in the Interest of I.J.M., a Child

NUMBER 13-11-00459-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF I.J.M., A CHILD

On appeal from the 85th District Court
of Brazos County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
This is an appeal from the trial court's order denying appellant's motion to modify

the conservatorship provisions of a divorce decree and granting appellee, appellant's

former husband's, cross-motion to modify the same decree.1 By six issues, appellant

claims the trial court erred by: (1) excluding evidence of appellee's psychological

condition; (2) naming appellee as the parent with the right to determine the residence of

1
This case is before this Court on transfer from the Tenth Court of Appeals in Waco, Texas
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).
the child because he failed to establish a material and substantial change in

circumstances; (3) granting appellee's motion to modify because he failed to establish

that the modification was in the child's best interest; (4) denying appellant's motion to lift

the geographical restriction on her right to determine the residence of the child; (5)

modifying the decree to allow appellee to determine the residence of the child without

affording appellant the opportunity to re-establish her residence within the geographical

restriction; and (6) awarding appellee attorney's fees because there was no finding that

the fees were reasonable or necessary. We affirm.

I. PROCEDURAL BACKGROUND

The parties to this appeal are appellant, L.L., the mother of I.J.M., and appellee

E.M., I.J.M.'s father. Mother and Father met while both were doctoral candidates.

Three months after the child was born, the parties separated. Mother filed a petition for

divorce, stating that the marriage had become insupportable. In October 2009, the

parties signed a mediated settlement agreement in which they agreed that Mother would

have the exclusive right to establish the primary residence of the child in Brazos or Travis

counties or any county between the two.

On January 21, 2010, the couple divorced; the final decree was based upon the

mediated settlement agreement. The final decree incorporated the geographical

restriction. Less than a year later, Mother moved to modify the decree to give her the

exclusive right to designate the child's primary residence without regard to a geographical

restriction. Father also sought to modify the decree to allow him the exclusive right to

designate the primary residence of the child.

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 In October 2010, Mother sought a temporary order to allow her to move wherever

she was able to find employment. Father sought a temporary injunction to prevent

mother from removing the child from the geographic area that had been agreed to. In

December, an associate judge entered a temporary order that lifted the geographic

restriction and allowed Mother to relocate to Illinois with the child. Father filed a request

for a de novo hearing before the trial court, who signed a temporary order on January 27,

2011, which was consistent with the associate judge's order. A trial was held on April 4,

2011, wherein the trial court denied Mother's motion to modify and granted Father's

motion to modify, giving him the exclusive right to establish the child's residence. The

trial court filed findings of fact and conclusions of law. Mother timely perfected her

appeal.

II. ANALYSIS

A. Exclusion of Evidence

By Mother's first issue, she argues that the trial court erred in excluding evidence

with respect to her claim that Father had received an alleged diagnosis of antisocial

personality disorder. At trial, counsel for Mother asked Father about his alleged

diagnosis of antisocial personality disorder that had allegedly occurred before the

mediation. Father's counsel objected, and the court sustained the objection.

1. Standard of Review and Applicable Law

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 234 (Tex. 2011); In re J.P.B.,

180 S.W.3d 570, 575 (Tex. 2005). A court abuses its discretion when it acts without

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reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241 (Tex. 1985). To preserve error in the exclusion of evidence, a party

must: (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2)

if there is an objection, specify the purpose for which the evidence is offered and give the

trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and

(4) if the court rules the evidence inadmissible, make a record, through a bill of

exceptions, of the precise evidence the party desires admitted. Ulogo v. Villanueva, 177

S.W.3d 496, 501–02 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see TEX. R. EVID.

103(a)(2); TEX. R. APP. P. 33.1(a)(1)(B).

2. Discussion

After Father objected to the exclusion of evidence and the objection was

sustained, no further offer of proof was made by Mother. Because she failed to make an

offer of proof, her argument is waived under the relevant case law. Mother argues that

the substance of the evidence was clear from the record itself and was relevant and that if

her complaint "had been to the exclusion of evidence of the specific effect of the diagnosis

on [father], an offer of proof would have been proper." We disagree. The trial court

could reasonably have concluded that the evidence with respect to Father's psychological

condition was not relevant because it was something that had been dealt with previously.

Regardless, if Mother thought it relevant and important to the issues raised in the

modification hearing, she should have made an offer of proof so the excluded evidence

could be assessed on appeal. Without it, we cannot determine if the trial court actually

erred. We overrule issue one.

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B. Material and Substantial Change in Circumstances and Best Interest

By issues two and three, Mother claims the trial court erred in granting Father's

motion because he failed to establish a material and substantial change in circumstances

and failed to show that the modification was in the child's best interest. By issue four,

she argues that the trial court erred in denying her motion to lift the geographical

restriction on her right to determine the residence of the child. Mother also complains

that Father's supporting affidavit did not state what facts showed a material and

substantial change in circumstances. Rather, she argues that only at trial did Father

identify her move to Illinois as a significant and substantial change in circumstances.

Mother also argues that the findings of fact state that "there has been a material and

substantial change," without identifying the change entailed.

1. Standard of Review and Applicable Law

We review a trial court's decision in a case concerning a modification of

conservatorship under an abuse of discretion standard. In re M.A.M., 346 S.W.3d 10, 13

(Tex. App.—Dallas 2011, pet. denied); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex.

App.—Austin 2003, no pet.). A trial court abuses its discretion if it acts arbitrarily or

without reference to guiding principles. Downer, 701 S.W.2d at 241–42; Coleman, 109

S.W.3d at 110. We may not reverse for abuse of discretion merely because we disagree

with a decision of the trial court. Downer, 701 S.W.2d at 242.

The traditional sufficiency standard of review overlaps with the abuse of discretion

standard in family law cases; thus, legal and factual sufficiency are not independent

grounds of error but are relevant factors in assessing whether the trial court abused its

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discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). This

standard of review 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. See Vardilos v. Vardilos, 219 S.W.3d 920,

921 (Tex. App.—Dallas 2007, no pet.); Echols v. Olivarez, 85 S.W.3d 475, 477–78 (Tex.

App.—Austin 2002, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El

Paso 1998, no pet.).

According to this inquiry, the traditional sufficiency review comes into play with

regard to the first inquiry. A.B.P., 291 S.W.3d at 95; Moroch v. Collins, 174 S.W.3d 849,

857 (Tex. App.—Dallas 2005, pet. denied). Echols, 85 S.W.3d at 478. An appellate

court then must determine whether, based on the elicited evidence, the trial court made a

reasonable decision. Moroch, 174 S.W.3d at 857. If some evidence of a substantive

and probative character exists to support the trial court's decision, there is no abuse of

discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.).

The trial court, as the fact finder, is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802,

819 (Tex. 2005).

Section 156.101 of the Texas Family Code provides that a court may modify the

terms and conditions of a joint managing conservatorship when the circumstances of the

child or one or both of the conservators has materially and substantially changed since

the prior order, and the modification would be a positive improvement for and is in the best

interest of the child. TEX. FAM. CODE ANN. § 156.101 (West Supp. 2011). In reviewing

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determinations regarding modification of residency restrictions to permit a custodial

parent's relocation, we look to the public policy of the legislature as set forth in the family

code for custody issues and the guidelines developed based upon that policy. In re

Cooper, 333 S.W.3d 656, 660 (Tex. App.—Dallas 2009, orig. proceeding); see Lenz v.

Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Separated and divorced parents are encouraged to

share in both the rights and duties of raising a child. Cooper, 333 S.W.3d at 660. The

decision to determine if relocation is permitted is fact-driven. Id.; Lenz, 79 S.W.3d at

18–19.

Many factors can bear on the determination of a child's best interest in the context

of residency restrictions and relocation, including the general factors relevant to the best

interest of a child, such as (1) the child's desires; (2) the child's current and future physical

and emotional needs; (3) any physical or emotional danger to the child in the present or

future; (4) the parental abilities of the individuals involved; (5) the programs available to

those individuals to promote the child's best interest; (6) the plans for the child by these

individuals; (7) the stability of the home; (8) acts or omissions by a parent tending to show

that the existing parent-child relationship is not a proper one; and (9) any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976);

In re A.P.P., 74 S.W.3d 570, 575 (Tex. App.—Corpus Christi 2002, no pet.). These

considerations are neither exhaustive nor do all such considerations have to be proved as

a condition precedent to a best interest determination. In re C.H., 89 S.W.3d 17, 27–28

(Tex. 2002) (noting that every "best interest" factor need not be found).

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 In addition, as recognized by the supreme court in Lenz "[t]he Legislature has

provided a basic framework upon which we may build guidelines for reviewing a

modification that removes a residency restriction for purposes of relocation." 79 S.W.3d

at 14. That framework, outlined in section 153.001 of the Texas Family Code, provides

that the public policy of Texas is to:

(1) assure that children will have frequent and continuing contact with
parents who have shown the ability to act in the best interest of the
child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their
child after the parents have separated or dissolved their marriage.

TEX. FAM. CODE ANN. § 153.001(a) (West 2008); Lenz, 79 S.W.3d at 14.

2. Waiver

The trial court made very brief fact findings and conclusions of law in support of its

decision. It found that there had been a material and substantial change as to warrant a

modification of the prior orders, modification was in the best interest of the child, and it

was in the child's best interest for Mother and Father to be appointed joint managing

conservators with Father having the exclusive right to designate the child's primary

residence. Although Mother complains about the findings on appeal, at no time did she

request additional or amended findings of fact. As a result, she cannot challenge the

lack of findings or conclusions of law on appeal. See Pagare v. Pagare, 344 S.W.3d

575, 581 (Tex. App.—Dallas 2011, pet. denied); see also Smith v. Smith, 22 S.W.3d 140,

150 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ("[Appellant] had the responsibility of

requesting additional findings [of] fact and conclusions of law in connection with the

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disproportionate division of the community [estate]. By failing to request additional

findings and conclusions, [appellant] waived his right to complain on appeal about any

error he assumes the court made.") (internal citations omitted). Mother has waived the

right to complain about fact findings that were never requested.

3. The Evidence

The substance of Mother's second and third issues centers upon what she argues

is a lack of evidence to support the trial court's decision. In the fourth issue, she argues

that her motion should have been granted.

The trial court had before it seriously conflicting evidence. Generally, the

evidence was that both parents are loving parents who simply do not get along with each

other. Our review of this matter is one in which we are looking at a "cold" record, unlike

the trial court who could observe the demeanor, expressions, and sincerity of the

witnesses who came before it.

Mother testified that when she finished her Ph.D. in Chemistry at Texas A&M

University, she began looking for employment. She obtained three interviews at a job

fair in Boston and only Nalco offered her a position. The position was in Illinois, which

happened to be close to where her mother resides. Mother indicated that she probably

could have gotten a post doctoral position at Texas A&M University, but it would have

been for significantly less pay. She agreed that if she could have found a similar position

in Texas to the one she acquired in Illinois, it "would have made life a lot easier." She

described her position at Nalco as a senior chemist. She makes $83,500 a year, has

health insurance, a 401k, and an on-premises daycare. She described I.J.M. as having

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friends in Illinois and being very happy. Mother testified that she had purchased a

townhome and has good neighbors. Mother's mother and grandfather live only 35

minutes from her. Mother indicated that her family was from the Ukraine and it is

important to her that the child learn about her heritage. Mother stated that she is dating a

man employed by Brazos County Sheriff's Department and later testimony established

that they planned to be married and he planned to join her in Illinois.

Mother further testified that none of Father's family members ever inquired about

the child to her. They never sent cards or gifts to the child at Mother's address. She

also stated that she and Father do not have a good relationship. She gave examples of

how she thought he had been inflexible and uncooperative with respect to visitation.

Mother said that Father would make remarks when they were exchanging the child, such

as: "here's the woman that picks you up." There was fist-waving and Father always

videotapes the exchanges. Father was late returning the child after one of his visits in

Illinois. Mother stated that Father and his new wife showed up at the child's daycare in

Illinois because they wanted to see it. According to Mother's testimony, she would not

seek additional child support from Father because he has to travel to see the child.

On cross examination, Mother agreed that she applied for only one position in

Texas. She disagreed that there were twenty eight senior chemist positions available in

Texas for which she would qualify. Mother testified that her home had no backyard, and

that the weather is cold and treacherous. Mother agreed that she did not facilitate a

relationship with Father's family after the divorce. She denied that she moved to Illinois

in order to alienate Father from the child. She agreed that during the week, the child

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spends more time in daycare than at home. Mother testified that when she flies to Texas

for the visitations, she flies to Houston, rather than Austin, where Father resides, because

it is cheaper. Mother agreed that she has not offered Father any extra visitation.

David Drosche, Mother's boyfriend, testified that he has been to Mother's home in

Illinois and it is very nice. The child has her own room and the daycare was one of the

best he had ever seen. He has observed that Mother's family is very caring. He also

has a good relationship with the child. He noted that the child seemed as happy in Illinois

as she had been in Texas. According to Drosche, Father makes snide comments to

Mother at times when they were exchanging the child. He said he had not observed

anything which would lead him to believe that the child was not attached to her father.

Father testified that he will not be able to take the child to school or daycare if she

continues to reside in Illinois. He indicated that while the parties were attempting to use

Skype for weekday visitation, it was not working out. He believed that Mother moved for

her own best interest, not that of the child. Father believed the move had impacted his

relationship with the child. He stated that he was in the same profession as Mother, and

had not had trouble finding a job in Texas. The record reflected, however, that his salary

was much less than Mother's. According to Father, the child has a good relationship with

his extended family. Several photographs were introduced depicting his family spending

time with the child. Father did not think it was in the child's best interest to be that far

away from her extended family. He said that the child has her own room at the home he

shares with his current wife, and if he was awarded custody, they would only have the

child in daycare on Tuesdays, Wednesdays and Thursdays, because his wife has her

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own business. This would give Mother additional time for visitation. He described their

home as having a large back yard and there are parks nearby.

Father's wife testified that they had found age-appropriate art and music classes

for the child if Father was awarded custody. They found a recommended preschool that

she could attend. Father's wife testified, contrary to Mother's earlier testimony, that

Mother was responsible for the bad behavior that occurred during the transfer process.

The evidence presented was conflicting. The trial court ultimately concluded that

the decision to determine residency should be with Father. At the end of the hearing, the

trial court stated that Mother "can't dictate by [her] choice the relationship between the

parent and a child." There was testimony that the child was happy in Illinois and was well

cared for. She has a loving family there as well as in Texas. But, the fact remains that

Mother removed the child a great distance from her Father. There was testimony that

there is a strong relationship between Father and child. There was testimony that if

Father was allowed to choose residency, that the child would only be in daycare three

days a week and the possibilities for Mother to have longer visits with the child existed.

Mother makes more money than Father, but Father introduced a budget into evidence

showing that his expenses were less, so he had more unbudgeted money available at the

end of each month. Father and his wife had looked into pre-schools and numerous

activities for the child to engage in.

We conclude that, under the particular facts of this case, that relocation from Texas

to Illinois is a material and substantial change in circumstances. See In re W.C.B., 337

S.W.3d 510, 516 (Tex. App.—Dallas 2011, no pet.). We further conclude that the trial

12
court's decision was reasonable, based on the evidence—a decision that was neither

arbitrary nor unreasonable nor without reference to any guiding rules and principles.

See Downer, 701 S.W.2d at 241. The trial court heard testimony supporting many

factors, identified above, that concerned the child's best interest with respect to residency

restrictions and relocation. Because it is apparent from our review that the trial court did

not act arbitrarily, but rather acted reasonably and with reference to guiding rules and

principles, we conclude that the trial court did not abuse its discretion when it ordered the

modification. See Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In re C.R.O., 96 S.W.3d

at 442, 446 (Tex. App.—Amarillo 2002, pet. denied). We overrule issues two, three, and

four.

C. Right to Re-establish Residency

By issue five, appellant urges that the trial court should have allowed her the

opportunity to reestablish the child's residence within the geographical restriction. She

cites In re D.M.D. as authority for her argument. See No. 05-07-01045-CV, 2009 WL

280465 (Tex. App.—Dallas, Feb. 6, 2009, no pet.) (mem. op.). However, the court in

D.M.D. was not asked to consider the question of whether a trial court is required to afford

a custodial parent the opportunity to establish the primary residence of the child within the

geographical restriction before awarding the non-custodial parent the right to determine

the primary residence. Appellant cites no other authority for her argument and we are

not persuaded by the authority cited. We overrule issue five.

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D. Attorney's Fees

By issue six, Mother argues that the trial court erred in awarding attorney's fees to

Father because there was no finding that the fees were reasonable or necessary or that

payment was "necessary" for the child. The record reflects that Mother stipulated to the

reasonableness and necessity of Father's attorney's fees.

Stipulations of fact are binding on the parties, the trial court, and the reviewing

court. Panther Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist., 234 S.W.3d 809, 811

(Tex. App.—Dallas 2007, pet. denied). It constitutes a binding contract between the

parties. ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 311 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). A stipulation may be used to limit or

exclude the issues to be tried and may obviate the need for proof on a litigable issue. Id.

Here, Father's counsel's case ledger was admitted into evidence, showing fees

and expenses of $15,533.25, the amount awarded by the trial court. Counsel for Mother

stipulated to the reasonableness and necessity of those fees before the exhibit was

admitted. Because of the clarity of the stipulation, we agree that it was binding upon this

Court as it was upon the trial court. We overrule issue six.

III. CONCLUSION

Having overruled all of appellant's issues, we affirm the judgment of the trial court.

ROSE VELA
Justice

Delivered and filed the
5th day of April, 2012.

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