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. 3 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 4 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 5 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 6 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, 7 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)). 8 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. 9 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 10 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. 11 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 13 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 14 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 16 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 17 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 18 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 19 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. 20 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 21 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 22 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 23 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 24 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