in the Interest of P.A.C and K.V.C., Children

Affirmed and Opinion filed June 9, 2016.

In The

Fourteenth Court of Appeals

NO. 14-14-00799-CV

IN THE INTEREST OF P.A.C AND K.V.C., CHILDREN

On Appeal from the 309th District Court

Harris County, Texas

Trial Court Cause No. 2013-17788

OPINION

Appellant Marisa Lawcasey appeals a final order modifying the parent-child

relationship. Marisa contends that the evidence is legally and factually insufficient

to support the jury’s verdict. She also contends that the trial court abused its

discretion by (1) awarding certain rights exclusively to appellee Daniel Casey; (2)

limiting Marisa’s periods of possession; and (3) ordering that her periods of

visitation be supervised. We affirm.

BACKGROUND

Marisa and Daniel divorced in Montgomery County on May 10, 2012.

Marisa and Daniel were appointed joint managing conservators of their two

children, P.A.C. and K.V.C.

In the final decree of divorce, both parents were given the joint right to

consent to the children’s marriages and to represent them in legal actions. Daniel

was awarded the exclusive right to designate the primary residence of the children.

The trial court further ordered that Marisa’s access to the children be supervised

through July 31, 2012, or until Marisa completed a psychological evaluation,

whichever occurred later. Assuming Marisa completed the psychological

evaluation and assuming Daniel did not show good cause to continue Marisa’s

supervised visitation, the order provided that Marisa’s possession and access to the

children would “step up” to a standard possession order beginning August 1, 2012.

The trial court held several hearings in August 2012, and signed an order

modifying the parent-child relationship on October 4, 2012. The trial court found

that Daniel had shown good cause for the court to continue the order requiring

supervision of Marisa’s possession and access to the children. All other orders

from the original decree remained in effect.

The case was transferred to Harris County — where Daniel and the

children resided — in March 2013. Daniel remarried in June 2013.

During 2013 and early 2014, both Daniel and Marisa filed original and

amended petitions to modify the parent-child relationship. Marisa sought a

standard possession order and requested that she be appointed the conservator with

the right to designate the primary residence of the children. Daniel requested that

2

he be appointed sole managing conservator of the children and that Marisa’s

visitation and possession periods continue to be supervised.

The case was tried to a jury in May and June 2014. The jury found that

Marisa should not be named as the conservator with the exclusive right to

designate the primary residence of the children, but also found that the joint

managing conservatorship should not be replaced by appointing Daniel as the sole

managing conservator of the children.

In its final order modifying the parent-child relationship signed July 23,

2014, the trial court ordered that Daniel and Marisa remain joint managing

conservators. The trial court ordered that Daniel remain as the conservator with

the exclusive right to designate the primary residence of the children, but also

awarded Daniel the exclusive right to consent to the children’s marriages and to

represent them in legal actions. The trial court ordered that Marisa’s possession of

and access to the children continue to be supervised, but provided that possession

and access would “step up” to a modified standard possession order if Marisa

complied with court-ordered psychological counseling and did not violate the

court’s order.

This appeal followed.

STANDARD OF REVIEW

In her first issue, Marisa challenges the legal and factual sufficiency of the

evidence supporting the jury’s verdict. In her second and third issues, Marisa

contends the trial court’s final order modifying the parent-child relationship

constituted an abuse of discretion.

A jury’s findings underlying a conservatorship decision are subject to

ordinary legal- and factual-sufficiency review. Arredondo v. Betancourt, 383

3

S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In a legal-

sufficiency review, we view the evidence in a light favorable to the finding,

crediting favorable evidence if a reasonable fact finder could, and disregarding

contrary evidence unless a reasonable fact finder could not. City of Keller v.

Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). In a factual-sufficiency review, we

examine the entire record and set aside a jury’s finding only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust. In re

T.T., 228 S.W.3d 312, 316 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

In conducting our review of both the legal and factual sufficiency of the evidence,

we are mindful that the jury, as fact finder, was the sole judge of the credibility of

the witnesses and the weight to be given their testimony. City of Keller, 168

S.W.3d at 819; In re T.T., 228 S.W.3d at 316. We may not substitute our judgment

for the fact finder’s, even if we would reach a different answer on the evidence.

See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); In re

T.T., 228 S.W.3d at 316.

Because a trial court has broad discretion to decide the best interest of a

child in family-law matters such as custody, visitation, and possession, we review a

trial court’s order modifying conservatorship for an abuse of discretion.

Arredondo, 383 S.W.3d at 734; Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex.

App.—Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion when

it acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze or

apply the law. Arredondo, 383 S.W.3d at 734. There is no abuse of discretion as

long as there exists some evidence of a substantive and probative character to

support the trial court’s decision. Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.

App.—Houston [14th Dist.] 2007, no pet.).

4

ANALYSIS

I. Legal and Factual Sufficiency

In her first issue, Marisa contends that the evidence is legally and factually

insufficient to support the jury’s verdict denying Marisa sole managing

conservatorship of the children.

Marisa did not request in her pleadings that she be appointed sole managing

conservator, nor was any question submitted to the jury regarding whether she

should be appointed sole managing conservator. Instead, the jury was asked only

whether Marisa should be granted the exclusive right to designate the children’s

primary residence, and, if not, whether Daniel should be appointed sole managing

conservator. Accordingly, because Marisa did not plead for such relief, request a

jury question on the issue, or object to the absence of such a question from the

charge, she has waived the issue on appeal. See Tex. R. Civ. P. 279 (any issues

excluded from the charge that are “not conclusively established under the evidence

and no element of which is submitted or requested are waived”).1

1

Marisa filed a supplemental letter brief asking this court to construe her first issue as a

challenge to the jury’s finding that she should not be named as the conservator with the exclusive

right to designate the primary residence of the children. We decline to do so. See Bartlett v.

Bartlett, 465 S.W.3d 745, 751 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Priddy v.

Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

Even if we were to construe Marisa’s first issue as she requests, we nevertheless would

determine that the evidence supports the jury’s verdict. To prevail on her petition to modify the

parent-child relationship, Marisa bore the burden of establishing that (1) modification was in the

children’s best interest, and (2) the circumstances of the children, a conservator, or another party

affected by the order had materially and substantially changed. See Tex. Fam. Code Ann. §

156.101(a)(1)(A) (Vernon 2014); Arredondo, 383 S.W.3d at 734. For the same reasons

discussed in detail in section III, infra, the record contains substantial evidence that it is in the

children’s best interest for Daniel to have the exclusive right to designate the children’s primary

residence. Accordingly, the evidence is legally and factually sufficient to support the jury’s

decision rejecting Marisa’s request that she be designated as the conservator with the exclusive

right to designate the primary residence of the children. See Lenz v. Lenz, 79 S.W.3d 10, 17

(Tex. 2002) (“[W]e view the evidence produced relevant to the best-interest factors in a light that

5

Marisa’s first issue is overruled.

II. Award of Certain Exclusive Rights to Daniel

In her second issue, Marisa contends that the trial court abused its discretion

by awarding Daniel the exclusive rights to consent to the children’s marriages and

to represent the children in legal actions “where no such relief had been pled by

[Daniel].”

The Texas Rules of Civil Procedure applicable to the filing of an original

lawsuit apply to a suit for modification under the Texas Family Code. Tex. Fam.

Code Ann. § 156.004 (Vernon 2014). Therefore, a trial court’s judgment must

conform to the pleadings, or to issues not raised by the pleadings but tried by

express or implied consent of the parties. See Tex. R. Civ. P. 67, 301; Flowers,

407 S.W.3d at 457.

In his petition to modify the parent-child relationship, Daniel requested that

he be appointed the sole managing conservator of the children. Daniel did not

explicitly request that he be granted the exclusive right to consent to the children’s

marriages or the exclusive right to represent the children in legal actions.

The jury determined that the joint managing conservatorship of the children

should not be replaced by appointing Daniel as the sole managing conservator. In

line with the jury’s verdict and as required by statute,2 the trial court’s final order

modifying the parent-child relationship appointed Daniel and Marisa as joint

managing conservators of the children, but awarded Daniel the exclusive rights

tends to support the jury’s verdict.”).

2

See Tex. Fam. Code Ann. § 105.002(c)(1)(B) (Vernon 2014) (“the court may not

contravene a jury verdict on . . . the appointment of joint managing conservators”).

6

(with notice to Marisa) to consent to the children’s marriages and to represent the

children in legal actions.3

Although Daniel did not specifically request the exclusive rights to consent

to the children’s marriages and to represent the children in legal actions, he did

request to be appointed sole managing conservator of the children. Section

153.132 of the Texas Family Code lists the exclusive rights belonging to a sole

managing conservator absent limitation by a court order, and includes “the right to

consent to marriage” and “the right to represent the child in legal action.” Tex.

Fam. Code Ann. § 153.132(5), (6) (Vernon 2014). Daniel’s request that he be

appointed sole managing conservator of the children therefore encompassed a

request that he be awarded the exclusive rights to consent to the children’s

marriages and to represent the children in legal action. See id. Accordingly, we

conclude that Daniel requested that he be awarded those rights in his petition, and

the trial court’s final order awarding those rights exclusively to Daniel conformed

to the pleadings and was not an abuse of discretion. See Flowers, 407 S.W.3d at

460 (“In her petition [to modify the parent-child relationship], though Lacey did

not specifically request that the trial court add the Restriction, she did request

broader relief that encompasses adding the Restriction. We conclude that Lacey

requested this relief in her petition, and that, as to adding the Restriction, the final

order conformed to the pleadings.”); see also Tex. Fam. Code Ann. § 101.016

(Vernon 2014) (“‘Joint managing conservatorship’ means the sharing of the rights

and duties of a parent by two parties, ordinarily the parents, even if the exclusive

right to make certain decisions may be awarded to one party.”).

3

See Tex. Fam. Code Ann. § 105.002(c)(2)(C) (Vernon 2014) (“the court may not submit

to the jury questions on the issues of . . . any right or duty of a conservator, other than the

determination of which joint managing conservator has the exclusive right to designate the

primary residence of the children . . .”).

7

Marisa’s second issue is overruled.

III. Limited Possession and Supervised Visitation

In her third issue, Marisa contends that the trial court abused its discretion in

deviating from the standard possession order by limiting Marisa’s periods of

possession and ordering that her periods of visitation be supervised.4

A child’s best interest is always the primary consideration of the court in

determining issues of possession and access. Tex. Fam. Code Ann. § 153.002

(Vernon 2014). A trial court may modify the provisions of the divorce decree that

provide the terms and conditions of conservatorship or that provide for the

possession of or access to a child, if modification would (1) be in the best interest

of the child, and (2) the circumstances of the child, a conservator, or other party

affected by the order have materially and substantially changed since the rendition

date of the divorce decree. See id. § 156.101(a)(1)(A) (Vernon 2014); Flowers,

407 S.W.3d at 456.

There is a rebuttable presumption that a standard possession order is in the

best interest of a child and provides reasonable minimum possession of a child for

a parent named as a joint managing conservator. Tex. Fam. Code Ann. § 153.252

(Vernon 2014). “However, a trial court is permitted to place conditions on a

parent’s access, such as supervised visitation, if necessary for the child’s best

interest . . . .” Hinojosa v. Hinojosa, No. 14-11-00989-CV, 2013 WL 1437718, at

4

The July 23, 2014 final order provided for four “step-up periods of possession” for

Marisa. The order provided that Marisa would initially have supervised visitation through the

SAFE Supervised Visitation Program for several hours on Wednesdays and on Saturdays

following the first, third, and fifth Fridays of each month. The order also required Marisa to

attend weekly psychological counseling with a court-appointed psychologist. After

approximately one year of compliance, the order provided for unsupervised visitation of

increasing duration and was set to step-up to what essentially amounted to a standard possession

order beginning November 1, 2015.

8

*6 (Tex. App.—Houston [14th Dist.] Apr. 9, 2013, no pet.) (mem. op.); see also

Tex. Fam. Code Ann. § 153.193 (Vernon 2014) (terms of an order restricting or

limiting a parent’s right to possession of or access to a child must not exceed those

required to protect the best interest of the child).

In its final order, the trial court stated: “The Court further finds that the

presumption that a standard possession order is in the best interest of the children

has been rebutted and that the circumstances of the children and of the joint

managing conservators makes entry of a Standard Possession Order in accordance

with section 153.001 unworkable and inappropriate.” Marisa did not request, and

the trial court did not make, findings as to why the final order deviated from a

standard possession order. See Tex. Fam. Code Ann. § 153.258 (Vernon 2014)

(where possession varies from the standard possession order, then on timely

written or oral request “the court shall state in the order the specific reasons for the

variance from the standard order”).

We apply the same standard of review when a party fails to request specific

reasons for the variance under section 153.258 as when a party fails to make a

request for findings of fact under Texas Rules of Civil Procedure 296 through 299.

Niskar v. Niskar, 136 S.W.3d 749, 754 (Tex. App.—Dallas 2004, no pet.); In re

T.J.S., 71 S.W.3d 452, 459 (Tex. App.—Waco 2002, pet. denied). Accordingly, it

is implied that the trial court made all findings necessary to support its judgment.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We review the record to

determine whether some evidence supports the judgment and the implied findings,

only considering the evidence most favorable to the judgment and upholding the

judgment on any legal theory supported by the evidence. Id.; Niskar, 136 S.W.3d

at 753-54; In re T.J.S., 71 S.W.3d at 459.

9

Evidence at trial established that Marisa had repeatedly violated the court’s

prior orders prohibiting her from initiating direct non-written communication with

Daniel. When exchanging the children, Marisa attempted on many occasions to

question Daniel in a hostile manner in front of the children and in direct

contravention of the court’s order. This disregard for the court’s orders did not

cease before the trial — Daniel testified that Marisa confronted him on the third

day of trial, yelling his name at him as he was walking into the courtroom. During

trial, Marisa admitted that she had violated the court’s orders regarding

communication and expressed the sentiment that she need not follow the court’s

orders if she disagreed with them.5

Moreover, there was other evidence that Marisa engaged in actions that were

not in the children’s best interest. Daniel testified that Marisa refused to shift her

visitation times to accommodate the children’s schedules on several occasions.

Marisa admitted that her refusal to change a visitation period so that her son could

attend a birthday party was not in her son’s best interest.

Testimony from other witnesses also could support the trial court’s decision.

The executive director of Access Builds Children (ABC) — a supervised visitation

program that initially supervised Marisa’s visits with the children in 2012 —

testified that ABC dismissed Marisa as a result of altercations between Marisa and

ABC staff and Marisa’s inability to comply with ABC rules. The ABC director

5

Evidence also demonstrated that Marisa violated other court orders. Marisa admitted

that on one occasion she kept her son’s homework (in contravention of the court’s orders) that he

needed to study for a test — an action she admitted was not in her son’s best interest. Daniel

testified that during one of her periods of unsupervised visitation Marisa took their daughter to

get the daughter’s ears pierced without notifying Daniel or discussing it with him, even though

Daniel was the parent with the exclusive right to consent to medical and surgical treatment

involving invasive procedures.

10

testified that she was concerned for the children while they were in Marisa’s

presence due to Marisa’s behavior.

Dr. Kit Harrison, a psychologist, testified that he was requested by the trial

court to do a neuropsychological evaluation of Marisa in July 2012. Dr. Harrison

diagnosed Marisa with major depressive disorder, with evidence of “some very

mild psychotic features associated with her depression.” Dr. Harrison also

diagnosed Marisa with obsessive compulsive personality disorder (OCPD), which

he described as “disabling, prolonged,” and “disruptive to self and others.” Dr.

Harrison testified that individuals with OCPD are “in front of the judge a lot.

They’re not going to follow the rule unless it flows elegantly. And so the therapy

becomes not giving up and trying to get them reoriented to why it’s important to

follow rules like divorce rules.”

A professional counselor who conducted therapeutic visits between Marisa

and the children testified that when the children mentioned Daniel or Daniel’s

wife, Marisa would exhibit agitation. She further testified that she witnessed a

confrontation between Marisa and Daniel where Marisa referred to Daniel as

“ungodly” in front of the children. The counselor testified that there was a

confrontation between Marisa and the counselor’s staff that caused the counselor to

express some concern about potential psychiatric issues or mental health issues

with Marisa. The counselor testified that if Marisa was continuing to have

problems controlling her emotions around Daniel or Daniel’s wife, and was

continuing to degrade Daniel, that those actions were not in the children’s best

interest. The counselor also testified that she believed some of Marisa’s emails

and text messages to the children were not appropriate, and that those messages

raised a concern as to how Marisa was acting when she was alone with the

children.

11

Marisa sent emails and text messages to Daniel and the children which may

have raised concerns with the trial court about Marisa’s mental state and her

portrayal of Daniel to the children when unsupervised. For example, Marisa

wrote: “I am asking that you return my children back to me because you are not

capable of taking care of them. You abandoned me and the children; therefore stop

persecuting God, me and my children. As we move forward to taking the case to

Washington D.C. then you will get your day with the President of the U.S.”

Marisa was unable to explain at trial what she meant by saying that the case would

move forward to Washington D.C. and that Daniel would get his day with the

President, other than to say that “[a]nything is possible.” The theme that Daniel

was “persecuting God, [Marisa], and the children,” came up repeatedly in Marisa’s

emails to Daniel, and Marisa likewise testified at trial that she “[a]bsolutely”

believed that he was persecuting them. In one instance, Marisa wrote to Daniel:

“Your serving and worshiping Satan is really confusing my children.” In another,

she wrote: “Your moving the location without discussing this with me will be held

against you, and your mocking God and persecuting me will end. Satan was

defeated and we are still praying for your salvation.” Likewise, she wrote: “I

serve a BIG GOD and You will answer to Him for what you are doing.” In a text

to the children, Marisa wrote, “Children spend time with your real father and the

best ever. He will bless y’all and he will help y’all. Don’t listen to those lies of

others. God is your dad.”

There also appears to have been some concern regarding Marisa’s home life.

Marisa testified that she was engaged to a man that she had been dating for 18

months but had not disclosed the engagement to the amicus attorney. The children

had never met her fiancé or been told about him. Marisa testified that she had not

performed a background check on her fiancé; did not know his social security

12

number; could not contact him by telephone because he was out of the country for

several months; and did not have an email address for him despite their having

dated for 18 months. In its final order, the trial court found that “based on the

evidence at trial and the best interest of the children[,] that good cause [sic] to

require disclosure by Marisa Veronica Lawcasey of the social security number, the

full name, and date of birth of the individual she identified during the trial of this

matter as her fiancé.”

The terms of an order restricting a parent’s right to possession of or access to

a child may not exceed those that are required to protect the best interest of the

child. Tex. Fam. Code Ann. § 153.193. The trial court does not abuse its

discretion in fashioning restrictions on a parent’s possession and access if the

record contains evidence to support a finding that such restrictions are in the best

interest of the children. In re H.D.C., 474 S.W.3d 758, 764 (Tex. App.—Houston

[14th Dist.] 2014, no pet.); see In re S.A.H., 420 S.W.3d 911, 928-29 (Tex. App.—

Houston [14th Dist.] 2014, no pet.).

Viewing the evidence presented at trial and discussed above in the light most

favorable to the judgment, the trial court could have concluded that restrictions on

Marisa’s periods of possession and the requirement that visitations remain

supervised were in the children’s best interest based on (1) Marisa’s uncertain

mental health state; (2) concern that Marisa would not follow the court’s orders to

the detriment of the children; or (3) concern that Marisa might damage the children

emotionally by demeaning their father when they were alone in her custody. 6

6

Marisa judicially admitted in her petition to modify the parent-child relationship that the

circumstances of the child, a conservator, or other party affected by the order had materially and

substantially changed since the rendition date of the divorce decree. See, e.g., Thornton v. Cash,

No. 14-11-01092-CV, 2013 WL 1683650, at *12 (Tex. App.—Houston [14th Dist.] Apr. 18,

2013, no pet.) (mem. op.) (“Because the Thorntons judicially admitted that a material and

substantial change had occurred, they are barred from disputing it on appeal.”); Roach v. Roach,

13

Although we acknowledge that supervised visitation is rare in a joint managing

conservatorship, it may be appropriate when dictated by the circumstances. See,

e.g., In re A.D., 474 S.W.3d 715, 719, 730-31 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (no abuse of discretion where trial court appointed both parents joint

managing conservators but ordered mother’s visitation be supervised because “trial

court was entitled to believe ‘the child is in danger of physical and mental harm’ in

[mother’s] care based on the likelihood she will continue her accusations [against

the father]”); In re K.N.C., 276 S.W.3d 624, 628 (Tex. App.—Dallas 2008, no pet.)

(no abuse of discretion where trial court appointed mother and father as joint

managing conservators but ordered father’s visitation be supervised because trial

court found that father had history of substance abuse, failed to comply with

court’s order to complete divorce seminar, and children would be in physical or

severe emotional danger if father had unsupervised possession and access).7

735 S.W.2d 479, 482-83 (Tex. App.—Houston [1st Dist.] 1987, no writ) (pleadings contained

judicial admission of material and substantial change of circumstances warranting change in joint

managing conservatorship).

7

But see Blackwell v. Humble, 241 S.W.3d 707, 718-21 (Tex. App.—Austin 2007, no

pet.). In Blackwell, the court of appeals noted that “[t]he trial court’s denial of Blackwell’s

possession and its severe restrictions on her access to the children give rise to implied findings

that conflict with those arising from her continued status as a joint managing conservator of the

children” Id. at 720. Although “[t]here was sufficient evidence to support the trial court’s

decision that some limitations on Blackwell’s possession and access would be in the children’s

best interests,” the court of appeals concluded that, “[b]ecause the trial court made no findings of

fact and because the implied findings that spring from the court’s determinations are in conflict,

we are unable to discern what guiding rules and principles the court applied and whether the

court appropriately exercised its discretion in denying Blackwell’s possession and limiting her

access to her children.” Id. Accordingly, the court of appeals reversed the portion of the

judgment restricting the mother’s visitation and remanded the case to the trial court for further

proceedings. Id. at 721.

In Blackwell, as here, the party whose possession and access rights were restricted did not

request findings of fact regarding the restrictions. See id. at 720. We decline to follow Blackwell

because its approach encourages parties to refrain from requesting findings of fact from the trial

court with the hope that any limitations on possession and access will be reversed and remanded

for additional hearings. Moreover, such action would constitute a usurpation of the trial court’s

14

We conclude that there exists some evidence of a substantive and probative

character to support the trial court’s decision. See Baltzer, 240 S.W.3d at 475.

Accordingly, the trial court did not abuse its discretion by limiting Marisa’s

periods of possession and ordering that her periods of visitation be supervised.

Marisa’s third issue is overruled.

CONCLUSION

Having overruled all of Marisa’s issues, we affirm the trial court’s judgment.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Frost and Justices Boyce and Wise.

function, as the dissenting justice in Blackwell noted:

Notwithstanding Blackwell’s failure to request findings of fact, the majority finds

these restrictions seemingly inconsistent with the trial court’s decision to maintain

Blackwell as a managing conservator and concludes that “we are left to speculate”

about what the trial court “believed” the evidence to be. These judgments go to

the heart of a trial court’s discretion, and we may not substitute our judgments for

that of the trial court.

Id. at 725 (Patterson, J., concurring and dissenting).

15