537 S.W.3d 238
Tex. App.2017Background
- Parents executed a 2011 agreed order naming Epps as sole conservator with exclusive right to designate the child's primary residence and imposing duties (notice of medical/school appointments, right of first refusal, access to records).
- Dispute arose; Deboise filed a counterpetition (2013) seeking designation as the conservator with exclusive residence decision-making; trial in Oct. 2015 submitted only the residence-designation question to the jury.
- Evidence at trial: Epps sometimes failed to provide medical/insurance information, notify Deboise of appointments, offer right of first refusal, and did not follow some allergy precautions; Deboise had a K9 at home but testified steps minimized exposure.
- Jury found Deboise should be designator of the child’s primary residence; trial court entered judgment accordingly.
- Epps appealed raising five issues: sufficiency of the evidence supporting the modification, denial of mistrial/new trial based on improper witness testimony, and inclusion of a jury instruction regarding gender neutrality.
Issues
| Issue | Plaintiff's Argument (Epps) | Defendant's Argument (Deboise) | Held |
|---|---|---|---|
| Legal/factual sufficiency of evidence to modify conservatorship (material change & best interest) | Evidence insufficient to show material and substantial change or that modification served child’s best interest | Epps’s conduct (withholding records, failing notifications, undermining right of first refusal, allergy care failures) constituted interference = material change; Holley factors support best interest | Affirmed: evidence legally and factually sufficient for material change and best interest |
| Judicial admission re: material change | Epps’s pleadings did not admit material change as to residence designation | Deboise contended Epps’s pleadings amounted to judicial admission | Court: pleadings about visitation/child support were not admissions regarding residence designation; no judicial admission found |
| Motion for mistrial/new trial for witnesses’ improper references to unrelated custody dispute | Testimony by two witnesses about unrelated dispute was highly prejudicial and required mistrial/new trial | Trial court instructed jury to disregard; presumption jury followed instruction; error did not probably cause improper judgment | Affirmed: denial of mistrial/new trial not an abuse of discretion |
| Jury instruction that conservatorship determinations are without regard to sex | Instruction was unnecessary and functioned as comment on evidence | Deboise: instruction correctly states law and was proper to submit | Even if submission was error, Epps showed no harm; instruction did not affect outcome |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency review and deference to factfinder)
- Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) (standards for modifying conservatorship and applying sufficiency review to jury verdicts)
- Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989) (factual-sufficiency review framework)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (overwhelming weight standard for upsetting a jury verdict)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (non-exhaustive factors to determine child’s best interest)
- Knowles v. Grimes, 437 S.W.2d 816 (Tex. 1969) (res judicata applies to best-interest findings existing at entry of prior custody order)
- Thota v. Young, 366 S.W.3d 678 (Tex. 2012) (standard of review for jury-charge rulings)