primary residence with no geographic restrictions. Pursuant to the parties’

agreement, J.W.C. had possession of B.W.C. four days each week, and L.C. had possession three

days each week. At that time, J.W.C. and L.C. resided in Alice, Texas. 04-18-00473-CV

On June 8, 2013, J.W.C. remarried, and in July of 2017, J.W.C. relocated his family,

including B.W.C., to Corpus Christi, Texas. Prior to the move, J.W.C. and L.C. were alternating

possession of B.W.C. each week. Because of the distance between Alice and Corpus Christi, the

possession arrangement was not feasible after the move.

On July 7, 2017, J.W.C. filed a petition to modify the possession order to a standard

possession order. On August 2, 2017, L.C. filed a counterpetition seeking to be appointed as the

person with the exclusive right to designate B.W.C.’s primary residence and to award J.W.C.

“standard visitation and/or extra possession time by agreement between the parties.”

On October 20, 2017, the trial court signed an order appointing Tracy Bru to conduct a

child custody evaluation of the parties and to prepare a report. On March 29, 2018, J.W.C. filed a

motion to recuse the trial judge. The motion alleged the trial judge had communications with a

Homeland Security special agent via the court coordinator, and the trial judge directed his court

coordinator to send an email to Bru dated March 27, 2018, which stated the information Bru sought

from the special agent “is irrelevant to [the judge’s] decision and therefore, there is no need for

Homeland Security to provide any information to [Bru].”

On April 9, 2018, Bru filed her reports. On April 11, 2018, a hearing on the motion to

recuse was held, and the presiding judge denied the motion.

The case proceeded to a three-day bench trial held on April 12, 2018, April 13, 2018, and

May 11, 2018. At the conclusion of trial, the trial court modified the prior order giving L.C. the

exclusive right to designate B.W.C.’s primary residence and granting J.W.C. expanded visitation.

J.W.C. appeals.

RECUSAL

In his first issue, J.W.C. contends the presiding judge abused his discretion in denying the

motion to recuse the trial judge. J.W.C. asserts the trial judge engaged in ex parte communications

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with a witness and interfered with Bru’s statutory duties by preventing Bru’s investigation into

relevant claims and potentially preventing J.W.C.’s presentation of relevant evidence. As a result,

J.W.C. contends the trial judge should have been recused because his impartiality might reasonably

be questioned.

At the hearing on the motion to recuse, Bru testified she had reason to believe L.C. was not

entirely honest with regard to questions involving her prior criminal history because she “had been

given information that there were additional police reports and Homeland Security involvement

on top of the minimal information [L.C.] had originally given [Bru].” When Bru emailed a special

agent with Homeland Security, the special agent responded that there had been an investigation

and administrative issues were pending. Bru testified she did not know what that meant and sought

additional information. The special agent informed Bru she would need to submit her request in

writing with a copy of the court order appointing her as the child custody evaluator. Bru then

received the email from the court coordinator stating the trial judge indicated the information being

sought was “irrelevant to his decision” and there was no need for Homeland Security to provide

the information to Bru. Bru forwarded the email to J.W.C.’s attorney.

The court coordinator testified the special agent contacted the court by email “wanting to

know what he could respond to in reference to [Bru’s] email.” The court coordinator showed the

email to the trial judge but testified the judge did not read the email. The court coordinator further

testified the trial judge responded “to let Homeland Security know that they did not have to, I

guess, give any information regarding . . . [w]hat Tracy Bru was asking about. And that it was

irrelevant to his decision.”

We review an order denying a motion to recuse for an abuse of discretion. Drake v. Walker,

529 S.W.3d 516, 528 (Tex. App.—Dallas 2017, no pet.); Sommers v. Concepcion, 20 S.W.3d 27,

41 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); TEX. R. CIV. P. 18a(j)(1)(A). “A trial

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court abuses its discretion when it acts without reference to any guiding rules or principles, not

when it simply exercises that discretion in a different manner than reviewing appellate courts

might.” Low v. Henry, 221 S.W.3d 609, 619–20 (Tex. 2007).

The party filing a motion to recuse bears the burden of proving recusal is warranted and

must satisfy a high threshold. Drake, 529 S.W.3d at 528; Ex parte Ellis, 275 S.W.3d 109, 116

(Tex. App.—Austin 2008, no pet.). “A judge must recuse in any proceeding in which the judge’s

impartiality might reasonably be questioned.” TEX. R. CIV. P. 18b(b)(1). “The test for recusal is

whether a reasonable member of the public at large, knowing all the facts in the public domain

concerning the judge’s conduct, would have a reasonable doubt that the judge is actually

impartial.” Drake, 529 S.W.3d at 528 (internal quotation omitted). In challenging a judge’s

impartiality, “the [movant’s] burden is met only through a showing of bias or impartiality to such

an extent that the movant was deprived of a fair trial.” Id.

“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)). Judicial rulings or actions taken during the pendency of the

trial proceedings do not rise to the level of bias or impartiality “unless the actions during [the]

proceedings indicate a high degree of favoritism or antagonism that renders fair judgment

impossible.” Parker v. Cain, No. 07-17-00211-CV, 2018 WL 4997784, at *2 (Tex. App.—

Amarillo Oct. 15, 2018, no pet.) (mem. op.) (citing Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex.

App.—Houston [14th Dist.] 1997, no writ)). Stated differently, “the need for recusal is triggered

only when a judge displays an attitude or state of mind so resistant to fair and dispassionate inquiry

as to cause a reasonable member of the public to question the objective nature of the judge’s

rulings. Ex parte Ellis, 275 S.W.3d at 117 (internal quotation omitted). Given this standard, a

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party’s remedy for improper rulings is to present them as issues on appeal, not as a basis for a

recusal motion. Liteky, 510 U.S. at 555; Drake, 529 S.W.3d at 528; Sommers, 20 S.W.3d at 41.

In this case, J.W.C. contends Bru was entitled to “verify each statement of fact pertinent to

a child custody evaluation” and to obtain L.C.’s records from any governmental entity. TEX. FAM.

CODE ANN. §§ 107.108(e), 107.1111(a). J.W.C. does not, however, present an issue on appeal

challenging the trial judge’s ruling limiting Bru’s access to the records but only challenges the

presiding judge’s ruling on the recusal motion. Because the trial judge’s ruling does not display

“deep-seated and unequivocal antagonism that would render fair judgment impossible,” Liteky,

510 U.S. at 556, we cannot conclude the presiding judge abused his discretion in denying the

recusal motion. 1

MODIFICATION

In his second issue, J.W.C. contends the trial court abused its discretion in modifying the

prior order by naming L.C. as the parent with the exclusive right to designate B.W.C.’s primary

residence.

“We review a trial court’s decision to modify an order regarding conservatorship or the

terms of possession of and access to a child under an abuse of discretion standard.” In re M.G.N.,

491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied). Under an abuse of discretion

standard, legal and factual insufficiency are not independent grounds for asserting error but are

relevant factors in assessing whether a trial court abused its discretion. Smith v. Karanja, 546

S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.); In re A.G., 531 S.W.3d 329, 333

(Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial court does not abuse its discretion as long

1 In his brief, J.W.C. also refers to the trial judge having personal knowledge of disputed evidentiary facts concerning the proceedings; however, no evidence was offered at the hearing on the motion to recuse to identify any “disputed evidentiary facts” about which the trial judge had personal knowledge.

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as some evidence of a substantive and probative character supports the trial court’s exercise of its

discretion. In re A.G., 531 S.W.3d at 333; In re C.M.G., 339 S.W.3d 317, 319 (Tex. App.—

Amarillo 2011, no pet.).

Section 156.101 of the Texas Family Code sets forth the grounds upon which a trial court

may modify an order “that provides the terms and conditions of conservatorship, or that provides

for the possession of or access to a child.” TEX. FAM. CODE ANN. § 156.101(a). Such an order

may be modified if: (1) there has been a material and substantial change in circumstances since

the prior order; and (2) the modification would be in the best interest of the child. Id; In re M.G.N.,

491 S.W.3d at 405. J.W.C. challenges the trial court’s findings on both of these required elements.

To prove a material and substantial change in circumstances since the prior order, the

movant must show what conditions existed at the time of the entry of the prior order and what

material conditions have changed in the intervening period. In re S.N.Z., 421 S.W.3d 899, 909

(Tex. App.—Dallas 2014, pet. denied); In re T.W.E., 217 S.W.3d 557, 559–60 (Tex. App.—San

Antonio 2006, no pet.). “‘The controlling considerations are those changes of conditions affecting

the welfare of the child.’” Epps v. Deboise, 537 S.W.3d 238, 243 (Tex. App.—Houston [1st Dist.]

2017, no pet.) (quoting Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966)). In deciding

whether circumstances have materially and substantially changed, the trial judge is not confined

to rigid or definite guidelines. Id; In re S.N.Z., 421 S.W.3d at 910. “Rather, the determination

depends on the facts of the case and must be made according to the circumstances as they arise.”

In re S.N.Z., 421 S.W.3d at 910. Remarriage by a party and change in the home surroundings are

two examples of a material and substantial change. Smith, 546 S.W.3d at 741; In re S.N.Z., 421

S.W.3d at 909.

In this case, the trial court did not abuse its discretion in finding a material and substantial

change in circumstances because the evidence established J.W.C. remarried since the date of the

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prior order. In addition, the trial court found J.W.C., L.C., and B.W.C. all resided in Alice when

the decree was entered in 2012. Accordingly, the 2017 move to Corpus Christi necessarily

changed B.W.C.’s home surroundings because, as the trial court expressly found, the move

rendered the prior alternating possession order “unworkable.” 2

“For reviewing the best interest of the child, we rely on what are known as the Holley

factors.” Epps, 537 S.W.3d at 243 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).

The non-exhaustive factors include (1) the desires of the child; (2) the emotional and physical

needs of the child now and in the future; (3) the emotional and physical danger to the child now

and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs

available to assist these individuals to promote the best interest of the child; (6) the plans for the

child by the individuals seeking custody; (7) the stability of the home or proposed placement; (8)

the acts or omissions of the parent which may indicate that the existing parent-child relationship

is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d

at 371–72. “The factfinder is not required to consider all of the factors, and the presence of a single

factor may, in some instances, be adequate to support a best-interest finding.” Ceniseros v.

Rychlik, No. 03-17-00532-CV, 2018 WL 4265679, at *5 (Tex. App.—Austin Sept. 7, 2018, no

pet.) (mem. op.). As previously noted, under the abuse of discretion standard of review, we

examine the record and decide if some evidence of a substantive and probative character supports

the trial court’s finding that modification was in the child’s best interest. In re A.G., 531 S.W.3d

at 333; In re C.M.G., 339 S.W.3d at 319.

2 In his brief, J.W.C. cites In re H.N.T., 367 S.W.3d 901, 905 (Tex. App.—Dallas 2012, no pet.), to contend a change in location is not a material and substantial change in circumstances where the decree does not have a geographic restriction on the designation of a child’s residence. In In re C.F.M., No. 05-17-00141-CV, 2018 WL 2276351, at *4 (Tex. App.—Dallas May 18, 2018, no pet.) (mem. op.), however, the Dallas court distinguished In re H.N.T. because the mother in that case was returning to the city where she lived at the time of the divorce. The Dallas court held a move that was not anticipated at the time of a divorce is a material and substantial change in circumstances despite the absence of a geographic restriction in the decree. Id.

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In its written findings, the trial court found that since J.W.C. moved to Corpus Christi,

J.W.C. and L.C. “have been having trouble communicating and exercising court ordered custodial

rights and performing their court ordered duties under the decree.” The court further found

allowing B.W.C. to remain with L.C. in Alice provides consistency for him by allowing his

environment to remain stable “and in an environment that [B.W.C.] has known and grown up in.”

Finally, the court found B.W.C.’s best interests “include stability and the need to prevent constant

litigation in child custody cases.”

Although the interview with B.W.C. was not recorded, the trial court was aware of

B.W.C..’s desires in deciding to modify the custody arrangements. The evidence established that

after the move to Corpus Christi, J.W.C. did not allow L.C. to speak with B.W.C. for two weeks

during which period of time B.W.C. celebrated a birthday and J.W.C. evacuated the family from

Corpus Christi due to a hurricane. The evidence further established the family stayed at a hotel in

Alice for several days after the evacuation. J.W.C. testified his cell phone service was affected

during the evacuation but admitted he did not attempt the landline at the hotel. The evidence

further established L.C.’s phone contact with B.W.C. was limited from July 2017 to February of

2018, when B.W.C was given his own phone. L.C. testified that prior to February of 2018, she

probably talked to B.W.C. a couple of times a week. Furthermore, although a trial court order

allowed phone contact between the hours of 5 p.m. and 8 p.m., J.W.C. limited the contact to

between 7 p.m. and 8 p.m. In February of 2018, the trial judge ordered the parties to utilize a

parent facilitator because communication was a concern. Although L.C. met with the parent

facilitator, J.W.C. did not. Text messages between J.W.C. and L.C. were introduced into evidence

in which J.W.C. insulted L.C. supporting the trial court’s concern regarding the parties’

communication. At trial, J.W.C. even admitted that he gets frustrated with L.C. not understanding

and had “insulted her intelligence.”

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J.W.C. points to evidence that L.C.’s work schedule begins at 5:00 a.m. requiring B.W.C.

to wake up early. L.C. testified the donut shop where she works is owned by her brother, and the

evidence established B.W.C. is able to return to sleep in a place set up for him at her work until he

needs to get ready for school. In addition, L.C.’s work schedule ends at 1:00 p.m. allowing her to

pick B.W.C. up from school. J.W.C. also points to evidence that L.C. has difficultly assisting

B.W.C. with his homework; however, L.C. testified regarding the plans she has made to provide

any necessary homework assistance. Finally, J.W.C. contends L.C. does not understand how to

care for B.W.C.’s health issues; however, L.C. testified she was willing to take classes to learn

how to use an EpiPen in case B.W.C. had an allergic reaction.

Although Bru concludes in her child custody evaluations that “[t]here does not appear to

be any evidence to strongly indicate there should be a change in the current custody arrangement,”

she noted B.W.C. loves both of his parents and is quite comfortable in both homes. At trial, Bru

testified the communication between J.W.C. and L.C. needs to improve. Similarly, B.W.C.’s

therapist testified that both parents were involved and loving, and she believed she would have

been more help to the parties as a parent facilitator rather than as B.W.C.’s therapist.

Having reviewed all of the evidence presented, we hold the trial court did not abuse its

discretion in modifying the prior order by appointing L.C. as the parent with the exclusive right to

designate B.W.C.’s primary residence.

CONCLUSION

The trial court’s order is affirmed.

Liza A. Rodriguez, Justice

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