Spence v. Davis

• Decision Date: 27 January 2023
• Docket Number: 03-22-00179-CV
• Parties: Molly Spence, Appellant v. Matthew Davis, Appellee
• Court: Texas Court of Appeals

Molly Spence, Appellant
v.
Matthew Davis, Appellee

No. 03-22-00179-CV

Court of Appeals of Texas, Third District, Austin

January 27, 2023

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-17-007624, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Smith

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

Molly Spence contends that the trial court abused its discretion in modifying the Agreed Order in Suit to Modify the Parent-Child Relationship. She challenges multiple findings of fact and conclusions of law. We will modify the order in part and affirm it as modified.

BACKGROUND

Spence gave birth in March 2016 in California to a child fathered by Matthew Davis. The parents never married each other. In 2017, they entered and amended a California Stipulated Parentage Agreement. Spence and the child, followed by Davis, moved to Austin. In April 2018, Davis filed a petition to modify the Agreement's custody provisions. In April 2019, the child's guardian ad litem Dr. Kelley Baker recommended that Davis be appointed conservator with the exclusive right to designate the child's primary residence and to make psychological and psychiatric decisions.

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In July 2019, the parties signed a Mediated Settlement Agreement (MSA) that was enforceable immediately as a contract. The MSA formed the basis for the trial court's Agreed Order in Suit to Modify the Parent-Child Relationship, signed October 18, 2019. The order named Spence and Davis joint managing conservators with the child to live in Travis County and neither parent empowered to designate the child's primary residence. It established standard possession for Davis beginning August 2019 expanding to an even split beginning in January 2021 with pickup and dropoff at school or, if school was out, at the South Congress Hotel. The order required that significant others not be present at exchanges of the child at the hotel and prohibited the parents from contacting the other's significant other. The order allowed the parents to designate a competent adult to pick up and return the child. The parents shared medical decision-making with the assistance of a parenting facilitator with the service provider to resolve remaining impasses. The order required the parents to participate in individual therapy. The order required the parents to communicate through Our Family Wizard (OFW) and to post all significant information about the child's health, education, and welfare on the site.

Davis filed a new petition to modify the parent-child relationship on June 19, 2020, alleging that the child's circumstances had materially and substantially changed. In his live petition, he asked that the parties remain joint managing conservators with him having the exclusive right to designate the primary residence of the child in Travis and contiguous counties until Spence moves outside of those geographic restrictions. He also requested to have all of the rights under Family Code section 153.132 after meaningful consultation with Spence and to have the exclusive right to schedule the child's medical and therapeutic appointments.

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APPLICABLE LAW

A trial court can modify the terms of a conservatorship order if (1) the child's or parties' circumstances have materially and substantially changed since the order was rendered and (2) doing so would be in the child's best interest. Tex. Fam. Code § 156.101(a)(1). The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.-Austin 2006, pet. denied).

The movant must show what conditions existed at the time of the entry of the prior order, then show what material and substantial changes occurred. Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.-Austin 1987, no writ). The trial court is not confined to rigid rules or definite guidelines when deciding whether circumstances have materially and substantially changed. Zeifman, 212 S.W.3d at 589. The determination is fact- and case-specific. Id. at 593.

To determine the child's best interest, a court may use the nonexhaustive list of factors discussed in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child, the stability of the home, the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id. at 371-72. In the context of custody modification, other factors include the child's need for stability and the need to prevent constant litigation in child-custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

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We review the modification for a clear abuse of discretion. Zeifman, 212 S.W.3d at 587. A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or without reference to any guiding principle. In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex. App.-Texarkana 2004, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). We consider whether the trial court had sufficient evidence on which to exercise its discretion and, if so, whether it erred in exercising that discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.-Dallas 2011, no pet.). A trial court does not abuse its discretion if some substantive and probative evidence supports its decision. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.).

Sufficiency of the evidence is not an independent ground of error but is a factor in determining whether the trial court abused its discretion. Zeifman, 212 S.W.3d at 587. In assessing legal sufficiency, we consider the evidence in the light most favorable to the court's order and indulge every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); In re S.E.K., 294 S.W.3d 926, 930 (Tex. App.-Dallas 2009, pet. denied). To assess factual sufficiency, we consider all evidence and determine whether the evidence supporting the order is so weak or so against the overwhelming weight of the evidence that the order is clearly wrong and manifestly unjust. See City of Keller, 168 S.W.3d at 822. Factually-sufficient evidence is necessarily legally-sufficient evidence. S.B. v. Texas Dep't of Fam. & Protective Servs., 654 S.W.3d 246, 252 (Tex. App.-Austin 2022, pet. filed).

We defer to the trial court's resolution of factual disputes and related credibility determinations; we may not substitute our judgment for the trial court's judgment in those matters. George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.-Houston [1st Dist.] 2007, no pet.). The factfinder can resolve inconsistencies in the testimony of any witness, draw inferences

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from the evidence presented, and choose between conflicting inferences. Lopez v. Crisanto, 583 S.W.3d 926, 930 (Tex. App.-El Paso 2019, no pet.). An appellate court will not overturn a factfinder's inference unless the evidence supports only the opposite inference. Id. We presume that the factfinder resolved evidentiary conflicts in favor of the order if a reasonable person could do so. See City of Keller, 168 S.W.3d at 821. The trial judge can observe and assess witnesses' demeanor and credibility and can sense influences that may not be apparent from reading the record. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

A trial court's designation of items as findings of fact or conclusions of law is not controlling on appeal, and we consider the substance of the court's ruling even if it is incorrectly labelled. Ray v. Farmers' State Bank, 576 S.W.2d 607, 608 n.1 (Tex. 1979); Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635, 640 (Tex. App.-Austin 2012, no pet.)

DISCUSSION

Spence's sole issue on appeal is "[w]hether the trial court abused its discretion in modifying the parties' MSA."^[1] In support of that issue, she makes several arguments and challenges many findings of fact and conclusions of law. She contends that the trial court abused its discretion by modifying the MSA because the issues and circumstances on which Davis based his request to modify predated or were anticipated in the MSA that supported the 2019 Order. She also argues that Davis failed to show changed circumstances because he did not adduce

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evidence of the baseline circumstances existing at the time of the 2019 Order. She further argues that the evidence was legally and factually insufficient and was not based on personal knowledge and therefore was too speculative, conclusory, and irrelevant to support a modification.

We will assess these arguments as they apply to the trial court's conclusions on the elements required to support modification of an order establishing conservatorship or possession and access, namely: Conclusion 5 that there has been a material and substantial change in circumstances since the parties signed the MSA in July 2019 and Conclusion 6 that modification of the 2019 Order is in the child's best interest. See Tex. Fam. Code § 156.101(a).

I. Credibility

Spence contends that there is legally or factually insufficient evidence to support Finding 10 that "at times, MOLLY SPENCE was not a credible witness for several reasons including, but not limited to" Spence's history of fostering relationships by telling "significant falsehoods about herself;" giving "false information to others, especially romantic partners, about her personal history;" and exaggerating or inventing a British accent. Spence challenges that finding and contends...