Seth Douglas v. Christyl L. Douglas

• Court: Court of Appeals of Texas
• Decided: January 11, 2024
• Docket: 01-22-00568-CV
• Status: Published

Opinion

Opinion issued January 11, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00568-CV ——————————— SETH DOUGLAS, Appellant V. CHRISTYL L. DOUGLAS, Appellee

On Appeal from the 310th District Court Harris County, Texas Trial Court Case No. 2014-56152

MEMORANDUM OPINION

After a jury trial on competing petitions to modify the parent-child

relationship as to three children, the trial court entered an order removing Seth

Douglas (Father) as a joint managing conservator and appointing Christyl L.

Douglas (Mother) as the sole managing conservator. On appeal, Father contends (1) the evidence was legally and factually insufficient to support the jury’s

conservatorship finding and (2) the trial court erred by excluding certain evidence

that would have rebutted Mother’s claim that her designation as sole managing

conservator was in the children’s best interest. Because we conclude that sufficient

evidence supports the jury’s verdict and that Father cannot show harmful evidentiary

error, we affirm.

Background

Father and Mother divorced in June 2015. Relevant here, the agreed divorce

decree appointed Father and Mother as joint managing conservators of their son and

two daughters, with Mother having the exclusive right to designate the children’s

primary residence.

Four years later, conflict between Mother and Father concerning the children

came to a head. Father refused to return the two daughters to Mother when a holiday

possession period ended. He claimed the son had assaulted one of the daughters,

making it unsafe for the daughters to return to Mother’s house with the son.

Mother filed an emergency petition to modify the parent-child relationship.

Father filed a counterpetition the same day. Each parent sought (1) temporary orders

giving them immediate possession of the daughters, (2) the removal of the other as

a joint managing conservator, and (3) their own appointment as the children’s sole

managing conservator. The trial court signed interim temporary orders requiring

2 Father to return the daughters to Mother and prohibiting the son from being around

the daughters without adult supervision.

The case proceeded through discovery to trial. At trial, each party offered

evidence of their struggle to coparent and challenged the other’s parental fitness.

The jury found that the joint managing conservatorship should be replaced by a sole

managing conservatorship in favor of Mother. The trial court entered a final order in

accordance with the jury’s verdict.

Modification of Conservatorship

In his first issue, Father argues that the evidence is legally and factually

insufficient to support the jury’s finding that appointing Mother sole managing

conservator was in the children’s best interest because Mother alienated the children

from Father.

A. Standard of Review

Because a trial court has broad discretion to decide the best interest of a child

in family law matters such as custody, visitation, and possession, we typically review

a decision to modify conservatorship for an abuse of that discretion. Epps v. Deboise,

537 S.W.3d 238, 242 (Tex. App.—Houston [1st Dist.] 2017, no pet.). But when, as

here, there was a jury trial, the trial court may not contravene the jury verdict on the

appointment of a sole managing conservator. See TEX. FAM. CODE

§ 105.002(c)(1)(A). Instead, the jury’s verdict is reviewed for legal and factual

3 sufficiency. See, e.g., Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex. 2002) (applying legal

sufficiency standard to review to jury verdict for modifying divorce decree to

remove residency restriction); Epps, 537 S.W.3d at 242–43 (applying legal and

factual sufficiency standards to jury verdict for modifying conservators’ rights).

We will sustain a legal sufficiency or “no evidence” challenge if the record

shows: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence

bar the court from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the

evidence establishes the opposite of the vital fact. Epps, 537 S.W.3d at 242 (citing

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). In our legal sufficiency

review, we consider the evidence in the light most favorable to the verdict and

indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d

at 822. When the evidence permits only one inference, it may not be disregarded by

either the jury or the reviewing court. Id. But if the evidence at trial enables

reasonable and fair-minded people to differ in their conclusions, the jury must be

allowed to do so. Id. A reviewing court cannot substitute its judgment for that of the

jury, so long as the evidence falls within this zone of reasonable disagreement. Id.

In our factual sufficiency review, we consider all the evidence that supports

or contradicts the jury’s verdict. Epps, 537 S.W.3d at 243 (citing Plas-Tex, Inc. v.

U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989)). We set aside a verdict only if

4 the evidence supporting it is so contrary to the overwhelming weight of the evidence

as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

Epps, 537 S.W.3d at 243. The jury is the sole judge of the credibility of the witnesses

and the weight of their testimony. Golden Eagle Archery v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003).

B. Analysis

The party seeking to modify the parent-child relationship must show that

(1) there has been a material and substantial change warranting the modification

since the last order establishing conservatorship of the child and (2) the modification

would be in the best interest of the child. TEX. FAM. CODE § 156.101(a)(1)(A); see

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re K.D.B., Nos. 01-18-00840-CV

& 01-18-00843-CV, 2019 WL 4065276, at *7 (Tex. App.—Houston [1st Dist.] Aug.

29, 2019, no pet.) (mem. op.).

The first element is not at issue here. By alleging in his counterpetition that

circumstances relevant to the appointment of a conservator and the terms of the

conservatorship had materially and substantially changed, Father judicially admitted

the first element. See In re A.N.G., 631 S.W.3d 471, 479–80 (Tex. App.—El Paso

2021, no pet.) (“In a modification proceeding, if both parties’ claims contain the

common essential element of changed circumstances . . . , one party’s allegation that

the essential element is met constitutes a judicial admission.”); see also Hill v.

5 Steinberger, 827 S.W.2d 58, 61 (Tex. App.—Houston [1st Dist.] 1992, no

writ) (admissions in trial pleadings are observed as judicial admissions and require

no proof of the admitted act). Consequently, he may not (and does not) challenge the

sufficiency of the evidence supporting a material and substantial change in

circumstance. See In re A.E.A., 406 S.W.3d 404, 410–11 (Tex. App.—Fort Worth

2013, no pet.).

Instead, our sufficiency analysis focuses on the second element—whether the

modification is in the children’s best interest. “The best interest of the child is always

the primary consideration in resolving issues of conservatorship, possession, and

access concerning a child.” Moreno v. Perez, 363 S.W.3d 725, 737 (Tex. App.—

Houston [1st Dist.] 2011, no pet.); see TEX. FAM. CODE § 153.002. We use the

non-exhaustive list of Holley factors to determine best interests. See Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include (1) the child’s

desires; (2) the child’s emotional and physical needs 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 child’s best interest; (6) the plans for the child by the

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

(8) the parent’s acts or omissions which may show that the existing parent-child

relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions.

6 Moreno, 363 S.W.3d at 737 (citing Holley, 544 S.W.2d at 371–72). In the context of

custody modification, other factors to be considered include the children’s need for

stability and the need to prevent constant litigation in child-custody cases. In re

V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

According to Father, it was not in the children’s best interest to designate

Mother sole managing conservator because the evidence showed that Mother

alienated the children from him. Father cites cases recognizing that a child’s best

interest may be affected by parental alienation. See, e.g., Garcia v. Harding, No. 01-

07-01049-CV, 2008 WL 4965358, at *4 (Tex. App.—Houston [1st Dist.] Nov. 20,

2008, no pet.) (mem. op.) (“Poisoning a child’s mind against a parent or hampering

a child’s ability to favorably associate with the other parent may further affect a

child’s best interest.”); In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex.

App.—Amarillo 1996, no writ) (same). He also points to his own testimony that,

before trial, he had not seen his daughters in four months (missing 47 visits) and his

son in eight months (missing 134 visits). Father attributed the missed visits to

Mother’s “vindictiveness.” And he complained that Mother disparaged him in front

of the children by calling him “shitty,” “an asshole,” and “the devil’s douche bag.”

Contrary to Father’s characterization, the evidence of parental alienation by

Mother was conflicting. While Mother did not dispute that Father had missed visits

with the children, she denied interfering with the parent-child relationship. Instead,

7 Mother blamed Father’s own actions for any strain in his relationship with the

children. According to Mother, Father and the son are estranged at least in part

because Father had called the police on the son more than once and the son viewed

his relationship with Father as detrimental to his mental health. Mother also testified

that one of the daughters no longer wishes to visit with Father. She described the

children crying before Father’s possession periods. She described her own efforts to

encourage the children to see Father. And she described Father’s refusal to address

the strained parent-child relationships despite her repeated urgings.

As the sole judge of the weight and credibility of the evidence, the jury could

have reasonably credited Mother’s account of events, despite Father’s assertion of

parental alienation. See Golden Eagle Archery, 116 S.W.3d at 761; Epps, 537

S.W.3d at 243. And other evidence supported Father’s removal as joint managing

conservator. For instance, the jury heard testimony that Father was prone to

outbursts; fabricated the son’s assault against one of the daughters to justify denying

Mother access to the daughters; kept the daughters out of school for 21 days, causing

them to fall behind and resulting in truancy charges; and failed to keep the daughters

neat, clean, and well-groomed. The jury also heard testimony Mother’s and Father’s

inability to coparent sometimes prevented the children from obtaining medical and

psychological care.

8 Viewing this evidence in the appropriate light, we conclude the jury’s finding

designating Mother as sole managing conservator is supported by legally and

factually sufficient evidence. We overrule Father’s first issue.

Evidentiary Rulings

In his second and third issues, Father contends the trial court abused its

discretion by excluding untimely evidence under Texas Rule of Civil Procedure

193.6—namely, (1) audio recordings of Mother and Grandmother acknowledging

the son’s assaults against his sisters, and (2) his fiancée’s testimony. See TEX. R.

EVID. 193.6 (providing for exclusion of testimony and evidence not timely disclosed

in discovery responses).

A. Standard of Review and Applicable Law

We review the trial court’s decision to exclude evidence for an abuse of

discretion. McBride v. McBride, 396 S.W.3d 724, 730 (Tex. App.—Houston [14th

Dist.] 2013, pet. denied). If we find the trial court abused its discretion by excluding

evidence, the complaining party must still show that the erroneous evidentiary ruling

was harmful. See TEX. R. APP. P. 44.1(a); City of Brownsville v. Alvarado, 897

S.W.2d 750, 753 (Tex. 1995). Evidentiary error is not reversible on appeal unless it

“probably caused the rendition of an improper judgment.” See TEX. R. APP. P.

44.1(a)(1); Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014). This usually

requires the complaining party to show that the judgment turns on the excluded

9 evidence. City of Brownsville, 897 S.W.2d at 753–54; see Tex. Dep’t of Transp. v.

Able, 35 S.W.3d 608, 617 (Tex. 2000) (in determining harm, court ordinarily will

not reverse judgment when evidence in question is not controlling on material issue

dispositive to case).

While a reviewing court sometimes can discern from the record the gist of the

excluded evidence and the propriety of the trial court’s ruling without an offer of

proof or a formal bill of exception, it cannot determine whether exclusion of the

evidence was harmful. Fletcher v. Minn. Min. & Mfg. Co., 57 S.W.3d 602, 608 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied). Failure to preserve the excluded

evidence in the record through an offer of proof or bill of exception results in waiver

of any error in its exclusion. See Akukoro v. Akukoro, No. 01-12-01072-CV, 2013

WL 6729661, at *6 (Tex. App.—Houston [1st Dist.] Dec. 19, 2013, no pet.) (mem.

op.); see TEX. R. EVID. 103(a)(2) (error may not be based on ruling which excludes

evidence unless substance of the evidence was made known to the court by offer, or

was apparent from the context).

The trial court excluded both the audio recordings and the fiancée’s testimony

under Rule 193.6, which provides that discovery that is not timely disclosed and

witnesses that are not timely identified are inadmissible at trial. See TEX. R. CIV. P.

193.6(a). Father asserts on appeal that the excluded evidence was admissible under

10 exceptions to the exclusionary rule. He argues the audio recordings were admissible

under Rule 193.6’s good-cause exception because he could not retrieve the

recordings from his computer before trial. See TEX. R. CIV. P. 193.6(a)(1) (court may

admit evidence if “there was good cause for the failure to timely make, amend, or

supplement the discovery response”). He also argues, under Rule 193.6’s

no-unfair-surprise exception, that Mother could not have been surprised by audio

recordings of her own conversations. See TEX. R. CIV. P. 193.6(a)(2) (court may

admit testimony if “failure to timely make, amend, or supplement the discovery

response will not unfairly surprise or unfairly prejudice the other parties”). Finally,

as to his fiancée’s testimony, Father argues it too was admissible under the

no-unfair-surprise exception because his fiancée was Mother’s friend “at one time,”

Mother knew Father was cohabitating with the fiancée, and the fiancée was

identified by name and phone number in discovery responses and on Father’s trial

witness list. See id.

Even if we assume, without deciding, that the trial court abused its discretion

by excluding the audio recordings and the fiancée testimony under Rule 193.6,

Father has not met his burden to show that the complained-of error probably resulted

in the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).

Father asserts that exclusion of the evidence was harmful because it prevented

him from attacking the credibility of Mother’s allegations and key witness

11 testimony—including from Mother and Grandmother—on disputed facts. But Father

neither made an offer of proof before the trial court nor filed a formal bill of

exception preserving the excluded evidence. Consequently, the record on what the

excluded evidence would show is limited. Because the audio recordings are not

contained in the record, the record does not reveal the details of any assaults Mother

or Grandmother claimed to witness between the children.1 And while the record

reveals that Father’s fiancée was present at some events Mother pointed to as reasons

to remove him as a joint managing conservator, it does not reveal what she would

have to say about those events. We therefore cannot determine whether the excluded

audio recordings or fiancée testimony were controlling on any material issue. See

Able, 35 S.W.3d at 617.

We hold that Father did not preserve his complaints of harmful error resulting

from the exclusion of evidence for our review. See Akukoro, 2013 WL 6729661, at

*7 (holding complained-of evidentiary error was waived when excluded evidence

1 We note that Father’s arguments on appeal concern audio recordings of “either [Mother] or [Grandmother] talking about the son’s assaults on the daughters.” But at trial, Father offered recordings of only Grandmother, not Mother. Father asserted the recordings of Grandmother could be used to (1) refresh Grandmother’s recollection that she had claimed to witness “her grandson on more than one occasion assault his sisters” and (2) show that her trial testimony to the contrary was not truthful. Father asserted the recordings also included conversations with Mother in a post-judgment motion for new trial. But he does not complain of the denial of his new-trial motion on appeal. 12 was not preserved in record through offer of proof or bill of exception). We overrule

Father’s second and third issues.

Conclusion

We affirm the trial court’s order.

Sarah Beth Landau Justice

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.