in the Interest of T.K.D-H., a Child
439 S.W.3d 473
Tex. App.2014Background
- 2005 order appointed Jose and Lupe joint managing conservators; Lupe granted exclusive rights including primary residence designation, consent to medical/dental/psychological/surgical treatment, and educational decisions.
- Two later modification orders (latest 2010) did not modify Lupe’s exclusive rights.
- Lupe filed a Motion for Enforcement in 2011; Jose filed a Petition to Modify the Parent-Child Relationship in 2012, amended in 2013; Jose alleged family violence and sought to designate primary residence.
- Bench trial denied Jose’s modification petition and kept Lupe’s exclusive rights, adding a specific caveat: Lupe could consent to invasive medical, dental, and surgical treatment.
- Jose appeals: (1) trial court exclusion of expert Mari Ries, (2) exclusion of two photographs, (3) admission of Lupe’s video into evidence, and (4) sufficiency of the evidence supporting Lupe’s exclusive rights.
- The appellate court affirmed the trial court’s rulings and held no reversible error in the challenged evidentiary rulings or in the sufficiency analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Ries as expert. | Ries should testify; late disclosure but good cause under Rule 193.6 and 215.2 not applicable. | Ries was not timely disclosed under Rule 194.2(f); 193.6(a) automatic exclusion; no preserved good cause claim. | Exclusion proper; Ries testimony excluded. |
| Admission of photographs. | Best interests should trump discovery to admit photos of alleged injuries. | Photographs undisclosed; exclusion valid. | Trial court did not abuse discretion in excluding photographs. |
| Admission of video. | Video supports Lupe’s position; probative and not substantially misleading. | Video partial and potentially misleading; court should exclude or limit. | Video admitted; any error not shown to render judgment improper. |
| Sufficiency to support exclusive rights grant. | Evidence proves material, substantial changes and best interests justify exclusive rights. | No material/substantial change; best interests not proven; modification should fail. | Jose failed to prove material and substantial change; trial court’s order affirmed. |
Key Cases Cited
- In re J.P.B., 180 S.W.3d 570 (Tex. 2005) (abuse of discretion standard for evidentiary rulings in parental termination cases)
- Bexar Cnty. Appraisal Dist. v. Abdo, 399 S.W.3d 248 (Tex. App.—San Antonio 2012) (disclosure defects support exclusion of expert)
- In re M.H., 319 S.W.3d 137 (Tex. App.—Waco 2010) (disclosure deficiencies for non-retained experts)
- Good v. Baker, 339 S.W.3d 260 (Tex. App.—Texarkana 2011) (good cause or lack of prejudice required for evidence admission)
- In re J.A.M., Jr., 2012 WL 1648215 (Tex. App.—San Antonio 2012) (untimely designation; admissibility issue)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing evidentiary rulings; probative force not determinative)
- Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113 (Tex. App.—San Antonio 2004) (harm analysis for evidentiary error; 44.1 applicability)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standards for legal/factual sufficiency when burdened)
- Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986) (great weight/preponderance standard for factual sufficiency review)
- Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006) (burden to prove material change in modification cases)
- Grayson v. Grayson, 103 S.W.3d 559 (Tex. App.—San Antonio 2003) (abuse of discretion framework in family law)