Obernhoff v. Nelson, 01-17-00816-CV

CourtCourt of Appeals of Texas
Writing for the CourtJulie Countiss Justice
Docket NumberNO. 01-17-00816-CV,01-17-00816-CV
Decision Date29 August 2019


NO. 01-17-00816-CV

Court of Appeals For The First District of Texas

August 29, 2019

On Appeal from the County Court at Law Washington County, Texas
Trial Court Case No.


Appellant, Katie Schmidt Obernhoff ("Katie"), challenges the trial court's August 22, 2017 Order in Suit to Modify Parent-Child Relationship, entered after a bench trial, granting the counter-petition, filed by appellee, Daron Lynn Nelson ("Daron"), to modify an order in a suit affecting the parent-child relationship. In

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five issues, Katie contends that the trial court erred in modifying the existing order in a suit affecting the parent-child relationship, relying on the guardian ad litem's testimony and report, failing to disclose its identity when conferring with the minor child, issuing temporary orders, denying an evidentiary hearing related to Katie's motion for new trial, and denying her emergency motion for an evidentiary hearing on Katie's motion for new trial to present newly discovered evidence.

We affirm.


In 2004, Katie gave birth to her and Daron's minor child, C.N. On October 15, 2012, the trial court signed an Order in Suit to Modify Parent-Child Relationship (the "2012 order"). The 2012 order appointed Katie and Daron as joint managing conservators and named Katie as the joint managing conservator with the exclusive right to designate C.N.'s primary residence. The order also provided that Katie had the sole exclusive control over a custodial account held for C.N. by Katie and Daron. The funds placed into that account were to be used solely for C.N.'s education, and Katie was required to obtain written permission from Daron to withdraw the funds for any other purpose.

In her Petition to Modify the Parent-Child Relationship, filed on December 2, 2015, Katie alleged a material and substantial change of circumstances since the 2012 order and that modification of that order would be in the best interest of C.N.

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In regard to modification, Katie requested that she and Daron be appointed as joint managing conservators, that she be named the conservator with the exclusive right to designate C.N.'s primary residence, and that Daron only be allowed supervised visitation with C.N. because Daron had allegedly been physically abusive toward C.N. Katie requested temporary orders and a temporary restraining order and sought an injunction. In an affidavit attached to her petition, Katie stated that possession of C.N. by Daron would endanger C.N.'s physical health and significantly impair his emotional development. According to Katie, Daron had made verbal threats of abuse directly to C.N., C.N. told Katie that Daron had struck him, which Daron had classified as an accident, and Daron had directed derogatory statements toward C.N. As a result, Katie alleged that C.N. did not want to be in Daron's possession.

On December 16, 2015, Daron filed a Counter-Petition to Modify the Parent-Child Relationship and a Counterclaim for Enforcement of Possession or Access. Daron alleged a material and substantial change of circumstances since the 2012 order and that modification would be in the best interest of C.N. Daron requested that he and Katie be appointed as joint managing conservators, that he be named the conservator with the exclusive right to designate C.N.'s primary residence, and that he no longer be required to pay child support to Katie. Daron requested temporary orders and sought an injunction.

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On April 19, 2016, after a hearing, the trial court entered temporary orders, appointing Katie and Daron as temporary joint managing conservators, naming Daron as the joint managing conservator with the exclusive right to designate C.N.'s primary residence, and ordering Katie to pay child support to Daron.


At trial, Katie testified that she is currently married to Erich Oberhoff ("Erich") and has two children, C.N. and Z.O. At the time of trial, C.N. was twelve years old and Z.O. was two years old. According to Katie, Z.O. was born in July 2015 and had colic, which caused her to cry and fuss constantly. Katie described Z.O. as inconsolable. Z.O. also had jaundice and a broken collarbone at birth, and right after Z.O. was born, Katie "went two weeks straight with no sleep." In fact, there were many instances in 2015 when Katie was sleep deprived. Although Z.O. outgrew her colic at about six months old, she was still a "high maintenance" child, which caused stress. Katie explained that it was difficult for her to manage C.N. and Z.O. at the same time, especially because Erich was away from the home for two weeks at a time for work. Katie believed that she was suffering from postpartum depression in 2015. At the time, she felt anxious, stressed, overwhelmed, and hopeless.

In regard to her mental health history, Katie noted that at times in the past she was treated for depression, although at the time of trial, she stated that she was not

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suffering from depression.1 Katie testified that in 2012 she began seeing a counselor, T'Shana Everitt. In October 2012, Katie went to the emergency room because she was depressed and she had attempted to cut herself on her leg with a butter knife. She spent four or five hours in the emergency room and she did not tell her family, although she asked Daron to watch C.N. Katie explained that during that time, and for approximately two years, she did not get along with her parents because she was "going through a lot." She "had Daron back in [her] life, [she] had . . . migraines, health problems, [she] met Erich, [she] lost jobs[,] and . . . then [she] started having problems with Erich." In 2016, Katie saw another counselor for approximately a month and she saw a psychologist who "gave [her] some sleeping medicine."

In regard to Erich, Katie explained that when Z.O. was born in July 2015, she and Erich were in a "rocky" and unstable relationship, and they were not married. In spring 2016, after the trial court issued its temporary orders in the instant case, Katie ended her relationship with Erich. Katie explained that the difficulty of raising and taking care of Z.O. had put a stress the relationship.

Katie further testified that although Erich has never hit her, during the course of their relationship, she called law enforcement officers "on Erich" six occasions. The first time that she called for emergency assistance, Erich went to jail. In that

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instance, Erich came home angry, started yelling at Katie, and hid her keys and her cellular telephone. When Katie went out to her car to call for emergency assistance, Erich tried to stop her by pulling her out of the car. Katie fell in "sticker burrs," and then ran inside their home, found her cellular telephone, and called for emergency assistance to "come settle [her and Erich] down." C.N. was not present at the time. The second time that Katie called for emergency assistance it was related to a verbal argument between her and Erich, and C.N. was not present. However, the third time that Katie called for emergency assistance, related to a verbal argument between her and Erich, C.N. was present. The last time that she had called for emergency assistance regarding Erich was in November 2015. Katie explained that she and Erich had gotten into an argument and she was scared. In June 2016, Katie requested a temporary restraining order against Erich, and Katie testified that the statements she made in her affidavit attached to her Application for a Temporary Restraining Order and Temporary Injunction were truthful.

Katie additionally testified that her relationship with Erich has changed since 2015. In July 2016, she and Erich reconciled, and they married in July 2017, shortly before trial. They now have a mutually supportive relationship and do not argue. Katie further explained that, after she and Erich reconciled, they began attending couples counseling sessions once a week with their counselor, Everitt, to "repair[] [the] past and to move on for a healthier future." Eventually, Katie and Erich

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transitioned to attending counseling sessions once a month. Through counseling, Katie and Erich have started to relate to each other differently and have learned how to handle their disagreements. Although they still argue, it had "been awhile" since they has an argument where they yelled at each other. According to Katie, she and Erich plan to have several more children.

In regard to Erich's relationship with C.N., Katie testified that Erich has strong affection for C.N. But, when asked whether C.N. had affection for Erich, Katie stated: "It's been rocky because he's been protective of me, but he's a lot better." Katie explained that C.N. was protective of her because he had seen her and Erich argue in the past. However, in Katie's opinion, as her relationship has improved with Erich, Erich's relationship has improved with C.N. because C.N. no longer feels the need to protect her from Erich. Katie wants C.N. to have a good relationship with Erich.

Katie further testified that she and C.N. have a close relationship. Katie disciplines him and helps him with his homework. After C.N. began living primarily with Daron in spring 2016, Katie would have C.N. do his required reading when he was in her possession, and in fall 2016, Katie took him to a math tutor. Katie does not curse at C.N. or in front of him. She also has lunch with him at school on certain days, and C.N. is glad to see Katie during this time. Katie believes that C.N.'s academics and school behavior are important, but she thinks that C.N.'s emotional

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and physical well-being is the most important thing. Further, C.N. has a good relationship with Katie's parents and sister, and Katie's mother has helped C.N. with his homework in the past.

In regard to C.N.'s schooling, in fall 2015, Katie moved C.N. to a public middle school because they had "resource" classes and C.N. was...

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