In the Interest of T.M.P. and J.C.P., Children
2013 Tex. App. LEXIS 10898
| Tex. App. | 2013Background
- Parents divorced in 2009; decree named both as joint managing conservators and gave Mother exclusive right to set children's primary residence without geographic limit; Father’s possession required supervision by paternal grandparents and transportation arrangements between Texas and South Carolina.
- After living in South Carolina, Mother refused November 2009 visitation after the older child made allegations of sexual abuse; multiple investigations (medical, forensic, law enforcement) found no corroboration; Father passed a required polygraph and criminal charges/probation revocation attempts were not pursued to conviction.
- Mother and maternal grandparents repeatedly contacted authorities and subjected the child to multiple exams/interviews despite professional determinations discounting abuse; Father alleged this conduct amounted to parental alienation and interference with visitation.
- Father filed to modify conservatorship (limit Mother’s residence-right to Tarrant/contiguous counties) and sued under Tex. Fam. Code ch. 42 for tortious interference; paternal grandparents intervened seeking damages for interference with their supervisory/transportation role.
- Trial court denied Mother’s termination attempt, granted Father’s modification limiting Mother’s domicile choice to Tarrant and contiguous counties, awarded Father $25,000 in attorney’s fees, and found Mother and maternal grandparents jointly and severally liable for $50,000 for tortious interference; paternal grandparents were also awarded but on appeal the court held they lacked standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father proved a material and substantial change to justify restricting Mother’s right to set residence | Father: Mother’s repeated, continued accusations and actions (multiple reports, exams, attempts to revoke probation, parental alienation) constituted a material and substantial change | Mother: Allegations alone are insufficient; no corroboration and investigations cleared Father | Court: Affirmed modification — sufficient evidence of material/substantial change (parental alienation efforts) |
| Whether restricting Mother’s residence to Tarrant/contiguous counties was in children’s best interest | Father: Restriction promotes frequent contact, safety, stability, and prevents continued interference/alienation | Mother: Children are thriving in SC with maternal extended family; relocation would harm those bonds and mother may lack resources in Texas | Court: Affirmed — evidence supported best-interest findings under Holley/Lenz factors (trial court credited Father’s evidence and witness credibility) |
| Whether paternal grandparents had standing under Chapter 42 to sue for interference with possessory rights | Paternal grandparents: As chaperones/facilitators they had "access" and thus possessory rights | Mother: Final decree explicitly denied grandparent visitation/rights; they had no court-ordered possessory right | Court: Reversed their recovery — they had no independent court-ordered possessory right and thus lacked standing under Chapter 42 |
| Whether $50,000 damages (plus $25,000 fees) for Father were supported and whether fee segregation/double recovery occurred | Mother: Award lacked evidence of mental anguish, specific costs, and fees were not segregated; double recovery possible because fees also awarded separately | Father: Parties stipulated to total attorney fees; trial court awarded statutory fees and damages for tortious interference; fees and damages both permissible under statute | Court: Affirmed award to Father — stipulation and evidence of total fees supported awards; segregation unnecessary because fees recoverable under the family-code claims; paternal grandparents’ award reversed (no standing) |
Key Cases Cited
- Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) (factors for relocation/residency modifications)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (best-interest factors for child custody)
- Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (standard for modification of conservatorship review)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal and factual sufficiency review principles)
- Tony Gullo Motors v. Chapa, 212 S.W.3d 299 (Tex. 2006) (attorney-fee recovery and requirement to segregate fees)
- BMC Software Belgium N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (implication of findings when no findings of fact are filed)