in the Interest of A.E.A., a Child
2013 Tex. App. LEXIS 8935
| Tex. App. | 2013Background
- Parents divorced in 2008; decree named them joint managing conservators and contained special education provisions: child to attend specified preschools and Greenhill Private School, with David to pay tuition and take steps to enroll the child.
- Child was denied admission to Greenhill; subsequently attended public school in Plano ISD.
- In 2010 both parents filed competing petitions to modify conservatorship, each alleging a material and substantial change in circumstances and each seeking exclusive decision-making authority over the child’s education (David sought the right; Ginger sought the right and temporary child support).
- At bench trial the court set aside the Greenhill provision as moot and granted Ginger the exclusive right to make educational decisions; it retained joint managing conservatorship otherwise and entered extensive findings criticizing David’s communications and co-parenting.
- David appealed, arguing (1) insufficient evidence of a material and substantial change in circumstances and (2) multiple due-process and abuse-of-discretion errors at trial.
- The court affirmed: it held David judicially admitted the change-in-circumstances element in his own petition and rejected each due-process and sufficiency challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports a material and substantial change in circumstances required to modify conservatorship | David argued no evidence supported a material and substantial change since the divorce decree | Ginger argued change was satisfied; David’s own pleading alleged change | Court: David’s pleading judicially admitted the change element, so he cannot challenge its sufficiency on appeal; prong satisfied |
| Whether trial findings that David alienated the child or engaged in abusive communications are supported by evidence | David contended findings lacked evidentiary support and that Ginger was the alienating party | Ginger relied on emails and conduct showing David’s attempts to restrict Ginger’s access and many disparaging emails | Court: Emails and conduct provided more than a scintilla; findings are legally and factually sufficient |
| Whether setting aside the Greenhill-school provision was proper (mootness) | David argued the provision remained operative and not moot | Ginger argued child was denied admission and trial awarded her exclusive educational decision authority, making provision inapplicable | Court: Provision moot because child was not accepted and court granted Ginger exclusive educational decision-making; trial did not abuse discretion |
| Whether trial procedure deprived David of due process (time limits, evidence, bias) | David alleged truncated cross-examination, admission of unproduced diary evidence, judicial bias, and cumulative due-process violations | Ginger/respondent and trial court noted time limits were allocated and David did not object/make offer of proof; diary was used to refresh memory; comments did not show disqualifying bias | Court: Complaints waived or unsupported; no denial of due process; no reversible abuse of discretion |
Key Cases Cited
- In re L.C.L., 396 S.W.3d 712 (Tex. App.—Dallas 2013) (judicial admission in competing modification pleadings bars sufficiency challenge)
- Houston First Am. Sav. v. Musick, 650 S.W.2d 764 (Tex. 1983) (judicial admissions bind the parties)
- Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371 (Tex. 1993) (judicial admission conclusive on party who made it)
- U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224 (Tex. Civ. App. 1951) (discussing factors for treating admissions and testimonial statements)
- Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) (standards for reviewing trial-court findings)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency review standards)
- Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253 (Tex. 2002) (more-than-a-scintilla standard)
- Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (factual-sufficiency standard)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (judicial remarks seldom establish bias)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (judicial opinions formed during trial do not generally require recusal)