In the Interest of M.L., H.L., and G.L. v. the State of Texas
CourtTexas Court of Appeals, 9th District (Beaumont)
Date FiledOctober 8, 2026
Docket09-25-00052-CV
StatusPublished
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Full Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-25-00052-CV
__________________
IN THE INTEREST OF M.L., H.L., AND G.L.
__________________________________________________________________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 19-10-14018
__________________________________________________________________
MEMORANDUM OPINION
This is an appeal from a “Petition to Modify Parent-Child Relationship” filed
by the father, “Fred,”1 and a “Counter-Petition to Modify Parent-Child Relationship”
filed by the mother, “Alice,” seeking to modify an Agreed Decree of Divorce in
which the parties had been appointed joint managing conservators of their children,
M.L., H.L. and G.L. After a jury trial, Alice appeals the modification order (“the
Order”) entered by the trial court with respect to her children. The Order appointed
Fred as the sole managing conservator of the children and Alice as sole possessory
1
To protect the privacy of the parties, we use pseudonyms for the parties,
witnesses, and children. See Tex. Fam. Code Ann. § 109.002(d).
1
conservator of the children and ordered Alice to pay child support. Alice appeals the
Order, raising six issues. We affirm.
ISSUES ON APPEAL
Alice argues on appeal that:
1) erroneous jury charge instructions caused reversible error;
2) there was not legally or factually sufficient evidence to support a finding of
a material and substantial change in circumstances or that modification of the parties’
joint managing conservatorship to a sole managing conservatorship and possessory
conservatorship was in the children’s best interest;
3) the trial court’s erroneous exclusion of certain evidence was harmful;
4) the trial court’s awarding Alice less than a standard possession order was
not supported by sufficient evidence;
5) the trial court erred by entering judgment on a “reconstituted” jury verdict;
and
6) there was cumulative error committed by the trial court which requires a
new trial.
BACKGROUND
The February 2021 Agreed Decree of Divorce appointed both parents joint
managing conservators, required the children to remain in the Conroe Independent
School District schools, and ordered Fred to pay child support. Other rights and
responsibilities, aside from the child support, were generally shared between the
2
parents. Witnesses testified about events that occurred after the entry of the Agreed
Decree of Divorce, and the trial court admitted exhibits, including photographs
showing Alice’s home in disarray, containing unsafe clutter and animal urine and
feces in the children’s spaces.
Cleaning Lady witness M.M.—who cleaned Alice’s home twice weekly—
testified that, in the relevant period, she and her cleaning partner became concerned
for the safety of the children. M.M. testified that Alice’s home was “unsanitary” and
“unhygienic[,]” with toys and clothing strewn about and “sometimes animal feces
on the carpet” in the children’s upstairs living areas. M.M. said that she and her
cleaning mate took photographs, and M.M. verified that the photographs were taken
after the entry of the Agreed Decree of Divorce that the parties were seeking to
modify. The photographs showed dog urine on the kitchen floor during daytime
hours and feces in the upstairs entryway. M.M. testified this was a recurring
condition which was often present when she arrived in the morning to clean. She
testified that when Alice returned from grocery shopping, she frequently left
groceries on the kitchen counter that required refrigeration. She also saw Alice
chewing tobacco and frequently smoking cigarettes on the patio. M.M. said there
was very little food in the house and times when she bought “McDonalds[]” or
“pizza[]” for the children because they were hungry. M.M. testified that she
witnessed Alice drinking alcohol and smoking cigarettes while pregnant. M.M.
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advised Alice to refrain from consuming alcohol while pregnant, but she refused to
stop drinking. When Alice asked M.M. for money for gasoline, Alice returned from
the store with cigarettes. Alice also asked M.M. to use Alice’s food stamp card for
groceries and repay her in cash, which would have been food stamp fraud.
Former neighbor, M.S., testified about several incidents regarding Alice’s
behavior after the divorce. M.S. testified that she visited Alice’s home in August
2022 and found it in disarray with dirty clothes and dishes about the home. A few
months later, M.S. went back to Alice’s home for a party with other neighborhood
women and noticed that Alice was drinking vodka heavily while her boyfriend cared
for her newborn baby in one of the bedrooms. In July or August 2023, M.S. said that
Alice brought her household items, clothing, and toys and told M.S. that there was a
C.P.S. investigation and they were going to move to North Carolina.
M.S. testified that, at various times, Alice told her that she used to work for
Wall Street; worked on Wall Street; was a model for Victoria Secret; worked for her
dad who had top secret clearance above the president of the United States; worked
part-time for her husband; and that the reason she took random phone calls at night
was because she had to deal with people, like prime ministers in different countries,
and with the Russian government because there were things going on that she had to
be in charge of. Alice further told M.S. that her parents owned a vodka company and
had a hangar at Hobby Airport with “tons of vodka[]” that she ran, even though she
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was not working at the time to concentrate on her child custody case. Alice told M.S.
she was working on national and cyber security matters when she had to take “a
business call” to take a break from the children.
M.S. testified that Alice and her new husband, J.J., were having financial
troubles and M.S. helped by sending them groceries and paying their cable television
and internet bills when they got behind. M.S. testified, based on spending three hours
or more on many weeknights and weekend nights at Alice’s home, that J.J. was the
primary caregiver for the children while Alice drank up to a full bottle of vodka or
more, or sometimes bottles of wine, during the evenings. M.S. opined that the
children were more bonded to J.J. than to Alice and that J.J. was better with the
children.
M.S.’s testimony implied that Alice had taken a diamond ring with a wedding
band, a baseball card collection, and food out of M.S.’s house while M.S. was out of
town and Alice was taking care of M.S.’s daughter. M.S. also noticed bottles of
liquor and some of her clothes and towels were missing, which she later saw at
Alice’s home or in photos on Facebook. M.S. also believed Alice stole her
prescription anxiety medicines, muscle relaxers, and pain pills out of her closet
because Alice was the only person who would have taken the medications.
Fred’s current wife testified, echoing the testimony of M.M. and M.S., that
when Alice showed up intoxicated for one of the boy’s birthday party at her and
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Fred’s home, Alice wished “happy birthday” and hugged her other son who was not
celebrating a birthday. She was also concerned with Alice’s judgment because Alice
allowed a one-year-old child to hold Alice’s one-month-old baby. Fred’s wife
testified that a common problem that was emotionally difficult for the children was
trying to get Alice to bring or return the children’s clothing and sports items when
transferring the children between homes. She also testified that one of the children
would act defiant and distant when he returned from spending time with Alice and
that Alice’s parenting skills were poor compared to her own. She described bad
behavioral incidents one of the boys had at school that Fred handled because Alice
was not appropriately addressing the problems. Fred’s current wife testified that
Alice’s false accusations had adversely affected her and Fred’s relationship with his
children.
The jury also heard expert testimony regarding the children’s needs and
functioning, including the younger boy’s significant emotional regulation issues and
coping deficits. The court-appointed evaluator, James Zettel, Ph.D., a psychologist,
testified that both boys have behavioral problems that negatively affected their
functioning in everyday life. Dr. Zettel opined that Alice and her household did not
have a good grasp of (nor did they believe there was a problem with) the boys’
behavioral problems and how that affected their functioning as a family. He agreed
that Alice, because she does not accurately perceive how her behavior affects her
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children’s development, should probably not be the primary managing conservator
because she will likely not seek the help they need. In fact, one of the boys tried to
stab Alice and broke her ankle causing Dr. Zettel to conclude that his relationship is
conflicted and “it’s a relationship where I don’t think the adult in the relationship
has an idea of how to handle him.” In another incident, Alice withdrew one of the
boys from the psychiatric hospital (where Fred had taken him) against medical
advice that he was a danger to himself and others based upon his acting out with
physical violence.
Dr. Zettel agreed that the medical records showed that Alice lied to the medical
staff at a hospital when she alleged that Fred had engaged in multiple acts of abuse
and had a history of abusing the children–even alleging that Fred made one of the
boys vape marihuana. He agreed that Alice’s own parents, among other collaterals
he spoke with, told him Alice had a problem with telling the truth. Dr. Zettel also
opined that, if Alice coerced one of the boys into making up the sexual assault
allegations he reported against Fred, then he would change his recommendation as
to the primary conservator from Alice to Fred, which supports the conclusion
ultimately reached by the jury.
Dr. Zettel continued to opine that, if Alice is drinking alcohol heavily, that
would change his recommendation he made for her to continue as the primary
conservator and he would agree that she should be removed as such. He testified,
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among other things, that Alice suffered from depression and that her depression was
affecting the children. Dr. Zettel testified that things had gotten worse despite the
family members’ attending various individual and group therapy sessions over the
previous four years. Dr. Zettel testified that if the present family dynamic continues
to remain unchanged by individual and family therapy, the family will continue to
be dysfunctional and chaotic, which will have an adverse effect on the children.
After a nine‑day jury trial in August 2024, the presiding juror announced a10–
2 verdict. Neither party requested a poll. The court later explained on the record that
the signed verdict sheet was misplaced after the verdict was read. The court
reconstituted the verdict from the reporter’s record and the court’s copy of the charge
and proceeded to enter judgment based upon that reconstituted verdict.
Standards of Review
Charge Error
The trial court is required to submit jury questions in the jury charge raised by
the pleadings and evidence. See Tex. R. Civ. P. 278. “When an element of a claim is
omitted from the jury charge without objection and no written findings are made by
the trial court on that element then the omitted element is deemed to have been found
by the court in such manner as to support the judgment.” Serv. Corp. Int’l v. Guerra,
348 S.W.3d 221, 228-29 (Tex. 2011) (citing Tex. R. Civ. P. 279; In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002)).
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Modification of Conservatorship
A trial court may modify a conservatorship order if the circumstances of the
child, a conservator, or other party affected by the order have materially and
substantially changed since the order was rendered and the modification would be
in the child’s best interest. Tex. Fam. Code Ann. § 156.101(a)(1)(A). “The best
interest of the child is always the primary consideration in determining issues of
conservatorship.” In re A.B.P., 291 S.W.3d 91, 96 (Tex. App.—Dallas 2009, no pet.).
“A trial court enjoys wide latitude in determining the best interest of a minor child,
and we review its decision on a motion to modify for an abuse of discretion.” In re
A.P.Z., No. 05-25-00666-CV, 2026 Tex. App. LEXIS 4378, **4-5 (Tex. App.—
Dallas 2026, no pet.) (citing In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)).
Evidentiary Rulings
On appeal, complaints challenging a trial court’s evidentiary rulings are
reviewed under an abuse-of-discretion standard. See Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000) (citing Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
Sufficiency of the Evidence
In determining whether a trial court abused its discretion in its child custody
ruling, we do not consider legal and factual sufficiency as independent grounds of
error but as relevant factors in deciding whether the trial court abused its discretion.
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Newell v. Newell, 349 S.W.3d 717, 720 (Tex. App.—Fort Worth 2011, no pet.); In re
A.B.P., 291 S.W.3d at 95. In this regard, we consider whether the trial court had
sufficient information to exercise its discretion and whether it erred in its application
of that discretion. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010,
no pet.). The traditional sufficiency review is relevant with regard to determining if
the trial court had sufficient evidence to exercise its discretion. Id. (citing In re W.M.,
172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.)). We then ask whether
the trial court made a reasonable decision considering the evidence presented. In re
M.M.M., 307 S.W.3d at 849. “The best interest of the child shall always be the
primary consideration of the court in determining the issues of conservatorship and
possession of and access to the child.” Tex. Fam. Code Ann. § 153.002(a).
We review conservatorship determinations for an abuse of discretion. In re
J.A.J., 243 S.W.3d at 616; In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas
2011, no pet.). “The trial court is given wide latitude in determining the best interests
of a minor child.” Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re
H.M.B., No. 09-05-179-CV, 2006 Tex. App. LEXIS 2091, at *5 (Tex. App.—
Beaumont Mar. 16, 2006, no pet.) (mem. op.). In determining if the trial court abused
its discretion, we must decide whether the trial court acted without reference to any
guiding rules or principles–that the trial court’s decision was arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). The trial court does
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not abuse its discretion when it bases its decision on conflicting evidence. In re
M.M.M., 307 S.W.3d at 849. So long as there is some evidence to support the trial
court’s decision, we will not find an abuse of discretion. Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 211 (Tex. 2002). In our review, we acknowledge that “[t]he trial
court is in a better position to determine what will be in the best interest of the child
since it faced the parties and their witnesses, observed their demeanor, and had the
opportunity to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d
740, 743 (Tex. App.—Austin 2005, pet. denied).
Reconstituted Jury Verdict
Rule 34.5(e) states:
. . . . If a filing designated for inclusion in the clerk’s record has been
lost or destroyed, the parties may, by written stipulation, deliver a copy
of that item to the trial court clerk for inclusion in the clerk’s record or
a supplement. If the parties cannot agree, the trial court must–on any
party’s motion or at the appellate court’s request–determine what
constitutes an accurate copy of the missing item and order it to be
included in the clerk’s record or a supplement.
Tex. R. App. P. 34.5(e).
Cumulative Error
To prevail on a claim of cumulative error, Appellant must show that, based
on the record as a whole, but for the alleged errors the jury probably would have
rendered a verdict favorable to it. Endeavor Grp., LLC v. Kongsberg Power Products
Sys. I, LLC, No. 09-21-00300-CV, 2024 Tex. App. LEXIS 7136, at *45 (Tex.
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App.—Beaumont Oct. 3, 2024, pet. denied) (mem. op.) (citing Wyatt v. Turbo Rests.,
LLC, No. 05-20-00456-CV, 2022 Tex. App. LEXIS 6700, at *16 (Tex. App.—Dallas
Aug. 31, 2022, no pet.) (mem. op.)). If the appellant cannot demonstrate error, then
it necessarily follows that he likewise cannot show cumulative error. See Gonzalez
v. Abigail, No. 05-21-00474-CV, 2023 Tex. App. LEXIS 1555, at *12 (Tex. App.—
Dallas Mar. 9, 2023, no pet.) (mem. op.) (citation omitted) (rejecting a cumulative
error claim where no error was shown).
Analysis
Issue Two: Material and Substantial Change
We first address Alice’s second issue alleging that there is legally and factually
insufficient evidence that there has been a material and substantial change since the
last conservatorship order because that issue could result in reversal or remand
without considering the other issues. “When both parties allege in counter-petitions
that there has been a material and substantial change in circumstances since the last
order and both seek a modification of that order, the allegations constitute a judicial
admission that there has been a material and substantial change in circumstances
since the last order.” In re D.E.T., No. 09-22-00197-CV, 2023 Tex. App. LEXIS
5811, at *20 (Tex. App.—Beaumont Aug. 3, 2023, no pet.) (mem. op.) (citing In re
A.E.M., No. 09-18-00288-CV, 2020 Tex. App. LEXIS 1439, at *37 (Tex. App.—
Beaumont Feb. 20, 2020, no pet.) (mem. op.)); see also In re A.E.A., 406 S.W.3d
12
404, 410 (Tex. App.—Fort Worth 2013, no pet.) (“One party’s allegation of changed
circumstances of the parties constitutes a judicial admission of the common element
of changed circumstances of the parties in the other party’s similar pleading.”).
“‘Admissions in trial pleadings are regarded as judicial admissions’ in the case and
require no proof of the admitted fact, and ‘authorize the introduction of no evidence
to the contrary.’” In re A.E.M., 2020 Tex. App. LEXIS 1439, at *38 (quoting In re
L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013, no pet.)). Accordingly, we
conclude that the trial court could have reasonably found that there had been a
material and substantial change in circumstances since the last order. Therefore, we
overrule Alice’s issue number two.
Issue One: Jury Charge Error
In her first issue, Alice complains that there was error in the charge to the jury
that resulted in reversible error. Because there was no objection to the charge on the
basis that it omitted an element of a claim and the trial court did not make findings
on that element, there is a deemed finding in support of the judgment. See Serv.
Corp. Int’l, 348 S.W.3d at 229. “But just as with any other finding, there must be
evidence to support a deemed finding.” Id.
Alice complains that the charge to the jury did not contain an instruction
concerning the “fit parent” rule and the jury, therefore, made its decision without
consideration of the appropriate law. There is a “rebuttable presumption that the
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appointment of the parents of a child as joint managing conservators is in the best
interest of the child. . . .” Tex. Fam. Code Ann. § 153.131(b); see also id. §
153.002(a) (“The best interest of the child shall always be the primary consideration
of the court in determining the issues of conservatorship and possession of and
access to the child.”); Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014) (noting
same). Thus, unless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would significantly
impair the child’s physical health or emotional development, a parent shall be
appointed sole managing conservator or both parents shall be appointed as joint
managing conservators of the child. Tex. Fam. Code Ann. § 153.131(a). “[T]he fit-
parent presumption is ‘deeply embedded in Texas law’ as part of the determination
of a child’s best interest.” In re C.J.C., 603 S.W.3d 804, 812 (Tex. 2020) (citation
omitted). “‘[S]o long as a parent adequately cares for his or her children (i.e., is fit),
there will normally be no reason for the State to inject itself into the private realm of
the family . . . .’” Id. at 814 (quoting Troxel v. Granville, 530 U.S. 57, 68-69 (2000)
(plurality opinion)); see In re J.W.W., No. 09-23-00292-CV, 2024 Tex. App. LEXIS
1212, *45 (Tex. App.—Beaumont 2024, pet. denied).
The “fit parent” rule is the moniker for that part of Family Code section
153.131(a) which provides that “. . . unless the court finds that appointment of the
parent or parents would not be in the best interest of the child because the
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appointment would significantly impair the child’s physical health or emotional
development . . . .” Tex. Fam. Code Ann. § 153.131(a). Alice submitted a proposed
charge to the jury without requiring a jury finding on this issue, and the trial court
adopted that charge without objection. Because Alice failed to object to the court’s
charge, we must determine if legally sufficient evidence supports the deemed
finding. See Serv. Corp. Int’l, 348 S.W.3d at 228-29. A no-evidence challenge will
be sustained when
“(a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.”
Id. at 228 (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
There is ample evidence in the record to support the deemed finding that Alice
was not a “fit parent” at the time of trial upon which the jury could base its
conclusions. The “cleaning lady,” M.M., and former neighbor, M.S., testified that
the home was “unsanitary” and “unhygienic[,]” with toys and clothing strewn about
and “sometimes animal feces on the carpet” in the children’s upstairs living areas.
Alice smoked and drank alcohol in front of the children; there was not enough food
in the house such that M.M. sometimes bought food for the children; and Alice did
not hold a job. In addition, the custody evaluator, Dr. Zettel, admitted that Alice had
many mental health issues, was dishonest, and that dishonesty impacted her
15
parenting abilities to include truthful reporting about the children’s mental and
physical condition. Dr. Zettel opined that Alice and her household did not have a
good grasp of (nor did they believe there was a problem with) the boys’ behavioral
problems and how that affected their functioning as a family. Dr. Zettel agreed that
Alice, because she does not accurately perceive the effects her behavior is having on
the children’s development, should probably not be the primary managing
conservator because she will likely not seek the help they need. We conclude that
there is sufficient evidence to support the deemed finding that Alice is not a “fit
parent” entitled to be appointed as a managing conservator. See Serv. Corp. Int’l,
348 S.W.3d at 228-29; In re J.F.C., 96 S.W.3d at 263. We overrule issue one.
Issue Three: Sufficiency of Evidence of Best Interest
In her third issue, Alice complains that the evidence is insufficient to support
the trial court’s express findings, stated as: “. . . [t]he Court finds that the evidence
presented in this case rebutted the presumption that [Alice] should have a Standard
Possession Order, especially mid-week access, is not in the best interest of the
children, and would be injurious to their safety and welfare.”
The trial court may deviate from the standard possession order in
consideration of (1) the age, developmental status, circumstances, needs, and best
interest of the child; (2) the circumstances of the managing and possessory
conservators; and (3) any other relevant factor. See id. § 153.256. A trial court’s order
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that imposes restrictions or limitations on a parent’s right to possession of or access
to a child may not exceed terms that are required to protect the best interest of the
child. Id. § 153.193.
In determining the best interest of the children, the trial court could have
considered the following non-exhaustive factors: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individual seeking custody; (5) the programs available to assist the individual to
promote the best interest of the child; (6) the plans for the child by the individual
seeking custody; (7) the stability of the home; (8) the acts or omissions of the parent
that may indicate that the existing relationship is not a proper one; and (9) any
excuses for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).
We conclude there is ample evidence to support the trial court’s finding that
less than the standard possession order should be granted to Alice. In the first
instance, Dr. Zettel said that both boys suffer from attention deficit hyperactivity
disorder (ADHD), potential autism, with varying degrees of anxiety disorder, and
the younger boy’s case is more serious. He further testified that their conditions are
affected by the conflict that has occurred between the parents. He believes Alice’s
failure to understand the magnitude of the boy’s problems affects her ability to
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parent. Dr. Zettel considers both boys to have special needs that require the parents
to cooperate in maintaining medications and seeking necessary treatment. Dr. Zettel
concluded that “the parent that perceives a developmental delay that would be the
parent of choice to get help for that developmental delay.” There is sufficient
evidence as to the age, developmental status, circumstances, needs, and best interest
of the children to support the trial court’s finding on this issue and we will not
supplant our determination for that of the trial court. See In re J.R.D, 169 S.W.3d at
743.
Evidence raised questions as to both parent’s circumstances surrounding their
parenting skills and methods. As for Alice, Dr. Zettel noted his concerns about her
being truthful in reporting incidents and the children’s symptoms because of the
effects it could have on providing treatment for the children. Dr. Zettel noted that
Alice has also been diagnosed with ADHD, as well as depression, and he believes
those diagnoses affect her ability to adequately parent the children. Testimony from
M.M. and M.S., noted supra, showed Alice’s household in disarray, Alice smoking
and drinking alcohol (to the point of intoxication) around the children, and that at
times there was insufficient food for the children to eat. Although Fred was seen
drinking in the presence of the children, similar criticisms were not reported by any
witness about his household. We conclude that there is adequate evidence of the
circumstances of the managing and possessory conservators for the trial court to
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determine that the best interests of the children will be served by restricting Alice’s
possession of the children to less than the standard possession order. See id.
As to any other relevant factors, the trial court pronounced from the bench
that the court found that less than the expanded possession should be ordered:
THE COURT: I am finding that an SPO is not in the best interest of the
children and so this possession language should be per my rendition
and in places where I say SPO then that’s fine, but my intent is that the
children go home to their dad. That mom picks up from dad’s at 6:00
p.m. on Friday. And that mom returns to school on Monday under
normal circumstances.
COUNSEL FOR PLAINTIFF: So mom picks up from dad at 6:00 p.m.
on her Fridays?
THE COURT: Uh-huh.
COUNSEL FOR PLAINTIFF: Not from school?
THE COURT: And not from school. I mean, my rendition says mother
shall possess and access first, third, and fifth weekends beginning at
6:00 p.m. Oh, wait.
The trial court did not explain or expound on her reasoning and did not point to any
other relevant factors. Having heard more than a week of testimony, reviewed
hundreds of pages of records, and expert testimony from Dr. Zettel, Counselor
Burbank, and Dr. Neha Kansara (by deposition), the trial court considered a great
deal of evidence, noted above, as to the conditions of the children and parents and
the strengths and weaknesses of each parent and household. Again, we will not
substitute our judgment for that of the trial court which determined from all the
evidence that allowing Alice to be maintained as a managing conservator would be
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harmful to the emotional well-being of the children. The evidence supports the
finding that less than the standard possession order is in the best interest of the
children in this case at the time the order was issued. See id.
We overrule the third issue.
Issue Four: Error in Admission of Evidence
On appeal, complaints challenging a trial court’s evidentiary rulings are
reviewed under an abuse-of-discretion standard. See Horizon/CMS Healthcare
Corp., 34 S.W.3d at 906 (citing Malone, 972 S.W.2d at 43). And, even if the
appellant shows the trial court excluded evidence that should have been admitted,
the appellant must demonstrate not only error, but that the exclusion of the evidence
probably caused the factfinder to reach an improper verdict. See id. at 906-07
(discussing whether the trial court’s error in admitting evidence caused the jury to
reach an improper verdict); see also Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 883
(Tex. 2014) (requiring the complaining party to demonstrate in the appeal that the
judgment turned on the evidence that was made the subject of the appeal); Tex. R.
App. P. 44.1(a)(1) (requiring that a judgment not be reversed unless the error
probably caused the trial court to render an improper judgment). In evaluating
whether the exclusion of the evidence was harmful, we consider all the evidence that
was admitted during the trial in determining if the exclusion of any evidence caused
the factfinder to reach an improper verdict. Kia, 432 S.W.3d at 883.
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Alice complains that the trial court’s exclusion of almost all the
“OurFamilyWizard” messages probably caused the rendition of an improper verdict.
That evidentiary ruling, along with the trial court’s ruling restricting the opinions of
Counselor Burbank contributed to the rendition of an improper verdict, according to
Alice. She complains that the court erroneously excluded evidence that Fred’s
current wife had the home in which they were living go into foreclosure because that
evidence was relevant and material. Alice insists that the excluded evidence was
admissible regarding the issues of the stability of Fred’s home and the children’s best
interest.
The OurFamilyWizard Records
During the trial, Alice sought to have hundreds of pages (more than a ream)
of the OurFamilyWizard records admitted in support of her proposition that Fred did
not communicate well with Alice about issues involving the children. Alice also
offered some records she identified as from the Amen Clinic. Fred objected that the
records were hearsay and that the proper predicate had not been established. The trial
court sustained the objection based upon hearsay and improper predicate. In her
brief, Alice complains that the trial court denied admission of her exhibits R6, R79,
R5, and R5b. However, the record before us only contains exhibit R6 (which is six
pages of OurFamilyWizard records containing hearsay). Appellant has failed to
submit R79, R5, and R5b of the reporter’s record even though her complaints
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concern evidentiary rulings by the trial court which she says caused the rendition of
an improper judgment. Without these exhibits in the reporter’s record, we cannot
determine whether the trial court made any erroneous rulings on admission of
evidence. See Enter. Leasing Co. of Hou. v. Barrios, 156 S.W.3d 547, 549 (Tex.
2004) (per curiam); Christiansen v. Prezelski, 782 S.W.2d 842, 843-44 (Tex. 1990)
(stating burden is on appellant to present sufficient record to show error requiring
reversal); In re Marriage of Loehr, No. 10-19-00121-CV, 2020 Tex. App. LEXIS
6755, **2-3 (Tex. App.—Waco Aug. 21, 2020, no pet.) (mem. op.). Complaints
about the exclusion of exhibits R79, R5, and R5b are overruled.
Alice’s exhibit R6 consisted of six pages of records alleged to be records of
OurFamilyWizard communications between Alice, Fred, and Theresa Burbank
(Burbank was noted as having been copied). Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d). The
proponent of hearsay has the burden of showing that the testimony fits within an
exception to the general rule prohibiting the admission of hearsay evidence.
Adejokun v. Obosi, No. 14-25-00044-CV, 2026 Tex. App. LEXIS 4300, *6 (Tex.
App.—Houston [14th Dist.], May 7, 2026, pet. den.) (mem. op.).
The trial court’s decision to admit or exclude evidence is reviewed under an
abuse of discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial
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court abuses its discretion when it acts without regard to the guiding rules or
principles governing the admission of evidence, or if its decision to admit evidence
is shown to have been arbitrary or unreasonable. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A review of exhibit R6 shows
that it contained hearsay statements that Alice was attempting to have admitted
through the witness, Theresa Burbank, who was not a party to the litigation nor the
person who had made the statements. Alice did not provide the court with any
authority in support of her assertion that an exception to the hearsay rule applied.
We cannot say that the trial court abused its discretion by refusing the admission of
the hearsay statements. See Downer, 701 S.W.2d at 241-42.
The same objection was made when Alice attempted to admit records of a
foreclosure on the home of Fred’s wife. The documents contained hearsay and the
trial court questioned their relevance. We conclude the trial court did not abuse its
discretion by excluding the hundreds of pages of OurFamilyWizard communications
or the foreclosure records as those decisions were within the sound discretion of the
trial court. See Horizon/CMS Healthcare Corp., 34 S.W.3d at 906.
Testimony of Counselor Burbank
During the trial, Alice complained that she was not allowed to have Burbank
review OurFamilyWizard records, testify as to the contents, and offer an opinion as
to whether Fred was honest in his communications with Alice concerning the
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children and the school. The trial court sustained Fred’s objection that Alice was
attempting to introduce hearsay statements and the proper predicate had not been
established. Later in her testimony, Alice sought Burbank’s opinion as to what
impact the alleged sexual assault allegations against Fred had on the child involved.
The trial court sustained Fred’s objection based upon speculation and hearsay. Alice
recalled Burbank near the end of trial and asked her about statements Fred made on
a zoom call and through OurFamilyWizard. Fred objected based upon hearsay which
was sustained by the trial court. Alice continued to seek admission through Burbank
of three recorded conversations between Fred and the children to which Fred’s
hearsay objection was sustained. Burbank was not a party to the conversations, but
Alice contended that she heard the recordings and they were information upon which
Burbank based her opinions about Fred’s parenting skills.
Following the direction provided by Kia Motors Corp. v. Ruiz, we conclude
that Alice has failed to show that the judgment turned mainly on the evidence she
sought to admit. See 432 S.W.3d at 883. Dr. Zettel testified over two days of trial
about his custody evaluation. He explained many contingencies upon which it was
based, and considering the truth or falsity of allegations against both Alice and Fred,
the recommendation could go either way. Although some of Burbank’s opinions
were excluded, many, many more times her opinions were admitted, with or without
objections, and there was overwhelming testimony concerning Burbank’s
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conversations, counseling, and opinions concerning the parenting skills of Fred and
Alice many of which were included in the excluded OurFamilyWizard records.
Burbank had serious criticisms of both parents. There was a great deal of testimony
by the parties themselves, as well as Burbank, as to what was said in the
OurFamilyWizard records even though the bulk of the paper records were not
admitted. There was ample testimony about the counseling sessions Burbank had
with both parents, their spouses, and the children. Hospital records were admitted
and discussed as well as clinic records that were discussed at length. There was
evidence as to the parenting skills of both parents through several other witnesses
upon which the jury could have based its decision on in determining the best interests
of the child