In re Interest of J.B.J.

Decision Date29 June 2022
Docket Number10-21-00049-CV
Citation649 S.W.3d 828
Parties In the INTEREST OF J.B.J., J.M.J., and J.I.J., Children
CourtTexas Court of Appeals

Laura Beth Krasienko, Krasienko Law Firm PLLC, Waco, for Appellant.

E. Alan Bennett, Sheehy Lovelace & Mayfield PC, Waco, Jason M. Milam, Milam & Fanning PLLC, Waco, for Appellee.

Before Chief Justice Gray, Justice Johnson, and Justice Smith

TOM GRAY, Chief Justice

John appeals from a judgment that granted a modification of his divorce decree. See TEX. FAM. CODE ANN. § 156.101. The original decree designated John as the joint managing conservator with the right to establish the primary residence of the children, J.B.J., J.M.J., and J.I.J. The modification changed the designation and named Karen, John's ex-wife and the mother of the children, to be the joint managing conservator with the right to establish the primary residence of the children. John complains that the trial court abused its discretion by granting the modification because the evidence was legally insufficient for the trial court to have found that he voluntarily relinquished the primary care and possession of the children for at least six months or that the children's present environment may endanger the children's health or significantly impair their emotional development. See TEX. FAM. CODE ANN. § 156.102(b)(1) & (3). Because we find that John has failed to preserve his complaint for appellate review, we affirm the judgment of the trial court.

APPLICABLE LAW

Generally, to prevail on a petition to modify the terms of conservatorship, including a modification of which conservator will have the right to determine the children's primary residence, the party seeking modification must establish that (1) "the circumstances of the child[ren], a conservator, or other party affected by the order have materially and substantially changed" since the date of rendition of the prior order, and (2) modification is in the children's best interest. TEX. FAM. CODE ANN. § 156.101(a)(1).

However, § 156.102 provides if, within one year of the order to be modified, a person files a suit to modify the designation of the person having the exclusive right to designate the primary residence of the child, the petitioner shall execute and attach an affidavit containing at least one of three specified allegations, along with supporting facts. TEX. FAM. CODE ANN. § 156.102(a)(b). The two allegations that were alleged in Karen's affidavit are set forth in § 156.102(b)(1) & (3), which state:

(1) that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development;
... (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

TEX. FAM. CODE ANN. § 156.102(b)(1), (3).

John misapprehends the mechanism put in place by the legislature regarding how a modification of the conservator that has the exclusive authority to designate the primary residence of the children can be modified. Section 156.102 refers only to pleading requirements. If the affidavit filed with a motion to modify filed within one year is insufficient, the trial judge is required to deny the relief sought and refuse to schedule a hearing for modification. Id. § 156.102(c).

The language of §...

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