in the Interest of K.A.S.B.

• Court: Court of Appeals of Texas
• Decided: July 26, 2007
• Docket: 09-06-00454-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-06-454 CV

IN THE INTEREST OF K.A.S.B.

On Appeal from the 411th District Court

San Jacinto County, Texas

Trial Cause No. CV11,379

MEMORANDUM OPINION

This is an appeal from a judgment modifying the terms of a joint managing conservatorship. Finding no reversible error, we affirm.

Procedural Background

Appellant Leia Soetaert-Lee and appellee Henry Beaulier are the parents of the minor child K.A.S.B. A district court in Harris County determined Henry to be the child's father in a suit to establish parentage. In its final order in that proceeding, which was entered in 2001, the Harris County court named Leia and Henry joint managing conservators of K.A.S.B. and assigned to Leia "the sole right to establish the primary residence of the child." After the case was transferred to San Jacinto County, Henry filed a petition to modify the parent-child relationship. In his petition, Henry requested that the trial court modify the Harris County court's order by appointing him as the person who has the right to designate K.A.S.B.'s primary residence.

After conducting a hearing on Henry's petition to modify, the trial court entered a modification order that granted Henry "the exclusive right to designate the primary residence of the child without regard to geographic location[.]" Leia then filed this appeal, in which she contends the trial court "erred by applying an erroneous standard in a modification proceeding[,]" and in excluding the substantive testimony of a mental health professional, and she also argues the "evidence is legally and factually insufficient to support the trial court's modification order permitting the father to determine the primary residence of the child."

The Evidence

At the hearing on Henry's petition to modify, Henry's sister Tiki testified that K.A.S.B. suffers from asthma, and she indicated that Henry does not smoke. Henry's sister Angel testified that she is employed as a supply chain security analyst, and her job entails researching publicly-available data about people. Angel explained that she helped Henry prepare for trial by doing online research for him. Angel testified that she discovered that a male with whom Leia and K.A.S.B. traveled on an unidentified date had been charged with "sexual contact of a child" in 2006 and he had also been arrested for manufacturing a controlled substance and possession of a controlled substance in 2006. Angel further explained that she found an "asthma fact sheet" on the American Lung Association's ("ALA's) website, and that fact sheet was quite similar to one Leia had given to her, but unlike the ALA's fact sheet, the sheet Leia provided did not list secondhand cigarette smoke as an asthma trigger.

Henry testified that Leia took K.A.S.B. to the emergency room in March of 2005 when K.A.S.B. suffered from shortness of breath, and K.A.S.B. was given medications for asthma and an upper respiratory infection. According to Henry, K.A.S.B. did not have any asthma attacks during the month K.A.S.B. spent with him in Maine, and K.A.S.B. had never had an asthma attack while in his care. Henry testified that he used to smoke, but he stopped smoking after an emergency room physician told him and Leia in 2002 that it was very dangerous to expose K.A.S.B. to cigarette smoke. Henry testified that to his knowledge Leia did not stop smoking. ⁽¹⁾ Henry also explained that Leia had failed to allow him visitation under the final order in the suit to establish parentage, and she was found in contempt of court. In addition, Henry testified that Leia had married.

Leia testified that she and K.A.S.B. currently reside in a townhome in Coldspring, and K.A.S.B. is attending public school. According to Leia, asthma is the only health complaint K.A.S.B. has. Leia also testified that she and K.A.S.B. had previously lived in a residence in Odessa, and they were "without water for a little while." Leia further explained that she was not employed full time, her parents are providing her with money to pay her rent and buy food, and she does not own a vehicle.

Issues One and Three

In her first issue, Leia asserts the trial court erred by applying an erroneous standard for the modification proceeding. Specifically, Leia notes that although Henry had the burden to prove that circumstances had materially and substantially changed since the 2001 order, the trial court's conclusions of law merely stated that circumstances have "changed" since the 2001 order. See Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2006). In her third issue, Leia argues the evidence is legally and factually insufficient to support the trial court's modification order. As a sub-part of issue three, Leia asserts that there is no evidence of a material and substantial change in circumstances "because there is no evidence of the circumstances existing in 2001." We address these issues together.

We review the trial court's findings of fact for legal and factual sufficiency. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In considering whether the evidence is legally sufficient, we consider only the evidence and inferences tending to support the trial court's findings and disregard all evidence to the contrary. Anderson v. City of Seven Points, 806 S.W.2d 791, 794-95 (Tex. 1991). We must consider the evidence in the light most favorable to the trial court's findings and indulge every reasonable inference that would support them. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit favorable evidence if a reasonable trier of fact could and disregard contrary evidence unless a reasonable trier of fact could not. Id. at 827. However, we must not substitute our judgment for that of the trial court as long as the evidence falls within the zone of reasonable disagreement. Id. at 822. As fact finder, the trial court assesses the credibility of witnesses. Zagorski v. Zagorski, 116 S.W.3d 309, 318 (Tex. App.--Houston [14th Dist.] 2003, pet. denied).

In reviewing the factual sufficiency of the evidence, we must weigh all of the evidence in the record. Ortiz, 917 S.W.2d at 772. We may overturn the trial court's findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. Findings of fact have the same force and dignity as a jury verdict. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). However, when, as here, a complete reporter's record appears in the appellate record, findings of fact are not conclusive on appeal if the contrary is established as a matter of law or if there is no evidence to support the finding. Material P'ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); see also Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.--San Antonio 1995, writ denied).

We review the trial court's conclusions of law de novo, and the standard of review is whether they are correct. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Material P'ships, 102 S.W.3d at 257. The trial court's conclusions of law are not binding on the appellate court. However, we will uphold the trial court's conclusions of law on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id.

"A trial court's order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion." Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.--El Paso 2000, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex. App.--Corpus Christi 1992, writ denied)). A trial court abuses its discretion when it acts arbitrarily and unreasonably, or without reference to any guiding principles. Downer v. Aquamarine Opers., Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Because the trial court can best observe the witnesses and determine their credibility, the trial court does not abuse its discretion "as long as some evidence of a substantive and probative character exists to support the trial court's decision." Jenkins, 16 S.W.3d at 477.

Henry had the burden to prove that "the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since . . . the date of the rendition of the order[.]" Tex. Fam. Code Ann. § 156.101. The trial court heard testimony that Leia and K.A.S.B. had traveled with a male who was later charged with sexual contact of a child. The trial court also heard testimony that K.A.S.B. suffers from asthma, and that contrary to medical advice, Leia continued to smoke around K.A.S.B. Moreover, the trial court heard testimony that Leia had married.

Viewing the evidence in the light most favorable to the findings supporting the trial court's order, we conclude the evidence is legally sufficient to support the modification order. See City of Keller, 168 S.W.3d at 822. Furthermore, reviewing all of the evidence in the record, the findings supporting the trial court's modification order are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. The evidence is factually sufficient to support the trial court's modification order. Because the trial court's order is supported by legally and factually sufficient evidence, the trial court did not abuse its discretion in entering the modification order. See Jenkins, 16 S.W.3d at 477. Although the trial court's conclusion of law did not expressly state that circumstances had "materially and substantially" changed, the trial court must have found that such a change had occurred, since the trial court modified the order by giving Henry the sole right to determine K.A.S.B.'s primary residence. See Tex. Fam. Code Ann. § 156.101. Accordingly, we overrule issues one and three.

Issue Two

In her second issue, Leia argues the trial court "erred by excluding the substantive testimony of the only mental health professional called to testify." After Henry's counsel rested, Leia's attorney called licensed professional counselor Theresa Burbank to testify. Henry's counsel objected on the ground of surprise and asserted that Leia's attorney had not timely supplemented discovery with information regarding Burbank. After both counsel took Burbank on voir dire, the trial court sustained the objection regarding lack of adequate notice. Rule 193.5(b) of the Texas Rules of Civil Procedure provides as follows: "An amended or supplemental [discovery] response must be made reasonably promptly after the party discovers the necessity for such a response. Except as otherwise provided by these rules, it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly." Tex. R. Civ. P. 193.5(b). Matters regarding the admissibility of evidence are within the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The record reflects that Leia's counsel did not supplement discovery with Burbank's report until September 11, 2006, four days before the final hearing was held. ⁽²⁾ Therefore, the trial court did not abuse its discretion by excluding Burbank's testimony. See Tex. R. Civ. P. 193.5(b); Downer, 701 S.W.2d at 241-42. We overrule issue two and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on April 12, 2007

Opinion Delivered July 26, 2007

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. In chambers, K.A.S.B. stated that Leia sometimes smokes around the child.

2. The witness interviewed the child four times beginning August 21, 2006, and provided her report to Leia's counsel on September 11, 2006. Leia's counsel provided the report to Henry's counsel the day it was received by them.