In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00176-CV
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IN THE INTEREST OF A.G.B. AND L.A.B.
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On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03546-CV
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MEMORANDUM OPINION
Deena Burt-Barnes appeals from an order modifying a prior order in a suit
affecting the parent-child relationship. In four issues, Appellant (1) complains of the
exclusion of critical evidence at trial, (2) challenges the factual sufficiency of the
evidence, (3) argues the trial court aided the “exclusion” of the parent-child
relationship, and (4) abused its discretion by awarding sole custody to Appellee, Eric
Allen Barnes. We affirm the trial court’s judgment.
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Background
Deena and Eric divorced in 2011. In 2012, the trial court ordered Deena’s
visitation with the children to be supervised. In 2013, the trial court signed an order
in a suit to modify the parent-child relationship. The 2013 order does not appear in
the clerk’s record, but in the modification hearing, the parties agreed the trial court
ordered unsupervised Saturday-only visitation beginning in April 2013. In
December 2013, Deena filed a suit and supporting affidavit to modify the custody,
visitation, and support order signed earlier that year. See generally Tex. Fam. Code
Ann. § 156.102 (West 2014). Her pleading complained that Eric moved with the
children to Burnet County one day after the previous order was signed, and she asked
that she be appointed sole managing conservator and that Eric’s visitation be
supervised because Eric was attempting to alienate the children from Deena. She
further complained that she had to drive four hours each way to exercise her eight
hours of Saturday visitation. In 2015, Eric filed a counter-petition seeking to limit
Deena’s visitation with the children to a single eight-hour period every quarter of
the year and to require five days’ notice prior to exercising visitation.
In April 2016, the trial court signed an order in which it found a material and
substantial change in the circumstances of the parties since the rendition of the 2013
Order in Suit to Modify the Parent-Child Relationship, confirmed Deena’s periods
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of possession “on the Saturday following the first, third, and fifth Fridays of each
month, from 9:00 a.m. to 5:00 p.m. on that same day, with pickup and drop-offs to
be at the child’s residence[,]” and required Deena to give Eric at least seventy-two
hours’ notice of her intent to exercise a period of possession or that period of
possession would be waived. Deena appealed the modified judgment.
Exclusion of Evidence
Issue one contends the trial court erred “in excluding critical evidence that
was presented at trial[.]” To preserve a claim of error on a ruling that excludes
evidence, a party must make an offer of proof unless the substance was apparent
from the context. See Tex. R. Evid. 103(a)(2). To obtain a reversal of the judgment,
the appellant must show that the trial court made an error of law and that the error
probably caused the rendition of an improper judgment. See Tex. R. App. P.
44.1(a)(1). In her brief, Appellant identifies the following evidence, which she
suggests was erroneously excluded by the trial court: (1) records concerning unpaid
taxes, the foreclosure of their home, failure to pay insurance, and unpaid debts; (2)
video recordings of Appellee’s alienating behavior; (3) alcohol and drug test reports;
and (4) insurance cards.
From the Statement of Facts in her appeal brief, it appears the records
concerning household finances concerned events that occurred before the divorce.
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At one point in the hearing, the trial court sustained Eric’s objection to matters that
occurred before the date of the last order in March 2013. But, Deena proffered no
exhibits and did not make an offer of proof. Furthermore, she provides no authority
for holding that the trial court’s ruling was incorrect. At no point in the modification
hearing did Deena proffer video recordings or test results into evidence. The trial
court instructed Eric to remove the insurance card from his wallet and hand it to his
attorney and instructed the attorney to photocopy the card for her client and give the
original card to Deena. Deena did not request that the insurance card be admitted in
evidence. We conclude that the appellant failed to preserve error concerning the
exclusion of evidence for review on appeal. See Tex. R. Evid. 103(a)(2). Issue one
is overruled.
Managing Conservatorship and Possession
Deena combines issues two, three, and four into a single argument focused on
the factual sufficiency of the evidence supporting the trial court’s decision to retain
Eric as the sole managing conservator of the children. She argues there was no
evidence that she is an unfit mother, that Eric depends upon his parents and Deena’s
child support payments to provide the children with shelter, food, and clothing, and
that Eric is not sufficiently involved in the children’s lives and activities. Also, she
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argues the evidence does not support making Eric the sole managing conservator or
varying from the standard possession order.
The Texas Family Code sets out guidelines for possession of a child by a
parent named as a possessory conservator or as the minimum possession for a joint
managing conservator. Tex. Fam. Code Ann. § 153.251(a) (West 2014). There is a
rebuttable presumption that the standard possession order provides reasonable
minimum possession and is in the best interest of the children. Tex. Fam. Code Ann.
§ 153.252 (West 2014). In this case, however, the appointment of Eric as the sole
managing conservator and the variance from a standard possession order occurred
in a previous modification proceeding that resulted in the trial court’s 2013 order.
That order was not appealed. The issue in the proceeding that is the subject of this
appeal is whether “modification would be in the best interest of the child” and 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 previous
order or “the child is at least 12 years of age and has expressed to the court in
chambers . . . the name of the person who is the child’s preference to have the
exclusive right to designate the primary residence of the child[.]” Tex. Fam. Code
Ann. § 156.101(a)(1)(A), (2) (West 2014). Deena had the burden of proof regarding
whether Eric should be removed as sole managing conservator and whether Deena
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should be appointed as joint managing conservator with a standard possession order.
See Trammell v. Trammell, 485 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.]
2016, no pet.).
We review a trial court’s modification order for abuse of discretion. Gillespie
v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under an abuse of discretion
standard, the factual sufficiency of the evidence is not an independent ground of
error but is merely a factor in assessing whether the trial court abused its discretion.
In re A.E.D., No. 09–13–00555–CV, 2014 WL 4363445, at *3 (Tex. App.—
Beaumont Sept. 4, 2014, pet. denied) (mem. op.). Because trial courts have wide
discretion to determine the children’s best interest in issues of custody and visitation,
“[t]he trial court does not abuse its discretion if its order is supported by some
evidence of a substantive and probative character.” Id. “We review the entire record
to determine whether the trial court’s decision was arbitrary or unreasonable.” Id.
Eric and the children moved from Montgomery County to Burnet County after
the date of the last custody order. They were living in a guest house on Eric’s parents’
property, and Eric was unemployed. The children were twelve and sixteen at the
time of trial. The trial court conferred with them in chambers. The children expressed
their preference to live with their father. Therefore, the trial court had before it
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evidence that the parties’ circumstances had changed and that the children preferred
to reside with their father.
The factors considered in determining the best interest of the child 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 plans for the child
by these individuals, (6) the stability of the home, (7) the acts or omissions of the
parent that may indicate that the existing parent-child relationship is not a proper
one, and (8) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976). Deena argues that the trial court’s order is not in
the best interest of the children because Eric cannot support the children financially;
is not involved in the children’s lives; smokes and drinks alcohol. Eric testified he is
involved in every one of the children’s activities and pays the children’s living
expenses with income from the sale of his house. He admitted that he drinks beer,
but he was not asked whether he smokes. Deena visited the children four times in
2014 and four times in 2015. The children expressed their disappointment that their
mother exercised her visitation rights so infrequently, but they were not interested
in living with her or seeing her more often. Viewing the entire record, we conclude
the modification order is supported by some evidence of a substantive and probative
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character; therefore, the trial court did not abuse its discretion. We overrule issues
two, three, and four, and we affirm the trial court’s judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on October 20, 2017
Opinion Delivered December 14, 2017
Before McKeithen, C.J., Kreger and Johnson, JJ.
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