In re A.B.R.

IN THE INTEREST OF A.B.R., W.C.R., and K.R.R., Children

No. 04-17-00220-CV

Fourth Court of Appeals San Antonio, Texas

August 22, 2018

MEMORANDUM OPINION

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2014-CI-19862

Honorable Stephani A. Walsh, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice

REVERSED AND RENDERED IN PART, REVERSED AND REMANDED IN PART

This appeal and cross-appeal stem from a trial court's modification of an agreed final order in a suit affecting the parent-child relationship. The children subject to this suit are A.B.R., W.C.R., and K.R.R., and their parents are Carlos and Victoria. Among her several issues, Victoria argues there was no material and substantial change of circumstances authorizing the trial court to modify the final order. Among the issues in his cross-appeal, Carlos argues the trial court erred by requiring him to post a $50,000 bond. We conclude both parties' issues have merit, reverse the trial court's order in its entirety, render judgment denying Carlos's petition to modify the final order and Victoria's conditional cross-petition to modify the final order, and remand this case for the trial court to reconsider the award of attorney's fees.

BACKGROUND

In December 2014, Victoria filed for divorce from Carlos. Victoria also sought sole managing conservatorship of the children, alleging that appointing Carlos as a joint managing conservator would not be in the children's best interest. Carlos generally denied Victoria's allegations. Following mediation, the parties filed a joint petition, stating the parties would enter into a written agreement containing provisions for conservatorship, child support, medical support, access, and possession of the children. The parties also filed an agreed motion to sever the divorce action into a separate cause number, and the trial court granted the motion.

The trial court signed an agreed final order that recited, "This order is stipulated to represent a merger of a mediated settlement agreement between the parties." The Mediated Settlement Agreement was executed on March 4, 2015. The agreed final order appointed Carlos and Victoria as joint managing conservators, and addressed various aspects of the parent-child relationship, including child support, health insurance, life insurance, medical notification, periods of possession, and private school tuition. The agreed final order was signed on May 19, 2015, and contained specific provisions regarding Carlos's anticipated relocation to Puerto Rico. The agreed final order also provided Carlos's periods of possession may not "interfere with the children's attendance at school or the children's school related activities and sports the children are participating in." The agreed final order contained no provisions regarding decisions as to the activities and sports in which the children would participate.

Before the agreed final order and the Mediated Settlement Agreement, Carlos and Victoria were still living together, and the children participated in numerous seasonal sports and extracurricular activities. A.B.R. (born in 2006) and W.C.R. (born in 2008) were involved in soccer, basketball, tennis, swimming, early bird reading, archery, a young astronaut program,chess, horseback riding, and cub scouts. A.B.R. was also taking guitar lessons, and W.C.R. was being tutored. K.R.R. (born in 2011) was involved in swimming, ballet, and piano.

After the Mediated Settlement Agreement and agreed final order, Carlos and Victoria finalized their divorce, Carlos moved to Puerto Rico, Carlos's and Victoria's relationship did not improve, and Carlos's routine with the children changed. Furthermore, after the agreed order and Mediated Settlement Agreement, the children remained involved in several of the same activities and sports, stopped participating in some activities and sports, and took up others. A.B.R. and W.C.R.'s basketball season started in November or December 2015, and ended on March 27, 2016. A.B.R. and W.C.R. would play basketball at invitational tournaments for sometimes up to eight hours a day on the weekend. Some of those weekends fell on Carlos's weekends with the children. Victoria would also be present at games, and she and Carlos disagreed about what activities the children should be involved in. Displeased with these circumstances, Carlos sought legal advice in March 2016 about the issues arising after the parties executed the Mediated Settlement Agreement. His hope was to "clean up a lot of problems" in the Mediated Settlement Agreement.

On March 28, 2016, Carlos filed a petition to modify the agreed final order. Carlos alleged "[t]he circumstances of the children, a conservator, or other party affected by the agreed order had materially and substantially changed since the date of the signing of the mediated settlement agreement on which the order to be modified [wa]s based." In his Fifth Amended Petition to Modify, his live pleading, Carlos requested fourteen modifications to the agreed final order. To provide a few examples, Carlos requested modifications regarding the children's exclusive psychological and psychiatric treatment by a particular doctor, the children's passports and travel, a "right of first refusal" to have access to the children if Victoria was unable to exercise her possessory rights for an overnight period, an order that Victoria submit to a psychological evaluation, a requirement that the children not be left alone with Victoria overnight, and limitingVictoria's ability to make decisions that would involve the children in activities that would interfere with Carlos's periods of possession. Carlos also requested an award of his attorney's fees. Victoria generally denied Carlos's allegations and requested an award of her attorney's fees. Victoria also filed a conditional counter-petition to modify the agreed final order, but only if the trial court found there was a material and substantial change of circumstances authorizing the trial court to modify the parties' agreed final order.

The trial court heard the case beginning on October 3, 2016, and ending on October 7, 2016. At the hearing, several witnesses (including Victoria and Carlos) testified, and numerous exhibits were admitted into evidence. The following week, the trial court orally rendered rulings on the parties' requests for relief. On April 6, 2017, after two motion-to-enter hearings, the trial court signed an order modifying the agreed final order. Victoria timely filed a motion to modify, a motion for new trial, and a request for findings of fact and conclusions of law. The trial court issued findings of fact and conclusions of law, and then entered first amended findings of fact and conclusions of law, as well as additional findings of fact at Victoria's request. The trial court then separately entered second amended findings of fact and conclusions of law and signed a final nunc pro tunc modification order (or "the modification order").

The modification order consisted of fifty-two pages altering the parties' agreed final order. The modification order contained a geographical restriction, a designation of an exclusive person to provide mental health services to the children, and orders regarding possession, extracurricular and sports activities, electronic communication, the children's travel and passports, child support, health insurance, life insurance, private school tuition, loving and caring, children's bill of rights, children's uniforms, a co-parenting website, and parent counseling. In the modification order, the trial court specifically denied several of the parties' requests, required Carlos to post a cash bond in the amount of $50,000, and awarded Victoria $150,000 in attorney's fees.

The trial court's second amended findings of fact and conclusions of law contained over one hundred twenty findings of fact and conclusions of law, most of which found that the specific provisions of the modification order were in the children's best interest. In its conclusions of law, the trial court determined, "The circumstances of the children or a conservator have materially and substantially changed since March 4, 2015 when the parties entered into their binding Mediated Settlement Agreement." Both Carlos and Victoria have appealed the modification order. We begin by addressing Victoria's appeal.

VICTORIA'S APPEAL

Victoria argues: (1) there was no material and substantial change in circumstances that authorized the trial court to modify the agreed final order; (2) the trial court erred by turning exclusive decision-making authority regarding the children's mental health over to a psychologist and allowing that psychologist to designate a substitute psychologist; (3) the modifications to the agreed final order are not in the children's best interest; (4) the trial court improperly authorized a trial amendment to Carlos's pleadings; and (5) there is legally and factually insufficient evidence "to support Findings of Fact Nos. 9, 14-19, 21-21 [sic], 38-40, 51-60, 62-63, 67-71, 76-77, 91, 93, 103-106, 113-114, 117-118." We address Victoria's first issue.

A. Material & Substantial Change in Circumstances

1. Standard of Review

We review a modification order for an abuse of discretion. Smith v. Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or without reference to guiding rules or principles. Id. "Because it has no discretion when determining the applicable law, the trial court also abuses its discretion when it clearly fails to analyze and determine the law correctly or applies the law incorrectly to the facts." Id. at 738. "Under an abuse of discretion standard, legal and factual insufficiency arenot...