in the Interest of A.G.B. and L.A.B.

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00176-CV
____________________

IN THE INTEREST OF A.G.B. AND L.A.B.

________________________________________________________________________

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 10-04-03546-CV
________________________________________________________________________

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.

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

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.

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

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

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

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

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.

________________________________
CHARLES KREGER
Justice

Submitted on October 20, 2017
Opinion Delivered December 14, 2017

Before McKeithen, C.J., Kreger and Johnson, JJ.