in the Interest of L. M. M. and S. D. M.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00452-CV

In the Interest of L. M. M. and S. D. M.

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT

NO. 01-1272-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This appeal arises from a twelve-year custody battle between L.M.M.'s and S.D.M.'s (1)

parents, Rhonda Moe and John Malmquist. Moe appeals the trial court's order denying her motion

to modify, maintaining both parents as joint managing conservators with Malmquist having the right

to determine the children's primary residence, and putting restrictions and conditions upon Moe's

rights of possession and access. Moe's parents, Harold and Irene Moe, (2) intervened below, seeking

to be appointed as conservators of the children, and now join Moe as appellants to challenge the

attorney's fees awarded against themselves and Moe, jointly and severally, in favor of Malmquist's

attorney and the children's attorney ad litem. We will affirm the June 2004 order, but reverse an

award of appellate attorney's fees that was contained in a subsequent, void order.

PROCEDURAL BACKGROUND

Since the final divorce decree was entered in July 1994, both parents have filed

multiple motions to modify conservatorship and both have been held in contempt on multiple

occasions for violating court orders pertaining to their parental actions. Also, both parents have

consistently disputed their financial responsibility for child support, the children's medical expenses,

and the unpaid fees owed to their personal attorneys, the attorney ad litem, and the children's

therapist. The trial court recognized that both parents--but particularly Moe--have overlooked the

damage this litigation has inflicted on their children and have, in fact, involved L.M.M. and S.D.M

in the cross-fire.

The phase of litigation at issue began with an April 2003 motion that Moe filed to

reduce her child support obligation and collect her attorney's fees. She later filed several amended

motions to additionally request that the trial court hold Malmquist in contempt, award her additional

periods of possession, award her the right to determine S.D.M.'s primary residence, and appoint her

as the children's sole managing conservator. (3) The attorney ad litem intervened seeking to enforce

the prior orders, hold the parents in contempt for their violations, enjoin them from further

violations, and impose additional orders upon them. Malmquist responded, denying Moe's

allegations, seeking attorney's fees, and asking the court to deny Moe's requests. Harold and Irene

Moe, the grandparents, then filed a plea in intervention seeking that they be named sole managing

conservators or joint managing conservators and that they recover their attorney's fees. Malmquist

and the ad litem filed additional motions to collect their attorney's fees.

After a four-day hearing in October 2003 and a three-day review hearing in March

2004, (4) the trial court announced its proposed order, and the parties reconvened in April and May to

further discuss the details of what should be included in that order. The court then signed a final

order on June 28, 2004, which maintained Moe and Malmquist as joint managing conservators with

Malmquist having the right to establish the children's primary residence, but placed additional

restrictions on Moe's rights of possession and access, and conditioned her rights on continued

psychological treatment. The June 2004 order also awarded attorney's fees against Moe and the

grandparents, jointly and severally, in favor of the ad litem (for $15,000) and Malmquist's attorney

(for $20,000, without mention of any fees that might be incurred on appeal) and awarded attorney's

fees against Malmquist in favor of the ad litem (for $5,000).

In July 2004, Moe filed a motion for reconsideration and/or for a new trial, and

Malmquist filed a motion to reform the judgment to include an award of appellate attorney's fees.

At a hearing on July 23, 2004, the trial court denied Moe's requests and stated that it would enter an

award of $5,000 in favor of Malmquist's attorney against Harold and Irene in the event that they filed

an unsuccessful appeal. Although the court requested at that time for Malmquist's attorney to

prepare an order reflecting that award, no such order appears in the record. The award of appellate

fees was not memorialized in writing until October 18, 2004, when the trial court issued a modified

final order, which differed from the June order only by its inclusion of the appellate attorney's fees

award. The parties agree on appeal that the October 2004 order is void because it was issued after

the expiration of the court's plenary power and that the June 2004 order controls. In November

2004, the trial court issued findings of fact and conclusions of law in response to requests by Moe

and the grandparents.

Moe appeals, challenging the trial court's order regarding conservatorship issues and

attorney's fees. Harold and Irene also appeal, confining their challenge to the award of attorney's

fees. Malmquist responds that the trial court committed no abuse of discretion regarding either the

conservatorship issues or the attorney's fees and asks this Court to uphold the June 2004 order in all

respects. Malmquist also urges that, although the October 2004 order is void, the award of appellate

attorney's fees should be upheld as a temporary order pursuant to section 109.001 of the family code.

See Tex. Fam. Code Ann. § 109.001 (West 2002). The ad litem asserts that the award of ad litem

fees against Moe and the grandparents, jointly and severally, should be upheld.

CONSERVATORSHIP ISSUES

Although the June 2004 order maintained Moe and Malmquist as joint managing

conservators with Malmquist having the exclusive right to determine the children's primary

residence, as the case had been since August 2002, it modified Moe's possession and access rights

by adding restrictions and conditions to the terms. Whereas the August 2002 order employed the

family code's "standard possession order," as set forth in sections 153.311 through 153.317, the June

2004 order stated that "the provisions of the Standard Possession Order are not appropriate in this

case and . . . would not be in the children's best interest." See Tex. Fam. Code Ann. §§ 153.311 -.317

(West 2002 & Supp. 2004-05). Instead, the court crafted an order that conditioned Moe's rights of

possession and access on her attending therapy with Dr. Thomas Lowry. The court ordered that,

thirty days after Moe had "begun a regular course of psychological treatment with Dr. Thomas Lowry

and [] provided proof thereof [to all parties]," she could engage in supervised visitation at Kids

Exchange from 9:00 a.m. to 12:00 p.m. on the second and fourth Saturdays of each month and, once

notice of her treatment with Dr. Lowry had been provided, she could have telephone contact with

the children. The court also provided for the possibility of increased possession by Moe if certain

conditions were met. It ordered that, if Moe continued her treatment with Dr. Lowry, then as of

August 1, 2004, she could have the children on the second and fourth Saturdays from 9:00 a.m. to

10:00 p.m., and as of September 1, 2004, from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. These

periods of possession were to be supervised by Harold Moe until September 15, 2004, and thereafter

could be unsupervised. Then, on December 1, 2004, assuming Moe continued treatment with Dr.

Lowry, the terms of the family code's standard possession order would supersede the June 2004

order, providing Moe with additional conservatorship rights. (5) All possibilities of Moe's increased

possession were, however, subject to her compliance with the order that she continue treatment with

Dr. Lowry. And the court ordered that Dr. Lowry should consult the children's therapist to

"determine the impact of the increased possession," and "[i]f Dr. Thomas Lowry and the children's

counselor agree that any specific period of possession is not in the best interest of the child or

children, and have stated so in writing, that period of possession is ordered [to] not occur."

Moe challenges the conservatorship order on two basic grounds: she urges that the

trial court abused its discretion in awarding certain privileges to Malmquist and in imposing certain

limitations on her. More specifically, Moe asserts that the trial court abused its discretion and

violated the family code by (1) maintaining Malmquist as joint managing conservator with the right

to determine the children's primary residence because Malmquist has a history of abusing the

children, making it impermissible for him to be the joint managing conservator under section

153.004(b) of the family code, and by (2) granting Moe less than the standard possession order, as

defined by section 153.311 of the family code; by not awarding Moe specific, enforceable periods

of possession and access; and by making Moe's visitation rights dependent on the approval of her

and the children's therapists, which poses the risk that her parental rights could be unconstitutionally

denied by de facto termination and which constitutes an impermissible delegation of the trial court's

authority to determine conservatorship rights. See id . § 153.004(b) (West Supp. 2004-05), § 153.311

(West 2002).

Standard of Review

In determining issues of conservatorship and possession and access, the primary

consideration is always the best interest of the child. See id . § 153.002 (West 2002); Lenz v. Lenz ,

79 S.W.3d 10, 14 (Tex. 2002). Trial courts have broad discretion to determine what is in a child's

best interest. Coleman v. Coleman , 109 S.W.3d 108, 110 (Tex. App.--Austin 2003, no pet.). A trial

court's order modifying a joint managing conservatorship will not be disturbed on appeal unless a

clear abuse of discretion is established by the complaining party. Echols v. Olivarez , 85 S.W.3d 475,

477 (Tex. App.--Austin 2002, no pet.). This is because conservatorship determinations are

"intensely fact driven," Lenz , 79 S.W.3d at 19 , and the trial court is in the best position to observe

the witnesses and "can 'feel' the forces, powers, and influences that cannot be discerned by merely

reading the record." Echols , 85 S.W.3d at 477 . To demonstrate an abuse of discretion, therefore,

the appellant must show that the trial court acted in an arbitrary or unreasonable manner, or without

reference to guiding principles of law. Coleman , 109 S.W.3d at 110 . As long as some evidence of

a substantive and probative character exists to support the order, we will not substitute our judgment

for that of the trial court. Echols , 85 S.W.3d at 477 .

Evidence Before the Trial Court

Over the course of several hearings in October 2003 and March 2004, the trial court

heard testimony from over two dozen witnesses, including many mental health and educational

professionals, and conducted in camera interviews with L.M.M. and S.D.M. concerning Moe's and

Malmquist's behaviors and the family's general situation. The overall theme that developed through

this wealth of evidence was as follows: Moe and Malmquist have had a highly contentious

relationship since 1994, and the children have suffered, academically and emotionally, as a result.

As stated by the children's therapist, the family has been in "perpetual crisis mode" for several years,

and as described by Moe's sister, "[Moe and Malmquist] don't speak to each other, but they fight

each other through the kids." Although various courts have repeatedly ordered the parents to not

disparage the other in front of the children, to not involve the children in the custody and child

support disputes, and to maintain a consistent regimen of counseling for both themselves and the

children, both parents have failed to comply with these orders and have been held in contempt for

their failures. Several witnesses described Moe as having psychological disorders, exhibiting intense

and uncontrollable anger, obsessing over things she believes Malmquist has done wrong, and

consistently using the children as weapons against Malmquist. Despite this, evidence was presented

that S.D.M. is protective of his mother and feels bonded to her, and that Moe loves her children.

Regarding Malmquist, witnesses repeatedly testified that he has an authoritarian attitude, uses

physical discipline, relies on calling the sheriff's department to resolve his disagreements with the

children, and is unable or unwilling to communicate with the children. On the other hand, several

witnesses described Malmquist as being very involved at the children's school, being attentive to and

concerned about their needs and successes, using appropriate methods of discipline, and doing the

best he can in the difficult situations that Moe creates between him and the children.

In addition to general testimony about the parents' characteristics and the family's

situation, the trial court also heard testimony about several specific episodes. This evidence is

significant because the trial court made several comments on the record that these episodes

influenced its determinations about what conservatorship arrangement was in the best interest of the

children.

Michelle Heckroth, a school counselor, testified about an incident that occurred

between Moe and L.M.M. on May 19, 2003. Heckroth testified that Moe was "loud and upset" and

"caused a scene" in front of the middle school, apparently in response to L.M.M. having "flipped her

the bird." Moe screamed at L.M.M. that she was "white trash" and, despite Heckroth's efforts to

calm Moe down, her level of intensity did not subside. Another school counselor, Andrew Karbo,

who also witnessed the scene, heard Moe call L.M.M. a "bitch" and saw that Moe was "out of

control." Heckroth testified that Moe blamed Malmquist for the occurrence and, when Heckroth

attempted to counsel her about this incident, Moe only wanted to talk about Malmquist's

shortcomings and continued to belittle him in front of the children. At the end of the encounter, Moe

said to Heckroth, "it's not over. She'll pay for this." Heckroth testified that Moe and L.M.M.'s

relationship consisted of "a lot of hate, a lot of anger" and that, in twenty-one years of education, she

had "never seen a mother degrade her child like that."

Several witnesses testified about an episode in September 2003, when Moe equipped

S.D.M. with a tape recorder and instructed him to take it to Malmquist's house, conceal it in a

backpack, provoke a fight with Malmquist, and record Malmquist's reaction. Moe's instructions to

S.D.M., which she gave when they were practicing using the device, were caught on tape. She

admitted that it was her voice on the tape telling S.D.M. that, "when you get to court . . . you need

to tell . . . all the stuff we do" and "[y]ou need to tell what you hate about living with [Malmquist].

. . . [H]e just sits around and f--ing drinks. . . . We'll kick his ass in court if you just listen to me

and just do what I say." She acknowledged that this was a "direct violation of the August 2002

order," but claimed she only did it to have evidence for the sheriff's department and that she "didn't

think about . . . it endangering [S.D.M.]." The trial court commented that he believed Moe's actions

with the tape recorder were "evil, and I think my opinion's important on that issue."

Evidence was also presented to the trial court that Moe instructed the children to write

letters about Malmquist's shortcomings and about their alleged preference to live with Moe. A

counselor with Mothers Against Drunk Driving testified that, when Moe contacted her with concerns

about Malmquist drinking and driving, she advised Moe to have the children write letters expressing

their feelings, but did not intend for Moe to "coach" or "prompt" them about what to write. Moe

admitted that she instructed the children to write the letters and that she knew it was in violation of

the August 2002 order.

Regarding Malmquist's behavior, the trial court heard testimony about various

incidents where Malmquist called the sheriff's department to resolve disputes with his children. The

two most prominent of these incidents involved S.D.M. In the first, Malmquist noticed that a child

support check, written to him from Moe's employer, was missing from his desk. S.D.M. denied

having taken it. Two months later, Malmquist took S.D.M. to the police station about the missing

check, and S.D.M. admitted to having taken it. Malmquist claimed he wanted to teach S.D.M. that,

"if he did this later in life, [the consequences] would be a lot worse." The officer who handled the

missing check incident testified that it is not unusual for parents to bring their children in to be talked

to about bad behaviors and that, on average, he talks to children "two or three times a month" about

such matters. The children's therapist, however, testified that the use of such a disciplinary tactic

was intimidating to S.D.M., made him fearful, and decreased his respect for authority figures.

The second incident involving the sheriff's department occurred in September 2003,

in connection with Moe's equipping S.D.M. with the hidden tape recorder. By all accounts, (6) one

morning before school, S.D.M. hid the tape recorder in his backpack, and Malmquist told him to take

out the trash. S.D.M. refused, and Malmquist attempted to hurry up their morning routine by loading

S.D.M.'s backpack into the truck while again telling S.D.M. to take out the trash. When S.D.M.

became very possessive of his bag, Malmquist looked inside and found the tape recorder. Malmquist

took it and the bag, gave S.D.M. his lunch and books, told S.D.M. to wait outside for the bus, and

locked the door. S.D.M. yelled and banged on the door, but Malmquist refused to let him back in.

S.D.M. then threw something at the door and broke the window. Malmquist told him to stay put and

called the sheriff's department. The officers arrived, handcuffed S.D.M., put him in the squad car,

and took him to the downtown station. Malmquist followed. After leaving the station, Malmquist

took S.D.M. for an emergency session with the children's therapist, and then took him to school.

School personnel testified that S.D.M. was upset and scared to go back to Malmquist's. Malmquist

testified that, because S.D.M. was out of control, he believed it was appropriate to get the sheriff's

office involved.

Finally, the issue of Malmquist's alleged drinking-and-driving was also the subject

of testimony, in response to Moe's repeated accusations that Malmquist drives drunk with the

children. Malmquist acknowledged that he was pulled over on Halloween night, 2001, for driving

48 mph in a 45 mph zone. According to Malmquist, he was detained because another man of the

same name had an outstanding warrant. Because the police intended to take him to the station to

clear it up, Malmquist's sister came to retrieve the children. Malmquist denied that the reason for

his sister coming was because he and his girlfriend were too inebriated to drive. No DWI charges

were filed. Although Malmquist admits to often having a mixed drink in the evenings when the

children are present, he claims that he does not drink to the point of intoxication and that he never

drives intoxicated. Multiple witnesses confirmed that they have never known Malmquist to drink

and drive, that it would be inconsistent with his character to do so, and that he drinks responsibly in

social settings.

The trial court also heard testimony from key witnesses about their recommendations

for a custody arrangement. (7) In October 2003, the children's therapist, Tammy Wanamaker, testified

that it was not in the children's best interest to continue the joint conservatorship ordered in August

2002 and that, thus far, they had not been able to achieve a healthy situation when both parents were

involved. But, she testified, both children have expressed a desire to have a relationship with both

parents, and her general philosophy is to try and keep children "in the home setting and try to

promote the relationship with both parents." Wanamaker felt that "intensive" therapy work with

both Moe and Malmquist was necessary. Ultimately, Wanamaker testified that she "would like to

see the children continue to have contact with their parents. I think that supervised visitation may

be helpful for awhile, but I would like to, eventually, see them be able to have nonsupervised time

with both parents."

Malmquist testified that "I'm not a perfect parent, but I try the best I can, and I

haven't made a hundred percent of the right choices, no one does . . . but I'm not here to condemn

myself. I think I've done a great job raising these kids. . . . I got them tutors. . . . [When L.M.M.

hid her progress report], I went and got it. . . . [I] take them to school early in the mornings for

[S.D.M.'s] football practice and after I drop them off, go to work. And, normally, I don't get home,

mostly between 5:30 and 6:00, and in the meantime, they're with [my girlfriend] doing their studies

or playing or fishing or football practice. . . . I don't want to eliminate [Moe]. I believe there needs

to be supervised visitation of some sort, and that happened before, and it worked out well."

Malmquist's sister testified that he should have custody.

Moe acknowledged that she had contributed to the children's emotional and academic

problems, but testified that S.D.M. wanted to live with her. She stated that, if she could not have

custody of the children, her preference would be that they live with her parents. Two of Moe's

sisters, Moe's adult daughter from a previous marriage, and three of Harold and Irene's friends

testified that they thought conservatorship should be awarded to the grandparents. (8)

At the March review hearing, several witnesses testified that Malmquist had made

improvements. Dr. Elizabeth Holtzman, Malmquist's psychologist, testified that Malmquist was

committed to the therapeutic process, understood the need to change his authoritarian style, and

demonstrated to her that he could provide a stable environment for the children. Scott Matthew, an

assistant director for Williamson County Juvenile Services, testified that S.D.M. needed more

discipline than Harold and Irene were providing and that, given his experience, it is better to not

place children with the grandparents when there is a viable parental option. Nancy Graff, one of

S.D.M.'s teachers, testified that Malmquist had been supportive of her efforts to improve S.D.M.'s

academic performance. Malmquist testified that he had been attending counseling and parenting

classes and reading parenting books; he felt these things were helping him to be a better father.

Wanamaker testified that, since October, Malmquist had improved his ability to communicate with

the children and had not physically disciplined S.D.M., although their relationship was still "rocky."

Wanamaker could not say whether it would be better to leave S.D.M. with Harold and Irene or move

him to Malmquist's; she did not feel it would benefit L.M.M. to be moved from her grandparents';

and she felt the children should not be separated.

At the hearing, Moe declined to offer any direct testimony. And other witnesses had

little to say about Moe because her involvement with the children since October had been minimal,

given the time she spent in jail serving her contempt sentence and that, once released, she failed to

begin counseling with Dr. Lowry in order to see the children. Moe testified on cross-examination

that she had attended one session with Dr. Lowry, but she had not scheduled another. (9) Irene Moe

and Moe's sister testified that they did not believe Moe posed a danger to the children, that her

visitation did not need to be supervised, and that the court's orders were primarily for the purpose

of punishing Moe rather than protecting the children.

Evidence was also presented at the March hearing that, during the five months the

children were residing at their grandparents' house, L.M.M.'s behavior and academic performance

improved, although she continued to struggle with grades and made poor choices for friends. On

the other hand, S.D.M.'s attitude and grades declined drastically. Although the grandparents claimed

that he behaved well at home, his teachers reported that he had anger management problems, was

failing, was in frequent violation of the dress code, and that he told them he could get away with

anything because his grandparents would not discipline him.

Analysis

A joint managing conservatorship may be modified only upon establishing that (1)

there has been a material and substantial change of circumstances and (2) the modification would

be in the best interest of the child. See Tex. Fam. Code Ann. § 156.101 (West 2002 & Supp. 2004-05). Here, Moe does not dispute that material and substantial changes to the family's circumstances

had occurred since the August 2002 order, but she argues that the trial court's June 2004 order did

not modify the conservatorship arrangement in a manner that was in the best interests of L.M.M. and

S.D.M. She sought to modify the August order to have Malmquist removed as a joint managing

conservator and herself appointed as sole managing conservator. Malmquist responds that, when

considering all of the evidence before it, the trial court did not abuse its discretion by denying Moe's

motion to modify and maintaining the parents as joint managing conservators with Malmquist having

the right to establish primary residence, while placing additional restrictions on Moe's possession

and access rights.

Malmquist's rights of possession and access

Moe bases her argument against Malmquist's conservatorship on the presumptions

established in Chapter 153 of the family code. She argues that, while section 153.131 sets forth a

presumption in favor of both parents being named as joint conservators, that was rebutted in this case

by evidence that Malmquist abuses the children. See id . § 153.004, .131. Moe's arguments are,

however, without merit in this modification proceeding because the Texas Supreme Court has

unequivocally stated that the presumptions of Chapter 153 do not apply to Chapter 156 modification

actions. In re V.L.K. , 24 S.W.3d 338 , 343 (Tex. 2002) (presumptions in Chapter 153 only govern

original custody determinations). Accordingly, in regards to Moe's first issue, the only question

presented for our review is whether the trial court abused its discretion in denying Moe's motion to

modify.

Because Moe was the party asserting that Malmquist should not be maintained as

joint conservator with the right to establish the children's primary residence and that the arrangement

should be modified, Moe carried the burden of proof to establish by a preponderance of evidence that

it would be injurious to the children to maintain Malmquist and that her appointment would be a

positive improvement. Eason v. Eason , 860 S.W.2d 187, 190 (Tex. App.--Houston [14th Dist.]

1993, no writ); Ogrydziak v. Ogrydziak , 614 S.W.2d 474, 477 (Tex. Civ. App.--El Paso 1981, no

writ). She failed to satisfy this burden.

Although several witnesses testified that Malmquist physically disciplined the

children, such as slapping L.M.M. across the face or wrestling S.D.M. to the ground, none

characterized this behavior as "abuse." The children's therapist testified that she did not believe

Malmquist was physically abusing the children but she did worry that the exchanges between

Malmquist and his son would become "[m]ore physical, maybe more intense," as S.D.M. got larger

and older. The therapist also acknowledged that Moe had reported Malmquist to Child Protective

Services on multiple occasions, and that each case was resolved in Malmquist's favor. Further,

Moe's allegations that Malmquist abused the children by drinking and driving were not corroborated

by the testimony, and multiple witnesses testified that they had observed Malmquist with the

children and believed they had a good relationship.

When the trial court announced its order in October 2003, he admonished Malmquist

for his method of handling disputes by resorting to either physical discipline or the sheriff's

department. He then said to Moe that

[t]he mental, cruel and harmful abuse that you have inflicted over these children is

much more severe and much more life damaging than a slap in the face. A kid will

get over a slap in the face. I don't know that these kids will get over the garbage you

put them through, from [having] them sign the [court] documents and the letters . . .,

from giving your child a tape recorder. . . . [and] calling [L.M.M.] white trash and

a bitch in front of her friends and her schoolmates and her teachers is disgusting.

At the March 2004 review hearing, the court explained that he could "understand the conflict

between [Malmquist's] authoritarian, discipline personality and the [grandparents' soft approach],

. . . [but] that's not working for [S.D.M.]" because S.D.M. needs some discipline, and

"[Malmquist's] gone to [Dr.] Holtzman, and he's done what I've told him to do."

The record demonstrates sufficient evidence to support the trial court's determinations

that it was in the best interest of the children to maintain Malmquist as the joint conservator with the

right to establish the children's primary residence and deny Moe's motion to modify. Moe failed to

establish by a preponderance of the evidence that it would be injurious to the children to maintain

Malmquist in this position or that it would be an improvement to appoint Moe as the children's sole

managing conservator. See Eason , 860 S.W.2d at 190 . She also failed to show on appeal that the

trial court acted in an arbitrary or unreasonable manner, or without reference to guiding principals

of law. See Coleman , 109 S.W.3d at 110 . The trial court, therefore, did not abuse its discretion.

See Echols , 85 S.W.3d at 477 . Moe's first issue is overruled.

Moe's rights of possession and access

In her second, third, and fourth issues, Moe challenges the trial court's modification

of her joint conservatorship rights to possession of and access to the children. Moe asserts that it was

error for the trial court to award her less than the standard possession order; to not grant her specific,

enforceable periods of possession and access; and to condition her rights upon the combined

approval of Dr. Lowry and the children's therapist.

Trial courts have discretion to establish the terms and conditions of conservatorship.

Green v. Green , 850 S.W.2d 809, 812 (Tex. App.--El Paso 1993, no writ); see Tex. Fam. Code Ann.

§ 153.193 (West 2002). This includes the authority to determine the frequency and duration of

visits, as well as the limitations and safeguards to be placed on such visits. Hill v. Hill , 404 S.W.2d

641, 642 (Tex. Civ. App.--Houston [1st Dist.] 1966, no writ). Trial courts are not obligated to order

standard possession; if a court determines that the standard possession order is not in the child's best

interest, then the court can either deny possession and access altogether or "fashion an order that

restricts possession or access so as to eliminate any danger to the physical or emotional welfare of

the child." In re Walters , 39 S.W.3d 280, 286 (Tex. App.--Texarkana 2001, no pet.); see also In

re R.D.Y. , 51 S.W.3d 314, 323 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). Trial courts,

however, cannot deny a conservator's rights of possession and access absent a finding that the child's

physical and emotional welfare would be endangered by the possession and access, and any

limitations placed on such rights cannot exceed that required to protect the child's best interest.

Roosth v. Roosth , 889 S.W.3d 445 , 451-52 (Tex. App.--Houston [14th Dist.] 1994, writ denied).

If a trial court determines that it is in the best interest of the child to place restrictions

or conditions on a conservator's rights of possession and access, then it is the court's responsibility

to specifically define those terms in its decree. In re A.P.S., 54 S.W.3d 493, 499 (Tex.

App.--Texarkana 2001, no pet.); Hill , 404 S.W.2d at 643 . The judgment must state in clear and

unambiguous terms what is required for the conservator to comply, and the terms must be specific

enough to allow the conservator to enforce the judgment by contempt. In re A.P.S., 54 S.W.3d at

498 ; Roosth , 889 S.W.2d at 452; see also In re Walters , 39 S.W.3d at 288 .

As in her first issue, Moe relies on a Chapter 153 presumption to support her second

issue, claiming that she is entitled to the standard possession order. See Tex. Fam. Code Ann.

§ 153.137 (West Supp. 2004-05) (standard possession order constitutes presumptive minimum

amount of possession for parent named as joint managing conservator who is not awarded right to

establish children's primary residence). But the supreme court has held that the presumptions in

Chapter 153 are only applicable in original custody cases, not in modification proceedings such as

this one, which are governed by Chapter 156. In re V.L.K. , 24 S.W.3d at 343.

The trial court was afforded broad discretion in establishing the terms of

conservatorship and it was not obligated to order standard possession. In re Walters , 39 S.W.3d at

286 . Moreover, the court explained on the record why the standard possession order was not initially

appropriate in this case (10) and it structured the order so that, within six months from the date of the

order, Moe would be entitled to standard possession, assuming she had established and continued

treatment with Dr. Lowry. Thus, Moe's claim that the trial court abused its discretion by awarding

her less than the standard possession order is without merit, and her second issue is overruled.

Moe's only argument with regard to her third issue--that the trial court erred by not

giving her specific, enforceable periods of possession--is that "[i]t has been repeatedly held that

denials of specific periods of visitation should only be ordered in the most extreme of

circumstances." See Roosth, 889 S.W.2d at 451. While we agree with this proposition, it does not

support Moe's claim because, in conditioning Moe's rights on her continued therapy, she was not

denied specific, enforceable periods of possession. To the contrary, the court's order sets forth very

specific terms of her possession and access rights.

The June 2004 order stated that Moe had to (1) begin treatment with Dr. Lowry, (2)

notify all the parties of such compliance, and (3) continue that treatment for thirty days. At that

point, she was entitled to supervised visitation at Kids Exchange on specified dates and to telephone

contact with the children. Thereafter, beginning in August 2004, as long as she continued treatment

with Dr. Lowry, Moe was entitled to increased periods of possession and access--with very specific

times, dates, and locations provided for--culminating in a December 2004 return to standard

possession. Accordingly, the terms of what Moe was required to do in order to obtain and enhance

her rights of possession and access were unambiguous, specific, and enforceable. Moreover, the

family code expressly grants trial courts authority to order that conservators "participate in

counseling with a mental health professional." Tex. Fam. Code Ann. § 153.010 (a) (West 2002).

The trial court, therefore, did not abuse its discretion by conditioning Moe's rights on her continued

therapy with Dr. Lowry. Her third issue is overruled.

Finally, Moe challenges the conservatorship arrangement on the grounds that it

permitted Dr. Lowry and the children's therapist to order that a particular period of possession not

occur if the therapists mutually agreed that it would not be in the children's best interest and stated

so in writing. She asserts that this order poses the threat that the therapists could cause a de facto

termination of her parental rights by agreeing that it would be in the children's best interest for Moe

to be denied all periods of possession and access; she urges that giving them the ability to deny her

all possession of and access to her children, without any court intervention, violates her

constitutional rights as a parent, see In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003), and constitutes

an impermissible delegation of the trial court's authority to make judicial determinations.

We first address Moe's claim that the order empowered the therapists to prevent her

from "ever again see[ing] her own minor children." In raising this issue, Moe overlooks the

significant distinction between the terms "possession" and "access." Although the terms are

sometimes used interchangeably, they represent two different concepts in the family code. In re

Walters , 39 S.W.3d at 284 . The right of access permits a conservator to approach, communicate,

and visit with the child, whereas the right of possession allows the conservator to exercise control

over the child to the exclusion of all others during a specified period. Id . Here, the order empowered

the therapists to deny Moe only a period of possession, not access. (11) Moe holds the key to that

ability by attending her therapy sessions with Dr. Lowry: As long as Moe continues her treatment

with Dr. Lowry, then she is, at a minimum, permitted access to or visitation with her children.

In light of the evidence that Moe had caused mental and emotional damage to her

children over the last decade, it was reasonable for the trial court to determine that limitations needed

to be placed on her rights of possession. Furthermore, the limitation it imposed sufficiently

safeguarded against a de facto termination of Moe's rights (1) by requiring that the therapists agree

to deny a period of possession and that they state their agreement in writing, (2) by limiting their

right to deny possession to one particular period at a time, and (3) by permitting them to deny Moe

possession, not access. Because the trial court placed restrictions only on Moe's rights of possession,

rather than denying her all rights of possession and access, her constitutional rights are not

implicated by the June 2004 order.

The question remains, however, whether it was a proper exercise of the court's

discretion to delegate authority over Moe's rights of possession to the therapists. Although we are

aware of no other court that has addressed the issue of whether a conservator's right to possess a

child may be contingent on a mental therapist's approval, other courts have addressed whether it is

appropriate to leave that determination within the discretion of another conservator. (12)

In Hill , the First Court of Appeals held that the trial court abused its discretion by

making the father's right to visit his children contingent upon securing the written permission of their

mother, the managing conservator. 404 S.W.2d at 643 ; see also Wright v. Wentzel , 749 S.W.2d 228,

234 (Tex. App.--Houston [1st Dist.] 1988, no writ) (trial court erred by making mother's visitation

rights contingent on father's consent). In Roosth , the Fourteenth Court of Appeals similarly reversed

an order that gave the mother "complete discretion to determine when, where, and if [the father] may

have possession of or access to the children," because this grant of "absolute discretion" to the

mother denied the father an ability to enforce the judgment by contempt. 889 S.W.2d at 452. The

Texarkana Court of Appeals also reversed an order that conditioned the mother's possession rights

on the father's agreement because it was "not sufficiently specific." In re Walters , 39 S.W.3d at 288 ;

see also In re A.P.S. , 54 S.W.3d at 498 (trial court abused discretion in ordering that mother was

entitled to possession "at reasonable times and places as determined by [father]" because it gave

father complete discretion over mother's rights and denied mother ability to enforce order by

contempt). (13)

These cases, however, are distinguishable from the instant one in two, significant

respects. First, the conflict that results from allowing one conservator to have absolute discretion

over the other conservator's rights is readily apparent because it gives an adverse party the right to

completely deny possession and/or access to the other. Here, that is not the case because the

decision-makers, the therapists, are presumably neutral third parties.

Second, the orders in the above-mentioned cases did not sufficiently specify the terms

upon which the decision-maker could deny the conservator's possession or visitation rights. Instead,

the orders simply stated that possession could not occur unless the conservator obtained the other's

"written permission," Hill , 404 S.W.2d at 643 , "consent," Wright , 749 S.W.2d at 234 , or "mutual

agreement," In re Walters , 39 S.W.3d at 288 . Thus, in these cases, absolute, unconditional discretion

was granted over the conservator's rights of possession and access. Here, on the other hand, the

therapists were not permitted to deny Moe a single period of possession without first reaching a

mutual, written agreement that it was in the children's best interest to do so. This is in accord with

what the family code requires a trial court to find prior to denying conservatorship rights. See Tex.

Fam. Code Ann. § 153.002 . While it may not be appropriate in all cases for the trial court to

delegate such authority to third parties, here the decision-makers were mental health professionals

appointed by the court, and the trial court maintained the power to review their decisions if

challenged by the parties.

The terms of this order are sufficiently specific so as to be enforceable by contempt,

and the trial court, therefore, did not abuse its discretion in granting the therapists the right to deny

Moe a specific period of possession if they mutually agreed it was in the best interest of the children.

Moe's fourth issue is overruled. (14)

ATTORNEY'S FEES

The final order issued in June 2004 awarded attorney's fees against Moe and the

grandparents, jointly and severally, in the following amounts: $15,000 for Laurie Nowlin, the

attorney ad litem, and $20,000 for John Barrett, Malmquist's attorney. (15) The June order was

confined to the attorneys' work during the trial phase and did not mention any appellate fees.

Malmquist, therefore, filed a motion to reform the judgment on July 20, 2004, seeking an attorney's

fee award of $20,000, should Moe and/or the grandparents appeal. Moe responded with her own

motion for reconsideration, urging that the initial award of attorney's fees was unjust and that

Malmquist's motion to add appellate fees should be denied because $20,000 was an unconscionable

amount. At a hearing on July 23, 2004, the trial court denied Moe's motion, announced it would

award Malmquist's attorney $5,000 in appellate fees, and asked that an order be prepared to reflect

that pronouncement. The only written memorialization appearing in the record of the July

pronouncement, however, is a reformed final order issued on October 18, 2004, (16) which was after

the trial court's plenary power expired. See Tex. R. Civ. P. 306a, 329b (regarding timetables for

plenary power).

On appeal, Moe and the grandparents challenge the awards assessed against them in

favor of both the ad litem and Malmquist's attorney, for both the trial and appellate phases. They

urge (1) that each of these awards constituted an abuse of the trial court's discretion, (2) that it

violated section 261.106 of the family code to assess Malmquist's attorney's fees against them, and

(3) that the October 2004 award of appellate fees is void based on the expiration of the court's

plenary power.

Abuse of Discretion

Section 106.002 of the family code governs the award of attorney's fees in suits

affecting the parent-child relationship. Tex. Fam. Code Ann. § 106.002 (West Supp. 2004-05). In

such cases, we review the award of attorney's fees for an abuse of discretion. Tull v. Tull , 159

S.W.3d 758, 760 (Tex. App.--Dallas 2005, no pet.). There is no abuse of discretion where an award

of attorney's fees is supported by the evidence. Id .

Moe's only argument in support of her claim that the trial court abused its discretion

by awarding attorney's fees against her (17) is that her allegations that Malmquist "batter[ed] the

children and [her] allegations of child abuse were not only brought in good faith but were proven to

be absolutely true." As discussed in relation to the conservatorship issues, the evidence did not

corroborate Moe's allegations of abuse, but instead was sufficient to support the trial court's finding

that Malmquist had not engaged in a pattern or history of abuse towards L.M.M. or S.D.M.

Accordingly, this claim does not demonstrate an abuse of discretion on behalf of the trial court.

Moe's fifth issue is overruled.

Harold and Irene, on the other hand, assert several grounds for their claim that the

trial court abused its discretion in awarding attorney's fees against them in favor of the ad litem and

Malmquist's attorney. They urge that these awards constitute impermissible sanctions levied against

them in an attempt to collect fees owed by their apparently insolvent daughter, (18) which are designed

to punish them for helping her financially (19) and to discourage them from being involved in further

litigation regarding the custody of their grandchildren. Harold and Irene also urge that the awards

were an abuse of discretion because the ad litem and Malmquist's attorney failed to segregate their

fees among Moe and them and between different proceedings, actions, and motions; they urge that

they should not be responsible for any fees incurred prior to August 26, 2003, the date they

intervened. Finally, the grandparents challenge the award of the ad litem's fees against them on the

grounds that there is no evidence or insufficient evidence that their conduct made the appointment

of the ad litem necessary.

Attorney's fees as sanctions

Harold and Irene's argument that the attorney's fees were assessed against them as

an impermissible sanction is without merit because the trial court did not award the attorney's fees

as sanctions. The court denied Malmquist's motion to enter a monetary sanction against Harold and

Irene (20) and stated that these fees were awarded against them "[p]ursuant to Section 106.002 of the

Texas Family Code . . . as reasonable and necessary attorney's fees and expenses." Thus, rather than

constituting an award of sanctions for any fees that accrued or any conduct that occurred in prior

litigation, the attorney's fees awarded in the June 2004 order are merely a judgment to collect the

fees that accrued in the current phase of litigation, which was initiated by Moe and in which the

grandparents intervened.

Harold and Irene do not dispute that they were a party to the instant case, and they do

not challenge that the fee amounts awarded to either Malmquist's attorney or the ad litem were

unreasonable or unnecessary. Instead, they only dispute their responsibility for the fees by claiming

that the record demonstrates no evidence or insufficient evidence to find that they have aided,

abetted, encouraged, or conspired with Moe in the litigation, or that their actions have been frivolous

or in bad faith. Because these fees were not entered as sanctions, however, there is no need for

evidence of conspiracy or bad faith on their behalf. Rather, to affirm the award, there need only be

sufficient evidence in the record upon which the trial court could determine the award was

"reasonable." In a suit affecting the parent-child relationship, this is the only statutorily-defined

requirement and trial courts are otherwise afforded broad discretion in determining the propriety of

an attorney's fees award. See Tex. Fam. Code. Ann. § 106.002.

The legal and factual sufficiency of the evidence are factors to be considered in

whether the trial court abused its discretion, but they are not independent grounds of error. Doyle

v. Doyle , 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.). In reviewing the legal sufficiency

of the evidence, we consider the evidence in a light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was

true and we must disregard all evidence that a reasonable factfinder could have disbelieved or found

to have been incredible. In re J.L. , 163 S.W.3d 79, 85 (Tex. 2005). "Under traditional factual

sufficiency standards, a court determines if a finding is so against the great weight and

preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly

demonstrates bias." In re J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002).

Although the grandparents claimed to be adverse to Moe in the current litigation, their

testimony revealed otherwise. When asked what Moe had done wrong as a parent, Harold testified

that "the only thing I can think of [is] talking about their father and stuff like that in front of the

kids." He was asked this question several times, but offered nothing further. The trial court

expressed surprise that, although "given five opportunities," Harold failed to mention either the tape-recorder incident involving S.D.M. or the school incident, where Moe screamed at and belittled

L.M.M. Irene testified that she did not believe Moe posed a psychological danger to the children,

that Moe's visits with the children did not need to be supervised, and that the court's limitations on

Moe's rights were imposed as punishment. Moe's sister agreed that "the goal that [she, Moe, the

grandparents], and other family members have had for the last eight years is to have custody of these

children removed from [Malmquist] and restored to [Moe]." The other evidence concerning whether

the grandparents encouraged Moe's previous litigation through their financial support is irrelevant

to this issue because the fees awarded in the June 2004 order only pertain to the attorneys' work in

the current action, which was brought by Moe and to which the grandparents were a party.

Because there is legally sufficient, credible evidence on which the trial court could

determine that the grandparents were aligned with Moe in the current litigation and because the fees

were not awarded as sanctions, it was not an abuse of discretion for the trial court to determine that

it was "reasonable" for Harold and Irene to be held jointly and severally responsible for the resulting

attorney's fees accrued by Malmquist's attorney and the ad litem.

Failure to segregate fees

Harold and Irene also challenge the attorney's fees award on the grounds that the

attorneys failed to segregate their fees as between Moe and themselves (21) or between various

proceedings, actions, and motions. They urge that it was an abuse of discretion to hold them

responsible for any fees that accrued prior to their intervention into the lawsuit on August 26, 2003.

Because Harold and Irene do not cite any authority in support of their claim that the

attorney's fees were unreasonable unless segregated, this issue is waived. See Tex. R. App. P. 38.1

(appellant's brief must contain "a clear and concise argument . . . with appropriate citations to

authorities).

Furthermore, Harold and Irene do not appear to have otherwise preserved error on the

issue of whether the trial court abused its discretion by awarding unsegregated fees against them.

See Tex. R. App. P. 33.1 (to preserve appellate issue, party must present timely, specific objection,

request, or motion and obtain ruling or refusal to rule from trial court); Villasenor v. Villasenor , 911

S.W.2d 411, 420 (Tex. App.--San Antonio 1995, no writ) (complaint about failure to segregate

attorney's fees was waived because not raised in open court or specifically in motion for new trial).

When the ad litem offered testimony of her attorney's fees and an exhibit in support of them, the

grandparents did not object on any ground, including the failure to segregate fees. On cross-examination of the ad litem, their counsel elicited testimony that, since the grandparents'

intervention, the ad litem had accrued about $37,000 in fees, about $15,000 of which pertained to

the motion to modify. This evidence supports the trial court's award of $15,000 in favor of the ad

litem, jointly and severally against Moe and the grandparents, because that is the amount she testified

had accrued since their intervention on the issue relevant to their motion--the modification of

conservatorship. Likewise, when Malmquist's attorney testified to his fees, the grandparents did not

object. Malmquist's attorney stated in response to their cross-examination that he was owed over

$30,000 for the current litigation. Although he did concede that this amount covered the entire

proceeding, beginning with Moe's motion filed a year before the grandparents intervened, the

grandparents never argued to the trial court that the fees should be segregated on this basis. And,

in any event, the trial court only assessed $20,000 in favor of Malmquist's attorney against Moe and

the grandparents.

Following both the ad litem's and Malmquist's attorney's presentation of fees, the

only arguments made by Harold and Irene on the issue of attorney's fees were (1) that "[Malmquist]

doesn't need to be rewarded. . . . Because if that happens, he's going to be king of the world, and

he's got empowerment problems and problems using his power and his authority" and (2) that

interest should not be assessed on the awards. These arguments do not speak to whether it was error

to not segregate the fees.

At the July 23, 2003, hearing on the motion for reconsideration of the June 2004

order, Moe's attorney stated that "the Court has no authority to assess attorney's fees or costs against

[Harold and Irene]," to which the trial court asked, "Do you represent [the grandparents]?," and she

responded, "No, not at this time." The court said, "then I don't want to hear any argument about

that. . . . [L]et [their counsel] address that." Thereafter, the grandparents' attorney stated that "my

instructions from [Harold and Irene] with regard to the motion for reconsideration are to be neutral

about it, let the Court make whatever decisions it makes. . . . [T]hat's all I have to say about the

motion for reconsideration." The trial court then ruled, stating that "the motion for reconsideration

is, in all respects, denied." Although Harold and Irene subsequently asserted the failure to segregate

as an error in a motion for new trial on July 26, 2004, this came after their counsel waived any error

at the hearing.

In any event, when non-parents intervene in suits affecting the parent-child

relationship, those parties are equally subject to having attorney's fees assessed against them, and

there is no requirement that the fees be segregated between the parental and non-parental parties.

See Garner v. Garner , 673 S.W.2d 413, 415, 418 (Tex. App.--Fort Worth 1984, writ dism'd w.o.j.)

(not abuse of discretion to award attorney's fees against mother and maternal grandparents, where

maternal grandparents intervened seeking custody against wishes of mother, but custody was

awarded to paternal grandparents); Yancey v. Koonce , 645 S.W.2d 861, 864-65 (Tex. App.--El Paso

1983, writ ref'd n.r.e.) (not abuse of discretion to award attorney's fees against both father and

paternal grandparents, where latter intervened seeking custody of child in event that custody not

awarded to father). Section 106.002 provides the court broad discretion in a suit affecting a parent-child relationship to award attorney's fees as it deems "reasonable." Tex. Fam. Code Ann.

§ 106.002 . There is no need to segregate attorney's fees for separate claims if they "arise from the

same transaction and are so interrelated that their prosecution or defense entails proof or denial of

essentially the same facts." Villasenor , 911 S.W.2d at 420 . Here, all issues raised in the underlying

litigation--whether concerning the requests to modify conservatorship or the requests to hold Moe

and Malmquist in contempt for violating court orders--centered on what should be done in the

children's best interest and were, therefore, dependent on the same facts--those concerning the

parents' actions and what the best home environment would be for the children.

Given the grandparents' failure to cite supporting authority, their failure to raise the

issue before the trial court, and the existence of authority contrary to their position, the trial court did

not abuse its discretion in finding that it was reasonable to award the attorney's fees against Moe and

the grandparents, jointly and severally, without segregation of those fees.

Ad litem's fees

Harold and Irene's final ground for complaining that the trial court abused its

discretion in assessing attorney's fees against them, jointly and severally with Moe, is that they

should not be responsible for any of the ad litem's fees because they did nothing to necessitate the

ad litem's appointment or continued involvement. While we agree that an ad litem's fees should not

be taxed against a party who was not responsible for any of those fees being incurred, see Dawson

v. Garcia , 666 S.W.2d 254, 265 (Tex. App.--Dallas 1984, no writ), we disagree with the

grandparents' contention that they have no such responsibility in this case.

The ad litem's purpose was to represent the children's best interests, which included

her work to determine who should be appointed and/or maintained as a conservator for the children.

See Tex. Fam. Code Ann. § 107.021 (West Supp. 2004-05). The grandparents intervened, seeking

appointment as the children's sole and/or joint managing conservators, thereby contributing to the

need for the ad litem's continued involvement in the case. The grandparents' intervention required

additional preparation and time on the ad litem's behalf, such as her having to organize a home study

for the grandparents and having to prepare cross-examinations of them and the multiple witnesses

they called on their behalf. Although the grandparents were not acting in bad faith, that is not a

requirement in order to hold them responsible for a portion of the ad litem's fees. See Dawson , 666

S.W.2d at 265 . Moreover, as discussed in relation to the segregation of fees, the ad litem's testimony

demonstrates that the only fees assessed in her favor against Harold and Irene were those that

accrued following their intervention and in relation to their issue--the modification of

conservatorship.

This case is distinguishable from Minns v. Minns , which held it was an abuse of

discretion for the ad litem's fees to be assessed, jointly and severally, against the father and the

paternal grandmother, who intervened asking to be named as a possessory conservator with visitation

rights. 615 S.W.2d 893, 897-98 (Tex. App.--Houston [1st Dist.] 1981, writ dism'd). The holding

in Minns was based on the court's determination that the grandmother was a "successful" party

because she was granted the relief requested in her petition. Id . at 898 (citing Tex. R. Civ. P. 131

(successful party to a suit shall recover costs from adversary)). Unlike the grandmother in Minns ,

here the grandparents were ultimately not successful, given that they were not appointed sole or joint

managing conservatorship as requested in their petition. Based on this and on the facts that they

contributed to the ad litem's work and that the trial court only assessed the portion of the ad litem's

fees that accrued after their involvement and in relation to their issue, it was reasonable for the trial

court to hold Harold and Irene responsible for part of the ad litem's fees.

The trial court did not abuse its discretion in awarding attorney's fees in favor of

Malmquist's attorney and the ad litem, against the grandparents and Moe, jointly and severally, on

the grounds that the fees constituted an impermissible sanction, that the fees should have been

segregated, or that the grandparents did not contribute to the need for the ad litem. Harold and

Irene's second and third issues are overruled.

Family Code section 261.106

In Moe's sixth issue and in the grandparents' fourth (22) issue, they assert that it violated

section 261.106 of the family code to award attorney's fees against them because they are "immune"

from the imposition of the fees based on their "good faith . . . participat[ion] in a judicial proceeding

arising from a report, petition, or investigation of alleged child abuse." Tex. Fam. Code Ann.

§ 261.106 (West 2002). Moe and the grandparents urge that, because they supported their requests

to be awarded conservatorship over Malmquist with allegations that Malmquist abused the children,

they should be immunized from paying any attorney's fees incurred in litigating this custody battle.

Neither Moe nor the grandparents, however, once mentioned this statute or claimed

immunity before the trial court, even in Moe's Motion for Reconsideration of Award of Attorney's

Fees or in the grandparents' Motion for New Trial , which was dedicated solely to the challenge of

the attorney's fees. Therefore, error was not preserved on this issue. See Tex. R. App. P. 33.1.

In any event, the immunity prescribed by section 261.106 would not protect Moe or

the grandparents here because this litigation primarily concerned the modification of a custody order;

it was not a "child abuse case." "The clear import of the progression of the [duty-to-report] statutes

is that the legislature intended to protect reporters of child abuse from liability for the act of

reporting the abuse itself , not from civil or criminal liability generally. State v. Harrod , 81 S.W.3d

904, 908-09 (Tex. App.--Dallas 2002, pet. ref'd) (emphasis added) (statute's immunity does not

extend beyond act of reporting abuse, assisting in the investigation of abuse, or testifying in a child

abuse trial).

Moe's sixth issue and the grandparents' fourth issue are overruled.

Void Order after Expiration of Plenary Power

In their final challenge to the award of attorney's fees, Moe and the grandparents urge

that the award of appellate fees in favor of Malmquist's attorney, against them jointly and severally,

should be reversed because it was contained in a void order issued after the expiration of the trial

court's plenary power. See Tex. R. Civ. P. 306a, 329b (regarding timetables for plenary power).

Malmquist agrees that the October 2004 reformed order, which contained the $5,000 appellate

award, was void, but he asserts that the award should be upheld as a "temporary order" under section

109.001. See Tex. Fam. Code Ann. § 109.001 (a) (West 2002).

Section 109.001(a) provides that

[n]ot later than the 30th day after the date an appeal is perfected, on the motion of any

party or on the court's own motion and after notice and hearing, the court may make

any order necessary to preserve and protect the safety and welfare of the child during

the pendency of the appeal as the court may deem necessary and equitable. In

addition to other matters, an order may: . . . (5) require payment of reasonable

attorney's fees and expenses.

Id . By its plain language, this provision does not apply to preserve the award of Malmquist's

appellate attorney's fees. Here, after the appeal was perfected, there was no motion filed by any

party or by the court sua sponte seeking the temporary award of appellate attorney's fees on

Malmquist's behalf. See id. Even if Malmquist's previous motion, filed in July 2004, were

considered as satisfying this requirement, there was no notice given to the parties about a temporary

order for appellate attorney's fees and no hearing on the matter, as required by the statute. See id.

Because there was no temporary order entered awarding Malmquist's attorney

appellate fees and the October 2004 reformed order that attempted to do so was void, we vacate the

$5,000 in appellate fees awarded in favor of Malmquist's attorney. Moe's seventh issue (23) and the

grandparents' first issue are sustained.

CONCLUSION

The trial court did not abuse its discretion in issuing its final order of June 28, 2004.

The order issued on October 18, 2004, which attempted to add an award of appellate fees in favor

of Malmquist's attorney, is void. Accordingly, we affirm the June 2004 order in all respects and

vacate the October 2004 order.

__________________________________________

Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear: Opinion by Justice Patterson;

Concurring Opinion by Justice Puryear

Affirmed in Part; Vacated in Part

Filed: August 31, 2005

1. L.M.M., the daughter, turned sixteen in April 2005, and S.D.M., the son, will be fifteen in

September 2005.

2. We will refer to the mother as "Moe" and the grandparents as "Harold and Irene" or "the

grandparents."

3. The record presents some confusion over the exact modifications sought by Moe. On its

face, her Second Amended Petition to Modify Parent-Child Relationship makes no mention of a

request to be appointed as the children's sole managing conservator, and such a request was likewise

not made in her prior motions to modify. Instead, her petition makes a series of allegations about

Malmquist's behavior with the children--that he would drink and drive, make disparaging comments

about Moe, and abuse the children emotionally and physically--and requests that she be given the

right to determine S.D.M.'s primary residence. Also, Moe testified that she wanted L.M.M. to live

with Malmquist and S.D.M. to live with her. Nevertheless, the court and other parties refer to Moe's

petition as a request that she be appointed sole managing conservator of the children. For example,

in its findings of fact and conclusions of law, the trial court specifically found that Moe's "request

to be appointed as sole managing conservator of [L.M.M. and S.D.M.] is not in the best interest of

[the children]." And, in his brief, Malmquist cites to Moe's petition as a "request that she be named

as sole managing conservator of the children." Although it does not appear that Moe asserted this

request within the four corners of her petition, for the purpose of this appeal, we will assume that a

request by Moe to be the children's sole managing conservator was properly before the trial court.

4. At the conclusion of the October 2003 hearings, the children were temporarily placed at

the Texas Baptist Children's Home, by agreement of the parties, until a better solution could be

found. On October 30, 2003, the court ordered that, until the March 2004 review hearing, Malmquist

would retain the right to establish the children's residence, but the location was limited to the

grandparents' home, and that Malmquist would have possession on the first, third and fifth

weekends, as well as the winter holidays, while Moe was to have only supervised visits twice a

month at Kids Exchange once she completed her contempt sentence and began treatment with a

therapist.

5. Those specific terms were set forth in an attachment to the June 2004 order.

6. Several witnesses testified about this episode, including Malmquist, police officers, the

children's therapist, school counselors, and S.D.M.

7. This included conducting individual, in camera interviews with both L.M.M. and S.D.M.

Because their living arrangement preferences are not binding on the trial court, see Tex. Fam. Code

Ann. § 153.009 (West 2002), and we respect the need for confidentiality of this sensitive testimony,

their stated preferences will not be repeated here. We presume the trial court considered this

testimony, along with all of the other evidence, and afforded it appropriate weight when determining

what was in the best interest of the children. See Gillespie v. Gillespie , 644 S.W.2d 449, 450-51

(Tex. 1982).

8. On appeal, no party asserts that the grandparents should have been appointed as

conservators of the children.

9. On April 21, 2004, Dr. Lowry wrote a letter to the court stating, "I believe she can be

trusted with standard visitation."

10. The court stated that Moe "has had opportunities prior to the hearing in October, as far

back as almost 10 years, to go to the counseling. . . . And she has continually and willfully refused

to do it, and I'm not going to make it any more convenient for her now. It's Dr. Lowry, and she can

either go or she cannot go. . . . But the gate to visitation, [Moe] has the key."

11. The trial court's order specifically stated that, upon the therapists' written agreement that

"any specific period of possession is not in the children's best interest, . . . that period of possession

is ordered [to] not occur." (Emphasis added.)

12. See In re R.D.Y. , 92 S.W.3d 433 (Tex. 2002) (Justice Hecht writing that petition for review

should be granted because courts of appeals disagree about whether it is permissible to order that

conservator's possession rights are "solely at the discretion of a managing conservator," and listing

relevant opinions).

13. Contrary to these cases, however, in In re R.D.Y. , the First Court of Appeals affirmed a

trial court's order that gave the grandmother "sole discretion" over the mother's possession rights

based on the grandmother's determination of whether the mother was "mentally and physically

capable of exercising her visitation with the child." 51 S.W.3d 314 , 323 n.1, 324 (Tex.

App.--Houston [1st Dist.] 2001, pet. denied). The court held this order was not an abuse of

discretion because the mother could enforce it by filing a motion to modify if she felt the

grandmother was abusing her power to evaluate whether or not the mother was capable of exercising

her visitation rights. Id . at 324. We agree with the Texarkana court's statement about In re R.D.Y.

that, "[a]lthough a judge can rightfully restrict the conditions of [visitation] . . ., we respectfully

disagree . . . that giving total discretion, unenforceable by contempt, to one conservator constitutes

a mere restriction on the conditions of visitation." In re A.P.S. , 54 S.W.3d 493, 499 (Tex.

App.--Texarkana 2001, no pet.).

14. Moe states that her four issues regarding the conservatorship order constitute a challenge

to twelve findings of fact issued by the trial court in relation to that order. The record demonstrates

sufficient evidence to support those findings.

15. Malmquist was also ordered to pay the attorney ad litem $5,000, which he does not dispute

on appeal.

16. The order stated that the appellate fees were awarded against Moe and the grandparents,

jointly and severally, in favor of John Barrett, and that the award was "conditioned on the pursuit

by any or all of said parties of an ultimately unsuccessful appeal." It also provided for a remittitur

of $5,000 to Moe and the grandparents, jointly and severally, "if an appeal is not perfected."

17. Moe claims it was an abuse of discretion to assess "any" fees against her for Malmquist's

attorney and to assess "the greater portion of" the fees against her for the ad litem.

18. They believe the court awarded fees against them jointly and severally because

Malmquist's attorney has been unable to collect a prior judgment against Moe (for $20,000 in fees)

since 1997.

19. Irene testified that, including the $2,500 worth of attorney's fees that they have paid for

Moe in the current litigation, the total amount of attorney's fees they have paid on Moe's behalf is

approximately $42,000, that Moe has paid very little of it back, and that they do not expect her to

reimburse them. She also testified that they purchased the mortgage on Moe's house in 2001; the

total cost of the loan was $87,925. Moe testified that Harold and Irene do not require her to pay rent.

20. On October 21, 2003, Malmquist filed a motion seeking (1) a judgment of attorney's fees

in favor of his attorney, jointly and severally against Moe and the grandparents, and (2) the entry of

a monetary sanction against Harold and Irene. The June 2004 order stated that it considered all

motions before it, that the relief sought by Malmquist was denied in part and granted in part, and that

all requested relief "not expressly granted herein is denied." The June order did not mention the

sanctions sought by Malmquist and, therefore, it denied that relief.

21. Harold and Irene additionally claim that Malmquist's attorney should have allocated the

fees between the ad litem, in addition to Moe and themselves, and that the ad litem should have

allocated her fees against Malmquist, in addition to Moe and themselves. But since no fees were

assessed against the ad litem, any failure to segregate fees to the ad litem is immaterial. Further, a

portion of the ad litem's fees were assessed separately against Malmquist, and so this argument is

also without merit.

22. Although not designated as the grandparents' "fourth" issue, it was the sole issue asserted

in their supplemental brief, following the three issues raised in their initial brief.

23. Moe states that her fifth, sixth, and seventh issues regarding the attorneys constitute a

challenge to seven findings of fact issued by the trial court in relation to that order. The record

demonstrates sufficient evidence to support those findings.