In the Interest of C.Q.T.M.

• Decision Date: 19 July 2000
• Docket Number: No. 10-99-193-CV,10-99-193-CV
• Citation: 25 S.W.3d 730
• Parties: (Tex.App.-Waco 2000) IN THE INTEREST OF C.Q.T.M., A MINOR CHILD
• Court: Texas Court of Appeals

Page 730

25 S.W.3d 730 (Tex.App.-Waco 2000)

IN THE INTEREST OF C.Q.T.M., A MINOR CHILD

No. 10-99-193-CV

IN THE TENTH COURT OF APPEALS

July 19, 2000.

Rehearing Overruled Aug. 23, 2000.

From the 52nd District Court Coryell County, Texas Trial Court # 27,414

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Chief Justice Davis Justice Vance and Justice Gray

O P I N I O N

REX D. DAVIS, Chief Justice.

Glynda Marie Floyd filed a motion to modify the conservatorship of her son C.Q.T.M., alleging that she, rather than his father Richard Dean Mitchell, should be his sole managing conservator. A jury failed to find that C.Q.T.M.'s conservatorship should be modified. Floyd claims in five issues that the court abused its discretion by: (1) admitting in evidence a contempt judgment rendered against Floyd's husband for failure to pay child support for his own child; (2) admitting in evidence an affidavit executed by her husband relinquishing his parental rights to the child for whom he owed child support; (3) overruling her objection to a question posed by Mitchell's counsel about her discharge from a felony probation; and (4) refusing to allow cross-examination of Mitchell's wife regarding her prior marriages (two issues).

BACKGROUND

C.Q.T.M. was born to Floyd in September 1992. Floyd sued Mitchell three months later to establish paternity. Apparently the parties reached an agreement concerning Mitchell's paternity and had a jury trial in February-March 1996 on the issue of custody. The jury recommended that Mitchell be appointed sole managing conservator, and the court signed a judgment in accordance with the verdict in August of that year.

After this decree, both Floyd and Mitchell married their present spouses. Floyd filed a motion to modify C.Q.T.M.'s conservatorship in March 1998, seeking the appointment of herself as C.Q.T.M.'s sole managing conservator. The parties tried the matter before a jury. Much of the dispute in this appeal rests on the admission of evidence concerning Floyd's husband Wayne (C.Q.T.M.'s step-father) and the exclusion of evidence concerning Mitchell's wife Rena (C.Q.T.M.'s step-mother). The court admitted in evidence a March 1996 affidavit in which Wayne relinquished his parental rights to a son and a September 1996 judgment holding Wayne in contempt of court for failure to pay child support for that son. The court excluded from evidence testimony that Rena had been married four times prior to her marriage to Mitchell.

FLOYD'S DISCHARGE FROM PROBATION

Floyd argues in her third issue that the court abused its discretion by failing to instruct the jury to disregard cross-examination by Mitchell's counsel about her discharge from a "felony aggravated assault probation." However, Floyd never objected to the question and did not request an instruction to disregard the question or her affirmative response until the next morning, after she had completed her testimony, two other witnesses had testified, and she had rested her case-in-chief. Because Floyd failed to make a timely objection or request, we conclude that she has failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); In re M.D.S., 1 S.W.3d 190, 202 (Tex. App.--Amarillo 1999, no pet.); see also Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g) (applying former appellate rule 52(a)). Accordingly, we overrule her third issue.

STEP-PARENT EVIDENCE

Floyd contends in her first and second issues respectively that the court abused its discretion by admitting in evidence the contempt judgment rendered against Wayne and the affidavit relinquishing his parental rights to his son because the evidence is irrelevant. Floyd argues in the alternative that the court abused its discretion in admitting this evidence because the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. She avers in her fourth and fifth issues respectively that the court abused its discretion by granting Mitchell's motion in limine requesting exclusion from the evidence of any testimony concerning Rena's four prior marriages and by excluding such evidence when offered at trial.

Pertinent Law

To obtain modification of a sole managing conservatorship, a petitioner must demonstrate that: (1) a material change of circumstances has occurred since rendition of the prior custody order; and (2) appointment of the petitioner would be a positive improvement for the child. Tex. Fam. Code Ann. § 156.101(a) (Vernon Supp. 2000). As with all suits regarding conservatorship of a child, "[t]he best interest of the child shall always be the primary consideration of the court" in a proceeding to replace one sole managing conservator with another. See id. § 153.002 (Vernon 1996); In re M.R., 975 S.W.2d 51, 53 (Tex. App.--San Antonio 1998, pet. denied); In re Marriage of Chandler, 914 S.W.2d 252, 253-54 (Tex. App.--Amarillo 1996, no writ).¹

When considering whether a material change of circumstances has occurred, Texas courts have deemed the remarriage of one or both parents to be a pertinent factor. Barron v. Bastow, 601 S.W.2d 213, 214-15 (Tex. Civ. App.--Austin 1980, writ dism'd); T.A.B. v. W.L.B., 598 S.W.2d 936, 939-40 (Tex. Civ. App.--El Paso), writ ref'd n.r.e., 606 S.W.2d 695 (Tex. 1980) (per curiam); Wallace v. Fitch, 533 S.W.2d 164, 167 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ) (citing Leonard v. Leonard, 218 S.W.2d 296, 301 (Tex. Civ. App.--San Antonio 1949, no writ)). Texas courts uniformly recognize that the parental abilities of the parent seeking custody and the stability of her home are factors to be considered in determining what is in the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

Accordingly, evidence regarding the conduct and abilities of a step-parent can be relevant and admissible in a suit seeking modification of conservatorship. Wallace, 533 S.W.2d at 167-68; accord Barron, 601 S.W.2d at 214-15; T.A.B., 598 S.W.2d at 939-40; Colbert v. Stokes, 581 S.W.2d 770, 771-72 (Tex. Civ. App.--Austin 1979, no writ); Evans v. Tarrant County Child Welfare Unit, 550 S.W.2d 144, 145-46 (Tex. Civ. App.--Fort Worth 1977, no writ). Such evidence can be relevant to the issues of whether awarding sole managing conservatorship of the child to the spouse of that step-parent would be a positive improvement for the child or whether such a change of conservatorship would be in the best interest of the child. See Tex. Fam. Code Ann. §§ 153.002, 156.101(a)(2).

Section 156.101(a)(1) requires a material change of circumstances subsequent to the rendition of the custody decree sought to be modified. Tex. Fam. Code Ann. § 156.101(a)(1). This is so because the prior decree "is res judicata of the best interests of the child as to conditions existing at that time." Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.--Houston [1st Dist.] 1988, no writ) (citing Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969)); accord Gibbs v. Greenwood, 651 S.W.2d 377, 379 (Tex. App.--Austin 1983, no writ). Accordingly, evidence regarding changed circumstances is generally relevant only insofar as it reflects a change of circumstances occurring after the date of rendition of the decree sought to be modified. Dunker v. Dunker, 659 S.W.2d 106, 108 (Tex. App.--Houston [14th Dist.] 1983, no writ); Gibbs, 651 S.W.2d at 379; Carver v. Carver, 457 S.W.2d 591, 592 (Tex. Civ. App.--Waco 1970, no writ).

Res judicata bars relitigation between the same parties or those in privity with them of claims finally adjudicated in a prior proceeding. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); Glass v. Prcin, 3 S.W.3d 135, 137 (Tex. App.--Amarillo 1999, pet. denied); McGee v. McGee, 936 S.W.2d 360, 364 (Tex. App.--Waco 1996, writ denied). Although there is no definition of "privity" which can be applied uniformly in every case, privity generally exists for res judicata purposes when: (1) a party to a subsequent proceeding exercised control over the prior proceeding though not a party thereto; (2) the interests of the subsequent party were represented by another in the prior proceeding; or (3) the subsequent party is a successor in interest to a party to the prior proceeding. Amstadt, 919 S.W.2d at 653; Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 800-01 (Tex. 1992).

If a parent becomes involved in a relationship with another after entry of a custody decree and then marries that person, the parent's spouse would not have been a party to the prior custody litigation nor in privity with the parent who was a party to that litigation. Cf. Getty Oil Co., 845 S.W.2d at 801 (res judicata does not bar assertion of claim in subsequent proceeding which could not have been raised in prior proceeding). For this reason, res judicata would not bar the introduction of evidence regarding the conduct and parental abilities of that spouse, even if such evidence concerned events occurring prior to rendition of the previous custody decree.

To be more precise, evidence of a parent's subsequent marriage to another can constitute a relevant, material change of circumstances after rendition of the decree sought to be modified. See Barron, 601 S.W.2d at 214-15; T.A.B., 598 S.W.2d at 939-40; Wallace, 533 S.W.2d at 167; see also Tex. Fam. Code Ann. § 156.101(a)(1). Evidence of that step-parent's conduct and parenting abilities would not be subject to exclusion solely because such evidence concerns events which occurred before rendition of the prior decree.² See Wallace, 533 S.W.2d at 166-68.

Thus, the court in Wallace considered evidence that the step-father had been married four times prior to his marriage to the mother of the child the subject of the suit and reviewed testimony from two of his former wives. See id. One of these former spouses testified that she did not believe...