In re G.J.G.

1

IN THE INTEREST OF G.J.G.

No. 09-21-00396-CV

Court of Appeals of Texas, Ninth District, Beaumont

December 21, 2023

Submitted on August 21, 2023

On Appeal from the County Court at Law No. 3 Montgomery County Texas Trial Cause No. 18-11-14466-CV

Before Horton, Johnson and Wright, JJ.

MEMORANDUM OPINION

HOLLIS HORTON Justice

Less than two years after they divorced, G.J.G.'s mother filed a petition to modify the joint managing conservatorship provisions in a Final Decree of Divorce (the Decree), which controls her rights of possession and access to her son, whom we shall call Guy.^[1] Following a trial to the bench the trial court signed an order denying Mother's petition, and Mother appealed.^[2] Mother raises two issues in her appeal. In Mother's first issue, she argues the trial court erred in finding that the circumstances of the child, a conservator, or other party affected by the provisions that established Guy's conservatorship have not materially and substantially changed since the trial court signed the Decree on January 4, 2019. In Mother's second issue, she argues the trial court erred when the court sustained an objection to a question that her attorney asked Father about his plans for Guy.^[3] We conclude that Mother's first issue lacks merit and that her second issue wasn't properly preserved for our review. For the reasons explained below, we will affirm.

Background

The trial on Mother's petition to modify occurred in September 2021. In the proceedings that led to this appeal Mother wasn't the only one who wanted to have the joint custody arrangement that the 2019 Decree created modified. The record shows that Father responded to Mother's petition to modify by filing a counterpetition to modify the Decree. In their respective petitions, both parties asked that the trial court name them as the person with the right to designate Guy's primary residence. Additionally, Mother asked that the trial court modify several of the custodial provisions in the Decree by awarding her the exclusive right to consent to Guy's medical treatment and make decisions about how he should be educated. Mother also asked that the trial court modify the 2019 Decree to require Father to pay child support. For his part, Father's petition asked that the trial court alter the custodial provisions in the 2019 Decree by giving him the exclusive right to consent to Guy's medical treatment and the exclusive right to decide how Guy should be educated. Father's petition also asked that the trial court modify the Decree by basing the parties' possessory rights on the right in a standard possession order.

Six witnesses testified in the hearing the trial court conducted in September 2021 on Mother's and Father's respective petitions to modify the conservatorship provision in the 2019 Decree: (1) Mother; (2) Father; (3) Sheryl-who taught Guy in kindergarten; (4) Lisa-Guy's teacher at LearningRX, who testified the facility is a "cognitive brain training center" that "works with the underlying reasons for children through adults who struggle with learning comprehending, understanding, the process of information and how that happens in the brain[;]" (5) John- Mother's current husband; and (6) Bob-Guy's grandfather.^[4]

At trial, the evidence Mother elicited from the witnesses focused on Mother's request that the court modify the Decree by giving her the exclusive right to decide how Guy should be educated rather than requiring those decisions to continue to be made jointly with Guy's father. During the trial, Mother argued the trial court should award her the exclusive right to make decisions about Guy's education because she is the parent who is more involved in helping Guy with his homework. According to Mother, she is the parent who follows up and makes sure that Guy gets his homework completed. Mother testified that she thought the Decree needed to be changed "because there is no clear delineation of any type of decision-making regarding [Guy's] education." When her attorney asked her why she thought the current provision requiring the parties to jointly decide how Guy should be educated should be changed, Mother said: "Because I have been an active party in his education."

When Mother explained how she had played an active role in Guy's education, Mother testified that around five months before the trial, she had enrolled Guy in a program called LearningRx. Mother explained that she did so because in her opinion "traditional methods were not working through the year." According to Mother, Father felt "indifferent" about the program. Mother explained that Father thought the fact Guy was progressing more slowly than others could be attributed to the fact that he was one of the younger children in his class. Mother testified that she disagreed with Father. Mother described Father's attitude about her decision to enroll Guy in LearningRX, which she explained were extra classes that Guy took in addition to attending kindergarten, as "indifferent." According to Mother, Father "reported that he does not feel it is necessarily helping [guy] or that. . . [Guy] doesn't need to go or that [Guy's] not enjoying going." Still, Mother acknowledged that when Father has possession of Guy, he takes Guy to his sessions at LearningRx.

Lisa, who owns LearningRx, testified that when Mother brings Guy to his appointments, Guy "seems to be very together. He comes in ready to work." In her opinion, Guy has made progress since enrolling in classes at Learning RX. When she was asked about how Guy acts when Father brings him to class there, Lisa testified that Guy "wants to go play and he wants to talk about everything except what he's there to do." On cross-examination, Lisa agreed that Mother and Father have consistently brought Guy to his appointments at LearningRX, and she said that Guy hasn't had many, if any, absences. Lisa also testified that when Father brings him, Father"is supportive verbally for sure." No one asked Lisa if she knew anything about the terms of Guy's joint conservatorship or whether she thought changing them might affect Guy.

Sheryl, Guy's kindergarten teacher testified that she has "forty-plus years" experience teaching kindergarten. Sheryl said that based on her experience, boys are more prone to progress slower in school, especially in their younger years. According to Sheryl, Guy was one of the youngest students that she had in her class.

When asked about Guy, Sheryl testified that Guy "had some learning difficulties" when she had him as a teacher last year.^[5] Sheryl recalled that Guy had some problems remembering letters, with sounds, reading, and math. According to Sheryl, she talked with Mother and Father several times about Guy's issues. By Sheryl's account, Mother and Father were both receptive and active in Guy's education. Sheryl testified that Father attended most of Guy's school events and conferences. And Sheryl said that Father was just as active as Mother in Guy's education. As Sheryl saw it, Sheryl testified that Mother and Father both wanted what was in Guy's best interest.

Mother's attorney asked Sheryl whether she knew that Mother had enrolled Guy at LearningRX. Sheryl testified that she was aware Mother had enrolled Guy there. According to Sheryl, Guy's reading skills didn't improve after he was enrolled in classes at LearningRX. But Sheryl agreed that she noticed that by the end of the school year, Guy could count to a hundred.

When Mother testified, she said the reason she thought the existing conservatorship order needed to be changed was because "there is no clear delineation of any type of decision-making regarding Guy's education." According to Mother, when Guy was with her, she helped him with his homework on a more consistent basis compared to Father. She testified: "I was consistent with doing them and there was a consistency where they were not done during [Father's] time." Mother also testified that she wanted Guy vaccinated against COVID-19, while Father was against having Guy take the vaccine. Mother also complained that Father failed to enroll Guy in any extracurricular activities, while she had taken the initiative to enroll Guy in a program for summer camp.

Even though Mother criticized Father, Mother conceded that Guy loves Father and enjoys being with him. Yet Mother would not concede that she and Father are equally good parents. But on cross-examination, she agreed that Father is active in Guy's life and provides Guy a safe and stable home. She also conceded that Father attended most of the parent-teacher conferences that occurred at Guy's school. She also agreed that Father offered to have Guy psychologically tested. But according to Mother, Guy's problem is "an educational problem," not "a psychological issue."

Father's attorney brought out the fact that since Mother and Father divorced, Mother has remarried, and she has had arguments with her current spouse. On cross-examination, Mother conceded that after her divorce from Father she remarried, and since remarrying she has called Father twice late at night and asked Father to pick her up from her house after she and her spouse have argued. According to Mother, she called Father because it was "where I felt the safest place to be at that time where I could go and just not have to deal with an argument." Mother also admitted that her spouse has been gone from home for about a month but that now he is "back home to his parents' house or his mom's house in Dallas."

When Father testified, he explained that he planned for Guy to continue to go to school, to continue to take the extra classes at Learning RX, and to continue with his extracurricular activities. During the upcoming year, Father said that he had plans to...