Moreno v. Ernesto

363 S.W.3d 725

Monica MORENO, Appellant,

v.Ernesto and Pilar PEREZ, Appellees.

No. 01–09–00921–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 31, 2011.

Allecia Lindsey Pottinger, Law Office of Allecia L. Pottinger, Houston, TX, for Appellant.

Richard Garza, Pasadena, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices BLAND and HUDDLE.

OPINION

SHERRY RADACK, Chief Justice.

This is an appeal from an order modifying the parent-child relationship. We affirm in part and reverse in part.

BACKGROUND

In 2002, appellant Monica Moreno and Ernesto Perez, Jr. were divorced. Moreno and Perez, Jr. were appointed joint managing conservators of their four children, with Moreno given the right to establish the children's residence. Perez, Jr. was ordered to pay child support and awarded visitation under a standard possession order. Perez, Jr.'s parents, Pilar Perez (Pilar) and Ernesto Perez, Sr. (Perez, Sr.) (collectively, “petitioners”), intervened in the divorce proceeding. The final decree, agreed to by the parties, provided that “all references to ERNESTO PEREZ, JR's periods of visitation mean visitation periods awarded to Intervenors, PILAR PEREZ and ERNESTO PEREZ, SR., as well.”

A. Temporary Orders on Perez, Jr.'s Petition to Modify Parent–Child Relationship

In November 2006, Moreno contacted Perez, Jr. and conveyed that she could not take care of the children. On November 15, 2006, the children moved in with Perez, Jr. and his parents Pilar and Perez, Sr., at their house. In light of the changed circumstances, in August 2007, Perez, Jr. petitioned the court to modify custody and support of the children. In an affidavit attached to his petition, he alleged that Moreno had recently “been [in] and out of the hospital and spent some time in a rehabilitation center.” He further alleged that Moreno had “moved many times since [the] divorce and has lived with different male companions,” and that Moreno and her “male companions would fight a lot and use drugs such as marijuana.” He also complained that the children's clothes were not washed, and that they missed a lot of school. His affidavit also stated that Moreno had moved the children in with Moreno's brother, who he “believe[s] is required to register as a child sex offender.” Finally, Perez, Jr. noted that Moreno had only visited the children five times from January to August of 2007, and stated that Moreno (1) cut those visits short, (2) failed to adequately supervise the children during at least one visit, and (3) during one visit, called Pilar crying hysterically because Moreno thought she had killed her current husband by running over him; Moreno had also assaulted her husband with a metal pole.

The court entered agreed temporary orders in October 2007 giving Perez, Jr. the exclusive right to establish the children's residence, awarded to Moreno visitation under a standard possession order, discontinued Perez, Jr.'s child support obligations, and ordered Moreno to pay the children's health insurance premiums as child support.

The children lived at Pilar's and Perez, Sr.'s house for about nine months. At some point during that nine months, Perez, Jr. remarried and moved to Pearland. In the summer of 2007, the children moved from their grandparents' house to Perez, Jr.'s house in Pearland, where they lived for about a year until Perez, Jr. died on June 19, 2008.

B. Temporary Orders on Pilar's and Perez, Sr.'s Petition to Modify Parent–Child Relationship

A few weeks after their son died, on July 3, 2008, Pilar and Perez, Sr. petitioned the court to modify the 2002 divorce decree by granting them custody, support, and restricting Moreno's access to the children. The supporting affidavit executed by Pilar was substantially the same as the one Perez, Jr. had filed in support of his petition, but added the allegations that Moreno had once driven the children while her driver's license was suspended, and that Moreno had not allowed the children to participate in their father's funeral.

Following an August 26, 2008 hearing, the court entered temporary orders on September 5, 2008. These temporary orders appointed Pilar and Perez, Sr. as temporary sole managing conservators with the right to establish the residence of the children, and Moreno as temporary possessory conservator with the right to visit the children through the Victim's Assistance Center, Inc.'s SAFE Supervised Visitation Program.

The temporary orders also obligated Moreno to pay $605.00 per month in child support and $93.00 per month to cover health insurance. The court made “findings and conclusions” in the order that “the amount of child support rendered by the Court is in accordance with the percentage guidelines” and that the percentage applied to Moreno's net resources is 35%.

C. Trial on the Merits on Pilar's and Perez, Sr.'s Petition to Modify Parent–Child Relationship

On July 13, 2009, a trial was held on Pilar's and Perez's petition to modify the 2002 divorce decree. Moreno's attorney argued for a continuance because Moreno had a pending criminal charge for injury to a child (involving an unrelated child).¹ Moreno's criminal defense attorney advised her against testifying in the underlying proceeding until the criminal case was resolved. The court denied the request for a continuance after petitioners' lawyer represented that he did not intend to introduce any evidence related to the allegations from the criminal proceeding except the actual indictment to demonstrate that the charge was pending.

Early in the trial, the petitioners' lawyer noted that some of their evidence related to events that occurred prior to the 2008 temporary orders hearing, and that it was already heard at the earlier hearing. In response, the court noted that this was the actual trial on the merits of the modification of the 2002 decree, and that petitioners needed to present all their evidence in support of their modification.

PETITIONER'S COUNSEL: And Your Honor, might I have some guidance from the Court? We were here in late August of 2008. A lot of the information—we were here for three hours, a lot of information that occurred prior to that time. We've had a temporary order in August of 2008. Very little has happened from August to now.

COURT: This is the final trial. It's only things prior to the divorce decree that you're modifying, not the temporary orders.

PETITIONER'S COUNSEL: That's what I wanted to make clear, if you want to go from the time—

COURT: It's not temporary orders. Whatever you need—whatever your evidence is, whatever you want to counter, it's from the time the motion that you're modifying is dated.

Later in the trial, at the petitioners' counsel's request, the court took judicial notice of its earlier temporary orders. No one requested that the trial court admit or incorporate any of the evidence from the temporary orders hearing.

1. The Trial Testimony

Pilar and Perez, Sr. were the only witnesses at trial. Pilar testified that she had been at her United States Postal Service job for 24 years, that she works predicable, stable hours, and that she provides health insurance for the children through her employment. She believes circumstances have changed since the 2002 divorce decree, and that it is in the children's best interest for the decree to be modified appointing her the sole managing conservator of the children. She testified about Moreno's turning over the children in November 2006, and the children's time living with either the petitioners or Perez, Jr. since then. Pilar testified that since entry of the temporary orders, Moreno has not inquired about the health of the children, and that petitioners had paid for the children's medical needs. When Pilar applied for social security survivor benefits for the children, her payments were delayed for four months because Moreno had previously applied for the benefits to go to her, even though Moreno only had the children for three weeks out of those four months.

Pilar testified that to her knowledge Moreno was not currently employed, and that Moreno's last employment (that she was aware of) was with an attorney and had ended September 12, 2008. Moreno had not paid any of the child support required by the temporary orders. Pilar opined that the children were performing better in school living with petitioners than they did when they lived with Moreno when they changed schools often and were often absent. She also testified that, when the children were living with Moreno between 2002 and 2006, Moreno did not regularly bathe them, they wore dirty clothes, and changed residences at least five times. Moreno also lived with at least four different men during that same timeframe, and currently lives with a boyfriend. Pilar testified that Moreno has driven with the children in the past while her driver's license was suspended. Moreno has visited the children three times through the SAFE visitation program since the temporary orders were entered.

On cross-examination, Pilar conceded that when Moreno received the children's social security death benefits, Moreno was owed child support arrearages from Perez, Jr. She also agreed that Moreno has called to speak to the children since temporary orders were entered. She testified that the children have asked to see Moreno, but not to live with her. Pilar believes that Moreno has driven recklessly with the children because her license was expired and the children were not required to wear seat belts.

Pilar identified the following reasons that “the children would have a significant impairment of their physical and emotional health” living with Moreno: (1) “She doesn't tell them the truth about a lot of things”; (2) “She had multiple partners”; (3) “She doesn't take good care of them”; and (4) “They missed a lot of school when they were with her.”

Perez, Sr. testified about their house, the children's sleeping arrangements, and his job and stable work schedule. He believes ...