In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00396-CV __________________
IN THE INTEREST OF G.J.G.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18-11-14466-CV __________________________________________________________________
MEMORANDUM OPINION
Less than two years after they divorced, G.J.G.’s mother filed a
petition to modify the joint managing conservatorship provisions in a
Final Decree of Divorce (the Decree), which controls her rights of
possession and access to her son, whom we shall call Guy. 1 Following a
trial to the bench, the trial court signed an order denying Mother’s
petition, and Mother appealed. 2
1A pseudonym. See Tex. Fam. Code Ann. § 109.002(d). 2Father did not appeal.
1 Mother raises two issues in her appeal. In Mother’s first issue, she
argues the trial court erred in finding that the circumstances of the child,
a conservator, or other party affected by the provisions that established
Guy’s conservatorship have not materially and substantially changed
since the trial court signed the Decree on January 4, 2019. In Mother’s
second issue, she argues the trial court erred when the court sustained
an objection to a question that her attorney asked Father about his plans
for Guy. 3 We conclude that Mother’s first issue lacks merit and that her
second issue wasn’t properly preserved for our review. For the reasons
explained below, we will affirm.
Background
The trial on Mother’s petition to modify occurred in September
2021. In the proceedings that led to this appeal, Mother wasn’t the only
one who wanted to have the joint custody arrangement that the 2019
Decree created modified. The record shows that Father responded to
Mother’s petition to modify by filing a counterpetition to modify the
Decree. In their respective petitions, both parties asked that the trial
court name them as the person with the right to designate Guy’s primary
3See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
2 residence. Additionally, Mother asked that the trial court modify several
of the custodial provisions in the Decree by awarding her the exclusive
right to consent to Guy’s medical treatment and make decisions about
how he should be educated. Mother also asked that the trial court modify
the 2019 Decree to require Father to pay child support. For his part,
Father’s petition asked that the trial court alter the custodial provisions
in the 2019 Decree by giving him the exclusive right to consent to Guy’s
medical treatment and the exclusive right to decide how Guy should be
educated. Father’s petition also asked that the trial court modify the
Decree by basing the parties’ possessory rights on the right in a standard
possession order.
Six witnesses testified in the hearing the trial court conducted in
September 2021 on Mother’s and Father’s respective petitions to modify
the conservatorship provision in the 2019 Decree: (1) Mother; (2) Father;
(3) Sheryl—who taught Guy in kindergarten; (4) Lisa—Guy’s teacher at
LearningRX, who testified the facility is a “cognitive brain training
center” that “works with the underlying reasons for children through
adults who struggle with learning comprehending, understanding, the
3 process of information and how that happens in the brain[;]” (5) John—
Mother’s current husband; and (6) Bob—Guy’s grandfather. 4
At trial, the evidence Mother elicited from the witnesses focused on
Mother’s request that the court modify the Decree by giving her the
exclusive right to decide how Guy should be educated rather than
requiring those decisions to continue to be made jointly with Guy’s father.
During the trial, Mother argued the trial court should award her the
exclusive right to make decisions about Guy’s education because she is
the parent who is more involved in helping Guy with his homework.
According to Mother, she is the parent who follows up and makes sure
that Guy gets his homework completed. Mother testified that she thought
the Decree needed to be changed “because there is no clear delineation of
any type of decision-making regarding [Guy’s] education.” When her
attorney asked her why she thought the current provision requiring the
parties to jointly decide how Guy should be educated should be changed,
Mother said: “Because I have been an active party in his education.”
4John and Bob are pseudonyms. See Tex. Fam. Code Ann. § 109.002(d). 4 When Mother explained how she had played an active role in Guy’s
education, Mother testified that around five months before the trial, she
had enrolled Guy in a program called LearningRx. Mother explained that
she did so because in her opinion “traditional methods were not working
through the year.” According to Mother, Father felt “indifferent” about
the program. Mother explained that Father thought the fact Guy was
progressing more slowly than others could be attributed to the fact that
he was one of the younger children in his class. Mother testified that she
disagreed with Father. Mother described Father’s attitude about her
decision to enroll Guy in LearningRX, which she explained were extra
classes that Guy took in addition to attending kindergarten, as
“indifferent.” According to Mother, Father “reported that he does not feel
it is necessarily helping [guy] or that . . . [Guy] doesn’t need to go or that
[Guy’s] not enjoying going.” Still, Mother acknowledged that when
Father has possession of Guy, he takes Guy to his sessions at
LearningRx.
Lisa, who owns LearningRx, testified that when Mother brings Guy
to his appointments, Guy “seems to be very together. He comes in ready
to work.” In her opinion, Guy has made progress since enrolling in classes
5 at Learning RX. When she was asked about how Guy acts when Father
brings him to class there, Lisa testified that Guy “wants to go play and
he wants to talk about everything except what he’s there to do.” On cross-
examination, Lisa agreed that Mother and Father have consistently
brought Guy to his appointments at LearningRX, and she said that Guy
hasn’t had many, if any, absences. Lisa also testified that when Father
brings him, Father “is supportive verbally for sure.” No one asked Lisa if
she knew anything about the terms of Guy’s joint conservatorship or
whether she thought changing them might affect Guy.
Sheryl, Guy’s kindergarten teacher testified that she has “forty-
plus years” experience teaching kindergarten. Sheryl said that based on
her experience, boys are more prone to progress slower in school,
especially in their younger years. According to Sheryl, Guy was one of the
youngest students that she had in her class.
When asked about Guy, Sheryl testified that Guy “had some
learning difficulties” when she had him as a teacher last year. 5 Sheryl
recalled that Guy had some problems remembering letters, with sounds,
5By the context of Sheryl’s testimony, we assume Sheryl was referring to the September 2020-May 2021 school year, but she wasn’t specifically asked about the year she had Guy in her class. 6 reading, and math. According to Sheryl, she talked with Mother and
Father several times about Guy’s issues. By Sheryl’s account, Mother and
Father were both receptive and active in Guy’s education. Sheryl testified
that Father attended most of Guy’s school events and conferences. And
Sheryl said that Father was just as active as Mother in Guy’s education.
As Sheryl saw it, Sheryl testified that Mother and Father both wanted
what was in Guy’s best interest.
Mother’s attorney asked Sheryl whether she knew that Mother had
enrolled Guy at LearningRX. Sheryl testified that she was aware Mother
had enrolled Guy there. According to Sheryl, Guy’s reading skills didn’t
improve after he was enrolled in classes at LearningRX. But Sheryl
agreed that she noticed that by the end of the school year, Guy could
count to a hundred.
When Mother testified, she said the reason she thought the existing
conservatorship order needed to be changed was because “there is no
clear delineation of any type of decision-making regarding Guy’s
education.” According to Mother, when Guy was with her, she helped him
with his homework on a more consistent basis compared to Father. She
testified: “I was consistent with doing them and there was a consistency
7 where they were not done during [Father’s] time.” Mother also testified
that she wanted Guy vaccinated against COVID-19, while Father was
against having Guy take the vaccine. Mother also complained that
Father failed to enroll Guy in any extracurricular activities, while she
had taken the initiative to enroll Guy in a program for summer camp.
Even though Mother criticized Father, Mother conceded that Guy
loves Father and enjoys being with him. Yet Mother would not concede
that she and Father are equally good parents. But on cross-examination,
she agreed that Father is active in Guy’s life and provides Guy a safe and
stable home. She also conceded that Father attended most of the parent-
teacher conferences that occurred at Guy’s school. She also agreed that
Father offered to have Guy psychologically tested. But according to
Mother, Guy’s problem is “an educational problem,” not “a psychological
issue.”
Father’s attorney brought out the fact that since Mother and Father
divorced, Mother has remarried, and she has had arguments with her
current spouse. On cross-examination, Mother conceded that after her
divorce from Father she remarried, and since remarrying she has called
Father twice late at night and asked Father to pick her up from her house
8 after she and her spouse have argued. According to Mother, she called
Father because it was “where I felt the safest place to be at that time
where I could go and just not have to deal with an argument.” Mother
also admitted that her spouse has been gone from home for about a month
but that now he is “back home to his parents’ house or his mom’s house
in Dallas.”
When Father testified, he explained that he planned for Guy to
continue to go to school, to continue to take the extra classes at Learning
RX, and to continue with his extracurricular activities. During the
upcoming year, Father said that he had plans to take Guy camping, to
the beach, to take him fishing, and to take Guy to car shows. Father
testified that his plans for Guy included other outdoor activities too.
As to Father’s involvement in Guy’s education, Father testified that
in the past year he attended Guy’s graduation from kindergarten. Father
also testified that he had attended several parent-teacher events.
According to Father, he was “very involved” when Guy was in
kindergarten, and he is now involved with Guy in first grade. Father
explained that he has no plans to enroll Guy in a different school, and
that he personally has no plans to move or relocate. Father testified that
9 when Guy is with him and they are home, he spends time with Guy using
educational aids like triangles, squares, money, and flash cards.
Father testified that he wanted Guy to be “tested for other focus-
oriented, you know, behaviors and disabilities.” In January 2021, Father
explained that he met with healthcare professionals at a health and
wellness treatment center to learn about an evaluation for children who
have disabilities. Father said he made the appointment with the
treatment center after Guy’s kindergarten teacher called him and
discussed her concerns about Guy’s progress in kindergarten. Father
explained that he didn’t know whether Guy’s school had recommended
that Guy be tested for disabilities.
Father confirmed that in February 2021, he picked Mother up from
her house after Mother had called and said that she and her husband had
argued. According to Father, “the general consensus of it was that she
was in duress.” Father testified Mother was “anxious” but she was quiet
and didn’t say what was wrong when he took her to his home. Father also
testified that Mother also called him several times one evening in July
2021 and told him that she was arguing with her spouse. When asked if
he had concerns about the stability of Mother’s home, Father responded,
10 “Absolutely.” Even so, Father testified that he believes Mother is a “good
mom.”
When John (Mother’s husband) testified in the trial, he admitted
that he and Mother had on occasion argued. John explained that on at
least one or two of those occasions, Mother left the house to “de-escalate
the situation.” John said that during the pandemic he lost his job, so he
moved out of the house “for his mental health” because he “felt like [he]
was letting the family down.” Yet John testified that once he got a job, he
“came back and we’ve been a happy family since then.”
Bob (Guy’s grandfather) testified that typically, he sees Guy once a
month. Bob described Mother (his daughter) as a loving and kind parent
who wants “to make sure that he gets the best that he can.”
When the hearing ended, the trial court denied Mother’s petition
and Father’s counterpetition to modify the parent-child relationship. At
Mother’s request, the trial court filed Findings of Fact and Conclusions
of Law. In its findings of facts and conclusions of law, the trial court
found:
[T]he circumstances of the child, a conservator, or other party affected by the Decree of Divorce have not materially and substantially changed since the date of the rendition of [conservatorship provision in the 2019 Decree]. The Court
11 also did not find that modifying the Decree of Divorce was in the child’s best interest.
Standard of Review
We use an abuse of discretion standard to review a ruling
challenging an order establishing a joint managing conservatorship.6 A
trial court abuses its discretion if it acts arbitrarily or without reference
to any guiding rules or principles. 7 “In determining whether a trial court
abused its discretion, we view the evidence in the light most favorable to
the trial court’s decision and indulge every legal presumption in favor of
the judgment.” 8 We will reverse the trial court’s judgment only when it
appears from the record as a whole that the trial court has abused its
discretion. 9
“The trial court is given wide latitude in determining the best
interest of a minor child.” 10 “The question of conservatorship of a child is
6In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie,
644 S.W.2d 449, 451 (Tex. 1982). 7Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985); In the Interest of M.A.M., 346 S.W.3d 10, 13 (Tex. App.— Dallas 2011, pet. denied). 8See In re W.J.B., 294 S.W.3d 873, 878 (Tex. App.—Beaumont 2009,
no pet.) (cleaned up). 9See In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). 10Gillespie, 644. S.W.2d at 451.
12 left to the sound discretion of the trial court when it sits as trier of fact.”11
“The trial court is in the best position to observe the demeanor and
personalities of the witnesses and can ‘feel’ the forces, powers, and
influences that cannot be discerned by merely reading the record.”12
Therefore, as the factfinder the trial court may “reject the uncontroverted
testimony of an interested witness unless it is readily controvertible, it is
clear, positive, direct, and there are no circumstances tending to discredit
or impeach it.” 13 Finally, when the evidence admitted in the trial
conflicts, the reviewing court must presume the factfinder resolved the
inconsistencies in a way that favors the prevailing party, and the
reviewing court must disregard the conflicting evidence when conducting
its legal sufficiency review. 14
“In family law cases, the traditional sufficiency standard of review
overlaps with the abuse of discretion standard; thus, legal and factual
sufficiency are not independent grounds of error but are relevant factors
in assessing whether the trial court had sufficient evidence to exercise its
11Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002,
no pet.). 12Id. 13In re Jane Doe 4, 19 S.W.3d 322, 325 (Tex. 2000). 14See City of Keller v. Wilson, 168 S.W.3d 892, 822 (Tex. 2005).
13 discretion.” 15 “This standard has been distilled into a two-pronged
inquiry: (1) whether the trial court had sufficient information upon which
to exercise its discretion; and (2) whether the trial court erred in its
application of discretion.” 16 The second part of the inquiry requires the
reviewing court to determine whether the trial court made a reasonable
decision after considering the evidence presented. 17
Analysis
The Petition to Modify Guy’s Conservatorship
In Mother’s first issue, she argues the trial court erred in finding
that the circumstances of the child, a conservator, or other party affected
by the conservatorship orders, which the trial court included in the 2019
Decree, have not materially and substantially changed since the trial
court signed the Decree. To obtain a modification of the terms and
conditions of the terms of Guy’s joint managing conservatorship, Mother
needed to secure findings that:
15In re E.R.A., No. 09-20-00042-CV, 2021 Tex. App. LEXIS 2026, at
*11-12 (Tex. App.—Beaumont 2021, no pet.) (mem. op.); In re R.H.C., No. 09-15-00429-CV, 2016 Tex. App. LEXIS 11388, at *12 (Tex. App.— Beaumont Oct. 20, 2016, no pet.). 16In the Interest of M.A.M., 346 S.W.3d at 13; see also In re E.R.A.,
2021 Tex. App. LEXIS 2026, at *11-12. 17In re E.R.A., 2021 Tex. App. LEXIS 2026, at *12.
14 (1) A decision modifying the prior conservatorship orders in the 2019 Decree is in the best interest of the child. (2) The circumstances of the child, a conservator, or other party affected by the previous order have materially and substantially changed since the trial court rendered the conservatorship orders in the 2019 Decree. 18
According to Mother, the evidence before the trial court establishes
that the 2019 conservatorship orders had become unworkable or
inappropriate. Mother argues that she presented “more than enough”
evidence for the trial court to have named her as Guy’s “primary
conservator.” But we note that Mother’s standard misstates what she
must establish to prevail, as she must show the trial court didn’t have
sufficient information to exercise its discretion and that it erred in
exercising its discretion by choosing not to modify the conservatorship
provisions in the 2019 Decree.
We turn first to Mother’s argument that the trial court erred in
failing to find “the circumstances of the child, a conservator, or other
party affected by the Decree of Divorce have not materially and
substantially changed since the date of the rendition of that order.”
According to Mother, because Mother and Father both filed petitions
18See Tex. Fam. Code Ann. § 156.101(a) (Grounds for Modification
of Order Establishing Conservatorship, or Possession and Access). 15 claiming that a material and substantial change in circumstances had
occurred since the trial court signed the 2019 Decree, the allegations in
their petitions were binding on the trial court as judicial admissions. As
judicial admissions, Mother argues the trial court was bound to find that
a material and substantial change in Guy’s circumstances had occurred
after January 4, 2019, the day the trial court signed the 2019 Decree.
We acknowledge that pleadings may sometimes operate as judicial
admissions and be binding on the parties as judicial admissions as to the
facts that the pleadings admit. For example, in two family-law cases, In
re D.E.T. and In the Interest of A.E.M., we held that the parties’ respective
petitions and counter-petitions to modify the conservatorship orders
operated as judicial admissions and held the judicial admissions in the
pleadings supported the rulings of those trial courts to modify the
conservatorship orders that were at issue in those appeals. 19 Yet in those
cases—unlike what occurred here—the trial courts in D.E.T. and A.E.M.
found in each case that a material or substantial change had occurred
19In re D.E.T., No. 09-22-00197-CV, 2023 WL 4940623, at *7 (Tex.
App.—Beaumont Aug. 3, 2023, no pet. h.) (mem. op.); In the Interest of A.E.M., No. 09-18-00288-CV, 2020 WL 826715, at *10 (Tex. App.— Beaumont Feb. 20, 2020, no pet.). 16 since the trial court had signed its prior conservatorship order. 20 Here,
the trial court found against both parties’ claims when it found that no
material change had occurred.
Thus, while the trial court’s finding here is inconsistent with the
parties’ cross pleadings, it is the trial court who must decide whether the
parties have shown a substantial and material change in circumstances
had occurred and that a modification is in the best interest of the child.
That said, the rules of error preservation required that Mother, as the
party who intended to rely on the judicially admitted fact, to comply with
the rules of error preservation to avoid waiving the admission to rely on
any judicially admitted facts in the partis’ pleadings. 21 The problem of
error preservation wasn’t an issue that was presented to us in D.E.T. or
A.E.M. 22
20Id. 21See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989) (holding that “a party waives the right to rely upon an opponent’s deemed admissions unless an objection is made to the introduction of evidence contrary to those admissions”); see also Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983); Restelle v. Williford, 364 S.W.2d 444, 446 (Tex. Civ. App.—Beaumont 1963, writ ref’d n.r.e.); Tex. R. App. P. 33.1. 22Id.
17 Under Texas law, a judicial admission is a formal waiver of proof,
which dispenses with the production of evidence on an issue and bars the
admitting party from disputing it. 23 Admissions in trial pleadings are
regarded as judicial admissions, judicially admitted facts require no
proof, and a party may not introduce evidence that contradicts a
judicially admitted fact. 24 Even so, “a party relying upon an opponent’s
pleadings as judicial admissions of fact must protect the record by
objecting to the introduction of controverting evidence and to the
submission of any issue bearing on the facts admitted.” 25
On appeal, Mother’s sole argument is that, because the parties
judicially admitted in their pleadings that a material and substantial
change in Guy’s circumstances had occurred, the trial court abused its
discretion in finding that a material and substantial change had not
occurred. 26 The record shows that Mother didn’t object to the evidence
23Blair v. Blair, 642 S.W.3d 150, 159 (Tex. App.—El Paso 2021, no
pet.). 24See In re D.E.T., 2023 WL 4940623, at *7. 25Marshall, 767 S.W.2d at 700; see also Houston First Am. Sav., 650
S.W.2d at 769; Restelle, 364 S.W.2d at 446. 26We note that Mother might have argued that other circumstances
of the child had changed since January 2019. For example, she could have argued: (1) that she remarried, separated, and reunited with Guy’s stepfather; (2) that she and Father enrolled Guy in classes at Learning 18 that the trial court relied on in finding that the circumstances of the
child, a conservator, or other party affected by the Decree had not
materially and substantially changed since January 2019. On the
contrary, the reporter’s record shows that Mother’s attorney elicited
much of the evidence that the circumstances of their joint management
conservatorship had not materially or substantially changed since
January 2019. The evidence presented in the trial shows that in
November and December 2020, when Mother and Father filed the
respective petitions seeking to modify the parent-child relationship, they
were jointly managing Guy under the terms and conditions of the trial
court’s January 2019 Decree. During the trial, Mother testified that she
and Father each had Guy on alternating weeks and lived around “a 30-
minute drive one way.” Yet no evidence shows the alternating week
schedule or the length of the drive changed between January 2019 and
Rx; and (3) that she and Father couldn’t agree on whether Guy should receive a COVID-19 vaccine when and if the vaccine were approved for children of Guy’s age. That said, the Texas Supreme Court has repeatedly cautioned courts of appeals against addressing unassigned error. For that reason, we will not address an argument that is neither raised nor briefed. See, e.g., Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex. 1987); see also Tex. R. App. P. 38.1(i). 19 the trial. When Mother was asked why she thought the conservatorship
order should be changed, she testified that she wanted to be named Guy’s
primary custodian because there isn’t a “clear delineation of any type of
decision-making regarding [Guy’s] education.” She said she wanted that
role because she took a more active role than Father in Guy’s education.
The evidence about whether Mother was a more active parent than
Father also conflicted. Father testified about the active role he played in
Guy’s education and described the many parent-teacher conferences he
had attended at Guy’s school. And even though Mother testified that
Father never helped Guy with his homework, Guy’s kindergarten teacher
testified that there were never any issues with Guy getting his homework
done regardless of which parent dropped him off at school.
When deciding whether to modify a prior conservatorship order, a
trial court doesn’t abuse its discretion “if its order is supported by some
evidence of a substantive and probative character.” 27 By failing to object
to the evidence showing Guy’s circumstances had not materially and
substantially changed in the hearing, we hold that Mother waived her
27In re A.E.D., No. 09-13-00555-CV, 2014 Tex. App. LEXIS 10587,
at *7 (Tex. App.—Beaumont Sept. 4, 2014, pet. denied). 20 claim that the trial court erred in failing to find that a substantial and
material change had occurred based on a judicial admission in the
parties’ pleadings that Mother waived. 28
And even had Mother not waived her claim that the trial court was
bound to find that a material and substantial change had occurred based
on the parties’ pleadings, Mother would still be required to demonstrate
that the trial court erred in finding that she failed to prove that modifying
the conservatorship provisions in the Decree would be in Guy’s best
interest. 29 According to Mother, the trial court abused its discretion by
not naming her as Guy’s primary conservator because the evidence “was
legally and factually sufficient to support that it was in the child’s best
interest to give [her] the right to determine the primary residence of the
child and decision-making rights.”
As the parent seeking to modify the conservatorship provision in
the 2019 Decree, Mother had “the burden to establish by a preponderance
of the evidence that the modification would be in the best interest of the
28See Marshall, 767 S.W.2d at 700; Tex. R. App. P. 33.1. 29Tex. Fam. Code Ann. § 156.101(a).
21 child.” 30 However, the trial court’s findings of fact state that the trial
court “did not find that modifying the Decree of Divorce was in the child’s
best interest.” On appeal, Mother argues the trial court had “more than
enough” evidence “to have determined that modification would be in the
best interest of the child[.]” To support that argument, Mother points to
her testimony describing what she characterizes as the lead role she took
in educating Guy when comparing her role to that of the role she claims
Father played, which Mother characterized in her brief as seemingly
“indifferent.’”
The trial court heard conflicting evidence about the factors relevant
to conservatorship, possession, and access—the Holley factors. 31 The
evidence admitted in the hearing didn’t address all the relevant Holley
factors; instead, it focused on the parenting skills of the parties, their
plans for the child, the stability of Mother’s and Father’s homes, and the
existing parent-child relationship that Guy has with his parents.
The question for a reviewing court is whether the trial court had
sufficient evidence upon which to exercise its discretion and whether the
30Id.; see In the Interest of J.G.M., No. 09-11-00368-CV, 2012 Tex.
App. LEXIS 4300, at *2 (Tex. App.—Beaumont May 31, 2012, no pet.). 31Holley, 544 S.W.2d at 371-72.
22 trial court erred in the application of its discretion. 32 From the evidence,
the trial court could have reasonably concluded that Guy’s parents both
take active roles in parenting Guy, have a good relationship with him,
and provide Guy with a safe and stable home. We conclude Mother failed
to meet her burden to prove that changing the terms of Guy’s joint-
managing conservatorship, as established by the 2019 Decree, is in Guy’s
best interest.
Consequently, we hold the trial court did not abuse its discretion by
denying Mother’s petition to modify the 2019 Decree. 33 We overrule
Mother’s first issue.
Evidence of Future Plans
In issue two, Mother argues that the trial court “erred by not
allowing [her attorney] to ask questions of [Father] that were related to
[the] Holley Factors.” To support her claim, Mother relies on the trial
court’s ruling sustaining the following objections to two questions that
Mother’s attorney asked when examining Father:
Mother’s Attorney: As far as plans go, what kind of plans do you have for [Guy]?
32In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11-12. 33See Gillespie, 644 S.W.2d at 451.
23 Father’s Attorney: Objection; vague.
Trial Court: Sustained.
Mother’s Attorney: What do you want [Guy] to be when he grows up?
Father’s Attorney: Objection; relevance.
Trial Court: Sustained. Is he 6 or 7?
Mother’s Attorney: Well, I – I thought the plans for the child were relevant in a custody case.
Trial Court: Well, maybe in the next couple of weeks but not when he – not when he’s 18 or 20.
After the trial court indicated the questions were relevant but that
the questions should be tied to Guy’s more immediate future, Mother’s
attorney questioned Father about his plans for Guy during the next
school year. There were no objections to these questions, and Mother’s
attorney didn’t try to question Father about his plans for Guy in the next
two, three, four, or five years. Nonetheless, Mother argues that because
the two questions the trial court prevented her attorney from asking
Father were about a Holley Factor, the questions “cannot be found to be
irrelevant when it comes to determining the best interest of the child[.]”
24 We review a trial court’s ruling admitting or excluding evidence
under an abuse of discretion standard. 34 Here, we agree with the general
proposition that evidence about a parent’s plans for a child is relevant to
a court’s decision about whether a party’s proposal to modify the terms of
a court-ordered conservatorship is likely to serve the child’s best
interest. 35 Even so, relevant evidence may still be excluded by a trial
court if the trial court decides it is needlessly cumulative of other
evidence admitted in the trial. 36
We need not decide whether the trial court erred in sustaining
objections to the two questions that are at issue here, however, because
we don’t know what Father would have said had he answered the
questions. To preserve error when a court excludes evidence, the Rules of
Evidence require the party to “inform the court of its substance by an
offer of proof, unless the substance was apparent from its context.”37
What a witness would have said in response to a question is important to
the appellate court’s analysis of whether the appellant was harmed since
34In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). 35See Holley, 544 S.W.2d at 372. 36See Tex. R. Evid. 403. 37Id. 103(a)(2).
25 the party that appeals from a trial court’s judgment must demonstrate
that the trial court’s “error probably caused the rendition of an improper
judgment[.]” 38
After the trial court sustained the objection of Father’s attorney to
the questions about Father’s plans for Guy, Mother’s attorney never
made an offer of proof, an offer that would have informed the trial court
(and this Court) of the substance of what Mother claims Father would
have said had he been required to answer. We can’t now know whether
Father’s answers might have been cumulative of the answers later
provided when asked about his plans for Guy in the upcoming year. We
also can’t now know whether if Father had answered, his answers would
have been material to the decision the trial court made in denying
Mother’s petition. Thus, Mother can’t demonstrate that the error
probably caused the rendition of an improper judgment. 39 We hold that
by failing to make an offer of proof, Mother failed to preserve the
38Tex. R. App. P. 44.1(a)(1). 39Id.
26 complaint she raised in her second issue for our review in her appeal.40
We overrule Mother’s second issue.
Conclusion
Having overruled Mother’s issues, the judgment of the trial court is
AFFIRMED.
HOLLIS HORTON Justice
Submitted on August 21, 2023 Opinion Delivered December 21, 2023
Before Horton, Johnson and Wright, JJ.
40See Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018) (“If a court
ruling excludes evidence, a party must preserve error by filing an offer of proof informing the court of the substance of the excluded evidence.”). 27