Full Opinion (html_with_citations)

Reversed and Remanded and Memorandum Opinion filed December 19, 2023.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-22-00949-CV

                    IN THE INTEREST OF B.L.S., A CHILD


                    On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2019-79922

                          MEMORANDUM OPINION

      This is an appeal from a final order in a suit affecting the parent-child
relationship. Tex. Fam. Code § 109.002. The father challenges the trial court’s
rulings regarding (1) removal of a geographic restriction on the child’s primary
residence, and (2) the parents’ respective rights and duties concerning the minor
child. Concluding the trial court abused its discretion in not ordering a geographic
restriction on the child’s primary residence, and ordering that certain parental rights
be exclusive to one parent, we reverse and remand for further proceedings.
                                   BACKGROUND

      The parties to this appeal, K.J.S. (Father) and L.N.W. (Mother) have one child,
B.L.S. (the Child), who was eight years old at the time of trial. The parties never
married, but lived together until the Child was two years old. After the parties
separated, the Child lived with Mother.

      On November 1, 2019, Father filed an original petition in suit affecting the
parent-child relationship seeking appointment as joint managing conservator with
Mother. Father further sought to be designated as the conservator who had the
exclusive right to designate the primary residence of the Child and requested that the
Child’s primary residence be restricted to certain counties. The parties entered into
a mediated settlement agreement for temporary orders. Among other things, the
temporary orders: (1) appointed the parents joint managing conservators; (2)
designated Mother as the parent with the exclusive right to designate the primary
residence of the Child within Fannin County and contiguous counties; and (3) gave
each parent rights, subject to agreement of the other parent, to consent to medical,
dental, and surgical care, psychiatric and psychological treatment, and education.
The temporary orders also allowed the parents to share visitation, each keeping the
Child on alternating weeks.

      After Mother moved to Collin County with the Child, Father subsequently
amended his petition asserting that the primary residence of the Child should be
restricted to Collin County and contiguous counties. Father further sought
designation as the parent with the exclusive right to enroll the Child in school.
Mother filed a counter-petition in which she sought designation as the conservator
with the exclusive right to designate the primary residence of the Child.

      At a bench trial Father testified that after he and Mother separated Mother
moved from Austin to Houston and took the Child with her. In 2018, Father moved
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from Austin to Bastrop, Texas to be closer to the Child. Father was contemplating
moving to Tomball, even closer to Houston, when he learned that Mother planned
to move to Wolfe City, Texas, located approximately one hour northeast of Dallas.
Father moved again to be closer to the Child, who lived with Mother in Fannin
County. Father maintained what he described as a “50/50 possession schedule.” At
the time of trial Father had sold his house that was approximately a 30-minute drive
from the Child’s school and planned to purchase a house within a 10- to 15-minute
drive of the Child’s school.

      Mother testified that the 50/50 possession schedule with the parents
alternating weeks was not workable because Father lived 30 minutes from the
school. Mother frequently picked up the Child from school during Father’s week of
possession to avoid the Child having to spend too much time traveling between
school, Father’s home, and sports practice after school. On these weeks, Mother
would meet Father at sports practice and Father would drive the Child to his home
after practice. Mother testified she separated from Father because he was verbally
abusive and their “living situation” was hostile. Mother testified that Father threw
objects at her when he was angry and threatened her in front of the Child.

      Both parents testified that the Child had been diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD), which contributed to behavioral issues. The
parents worked together to have the Child diagnosed and placed on medication.
Mother enrolled the Child in Medicaid despite Father’s offer to enroll the Child in
Father’s health insurance plan. Mother explained that Father’s health insurance
required a 50-dollar co-pay for medication, which Mother could not afford. Father
had been paying one hundred percent of uninsured medical expenses, but testified
he would be unable to continue to do so long term.

      Mother requested expanded possession for Father but did not want to continue

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the 50/50 possession schedule. Mother asked to be designated the conservator with
the exclusive right to designate the Child’s residence. Mother agreed that she and
Father could make joint decisions about medical care and education while allowing
the physician and the school counselor to act as “tiebreakers.”

      After taking the case under advisement and hearing Father’s motion to
reconsider, the trial court signed an order in which the court named both parents as
joint managing conservators, and ordered, inter alia, the following rights and duties
to Mother:

         • the exclusive right to designate the primary residence of the
           Child without regard to geographic location;
         • the exclusive right to consent to medical, dental, and surgical
           treatment involving invasive procedures;
         • the exclusive right to consent to psychiatric and psychological
           treatment of the Child; and
         • the exclusive right to make decisions concerning the Child’s
           education.

      After signing the final order, the trial court signed findings of fact and
conclusions of law. As pertinent to this appeal, the trial court signed the following
conclusions of law:

         • It is in the best interest of the child that [Father] and [Mother] be
           appointed joint managing conservators of the child and that
           [Mother] have the exclusive right to designate the child’s
           primary residence.
         • It is in the best interest of the child that [Mother’s] right to
           designate the primary residence of the child be subject to a
           geographic restriction of Collin County and the contiguous
           counties.
         • It is in the best interest of the child that [Mother] and [Father]
           share the right, subject to the agreement of the other parent
           conservator, to consent to medical, dental, and surgical treatment

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             involving invasive procedures.
          • It is in the best interest of the child that [Mother] have the
            independent right to consent to psychological and psychiatric
            treatment of the child with seven (7) days written notice to the
            other parent conservator.
          • [Father] is entitled to periods of possession with [the Child]
            pursuant to the Standard Possession Order.
      Father filed a motion to reconsider in the trial court in which he asked the
court to reconsider placing a geographic restriction on Mother’s exclusive right to
designate the primary residence of the Child. Father further asked the trial court to
reconsider designating Mother as the parent with the exclusive right to make medical
and educational decisions. The trial court’s final order impliedly overruled Father’s
motion to reconsider. Father appealed the trial court’s final order.

                                      ANALYSIS

      In two issues Father asserts the trial court abused its discretion when it
awarded Mother (1) the exclusive right to designate the Child’s primary residence
without imposing a geographic restriction and (2) exclusive rights to consent to
medical, dental, and surgical treatment; psychiatric and psychological treatment; and
educational decisions. Mother did not file a responsive brief on appeal.

I.    Standard of Review and Applicable Law

      We review a trial court’s decisions concerning conservatorship under an abuse
of discretion standard. In re J.A.J.,
243 S.W.3d 611, 616
 (Tex. 2007); Cox v. Cox,
No. 14-22-00853-CV,
2023 WL 6561106
, at *4 (Tex. App.—Houston [14th Dist.]
Oct. 10, 2023, no pet.) (mem. op.). Generally, the test for abuse of discretion is
whether the trial court acted arbitrarily or unreasonably, or whether it acted without
reference to any guiding rules or principles. See Downer v. Aquamarine Operators,
Inc.,
701 S.W.2d 238, 242
 (Tex. 1985). When a party asserts that the trial court

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abused its discretion due to a lack of evidence, however, we engage in a two-pronged
inquiry to determine whether the trial court (1) had sufficient information on which
to exercise its discretion and (2) erred in its application of discretion. See Swaab v.
Swaab,
282 S.W.3d 519
, 524–25 (Tex. App.—Houston [14th Dist.] 2008, pet.
dism’d w.o.j.). Thus, there is ordinarily no abuse of discretion when some evidence
of a substantive and probative character exists to support the trial court’s decision.
In re J.H., No. 14-23-00018-CV,
2023 WL 4248759
, at *3 (Tex. App.—Houston
[14th Dist.] June 29, 2023, no pet.) (mem. op.).

      When, as here, a trial court makes specific findings of fact and conclusions of
law following a bench trial and a reporter’s record is before the appellate court, the
findings will be sustained if there is evidence to support them, and the appellate court
will review the legal conclusions drawn from the facts found to determine their
correctness. Trelltex, Inc. v. Intecx, L.L.C.,
494 S.W.3d 781, 789
 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). Findings of fact have the same force and dignity
as a jury’s verdict and are reviewable under the same standards of legal and factual
sufficiency. Foley v. Capital One Bank, N.A.,
383 S.W.3d 644, 646
 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); In re Y.E., No. 14-20-00608-CV,
2022 WL 364074
, at *4 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.) (mem. op.).

II.   Neither Mother’s pleadings, nor the evidence, supports the trial court’s
      order that Mother have the exclusive right to designate the Child’s
      residence without a geographical restriction.

      In Father’s first issue he asserts the trial court’s order designating Mother the
primary custodial parent without a geographic restriction is contrary to the trial
court’s findings of fact, not supported by the evidence, not supported by Mother’s
pleadings, and against public policy.

      The temporary orders in place before trial required a geographic restriction of


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Fannin County and contiguous counties. The parties agreed to this geographic
restriction. In Father’s live pleading he sought the exclusive right to designate the
primary residence of the Child within Collin County and Fannin County.1 In
Mother’s pleading she sought designation as the conservator who has the exclusive
right to designate the primary residence of the Child. Mother’s pleading did not
request primary custody without a geographic restriction; therefore, the final order
did not conform to the pleadings. See Flowers v. Flowers,
407 S.W.3d 452, 458
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (pleading lacking request of
modification to geographic restriction did not support final order removing
geographic restriction).

      Pleadings must give reasonable notice of the claims asserted. SmithKline
Beecham Corp. v. Doe,
903 S.W.2d 347
, 354–55 (Tex. 1995). As a reviewing court,
we are to liberally construe the petition to contain any claims that reasonably may
be inferred from the specific language used in the petition and uphold the petition as
to those claims, even if an element of a claim is not specifically alleged. See
id.
 In
making this determination, however, we cannot use a liberal construction of the
petition as a license to read into the petition a claim that it does not contain.
Moneyhon v. Moneyhon,
278 S.W.3d 874, 878
 (Tex. App.—Houston [14th Dist.]
2009, no pet.). The petition must give fair and adequate notice of the claims being
asserted, and if we cannot reasonably infer that the petition contains a given claim,
then we must conclude the petition does not contain the claim. See SmithKline
Beecham Corp., 903 S.W.2d at 354–55. A final order not supported by the pleadings
is erroneous. Cunningham v. Parkdale Bank,
660 S.W.2d 810, 813
 (Tex. 1983).

      In her petition Mother did not request that there be no geographic restriction


      1
          Collin and Fannin counties are contiguous.

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on her exclusive right to determine the Child’s primary residence. In the trial court’s
findings of fact, it stated, “[Mother] requested that the geographic restriction set forth
in the temporary orders continue after final trial.” Mother did not challenge the trial
court’s findings of fact. As stated above, the temporary orders required a geographic
restriction. Therefore, the final order did not conform to the pleadings, and the trial
court erred in granting such relief unless the issue was tried by consent. See Tex. R.
Civ. P. 301.

      If issues not raised by the pleadings are tried by express or implied consent of
the parties, these issues will be treated as if they had been raised by the pleadings.
See Baltzer v. Medina,
240 S.W.3d 469, 475
 (Tex. App.—Houston [14th Dist.] 2007,
no pet.). Trial by consent “can cure lack of pleading, but an issue is not tried by
consent merely because evidence regarding it is admitted.” Bos v. Smith,
556 S.W.3d 293
, 306–07 (Tex. 2018). To determine whether an issue was tried by consent, the
court must examine the entire record not for evidence of the issue, but rather for
evidence of trial of the issue.
Id. at 307
. A party consents to trial of an unpleaded
issue when evidence on the issue is developed under circumstances indicating that
both parties understood what the issue was in the case, and the other party failed to
make an appropriate complaint. See Ingram v. Deere,
288 S.W.3d 886, 893
 (Tex.
2009).

      The record does not reflect that the geographic-restriction issue was tried by
consent. Evidence at trial focused on Mother’s desire to move to a rural community
with her partner and Father’s 30-minute commute to the Child’s school. Father
testified that his house was on the market, and he planned to move closer to the
Child’s residence and school. There was no evidence that removal of the geographic
restriction was required or even desired by either party. We conclude the trial court
abused its discretion in removing the geographic restriction on Mother’s exclusive

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right to determine the Child’s primary residence because Mother did not request this
relief in her petition and the geographic-restriction issue was not tried by consent.

      The record further reflects no evidence on removal of the geographic
restriction put in place by the temporary orders. In considering whether a geographic
restriction is in the best interest of the child, the Texas Supreme Court suggested
consideration of the following factors: (1) the reasons for and against a prospective
move, including the parents’ good faith motives in requesting or opposing it; (2)
health, education, and leisure opportunities afforded by the prospective move; (3)
the degree of economic, emotional, and educational enhancement for the custodial
parent and child; (4) the effect on extended family relationships; (5) accommodation
of the child’s special needs or talents; (6) the effect on visitation and communication
with the non-custodial parent to maintain a full and continuous relationship with the
child; (7) the possibility of a visitation schedule allowing the continuation of a
meaningful relationship between the non-custodial parent and child; and (8) the
ability of the non-custodial parent to relocate. Lenz v. Lenz,
79 S.W.3d 10
, 15–16
(Tex. 2002).

      In this case, the trial court heard extensive evidence about the Child living in
the rural community of Wolfe City and Father’s efforts to move closer to the Child’s
school. There was no evidence that Mother intended to move the Child away from
Wolfe City, or of any prospective move by either parent other than Father’s
prospective move to be closer to the Child. Mother testified about the difficulties of
sharing conservatorship with only a 30-minute distance between Father and the
Child’s school. If Mother were to again move the Child, such a move would have an
effect on Father’s ability to visit and communicate with the child and continue any
meaningful relationship. Other than Father’s attempt to move closer to the Child’s
school there was no evidence of the parents initiating a request to relocate at the time

                                           9
of the final hearing or in the future. Based on the evidence presented and the
pleadings of the parties, we conclude the trial court abused its discretion in removing
the geographic restriction put in place by the temporary orders. We sustain Father’s
first issue.

III.   The trial court abused its discretion when it ordered that Mother had the
       exclusive rights to consent to medical, dental, and surgical treatment, the
       exclusive right to consent to psychiatric and psychological treatment, and
       the exclusive right to make educational decisions regarding the Child.

       In Father’s second issue he asserts the trial court abused its discretion when it
ordered that Mother had the exclusive rights to consent to medical, dental, surgical,
psychiatric, and psychological treatment; and that Mother had the exclusive right to
make educational decisions regarding the Child.

       When parents are named joint managing conservators, the trial court must
allocate parental rights and duties to be exercised independently, jointly, or
exclusively. Tex. Fam. Code § 153.071. Section 153.134(b) requires an order
naming joint managing conservators to allocate rights and responsibilities of the
parents and to include provisions to minimize disruption of the child’s education,
daily routine, and association with friends. Tex. Fam. Code § 153.134(b). Mother
made no request for these exclusive rights in her petition. Nonetheless, in its final
order, the trial court awarded Mother these exclusive rights. Therefore, the final
order did not conform to the pleadings, and the trial court erred in granting such
relief unless the issue was tried by consent. See Tex. R. Civ. P. 301; Flowers,
407 S.W.3d at 458
.

       The record does not reflect that these issues were tried by consent. In fact, the
record reflects the opposite. Mother did not seek the exclusive rights to make these
decisions on behalf of the Child. Mother testified that she and Father could make
joint decisions about medical care and education while allowing the physician and

                                           10
the school counselor to act as “tiebreakers.” There was no testimony by Mother or
request in her pleadings that she receive exclusive rights to make medical and
educational decisions on behalf of the Child. Accordingly, we sustain Father’s
second issue.

IV.    Father did not present evidence of attorney’s fees.

       Although Father did not assign an issue requesting attorney’s fees, in his
prayer for relief on appeal, Father requests that Mother pay his attorney’s fees. Father
represented himself at the final hearing and did not present evidence of attorney’s
fees incurred before his attorney withdrew from representation.2

       Trial courts have broad discretion to award attorney’s fees in suits affecting
the parent-child relationship. See Tex. Fam. Code § 106.002(a); Lenz,
79 S.W.3d at 21
. However, an award of attorney’s fees must be supported by evidence that the
fees are reasonable and necessary. See Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1, 10
 (Tex. 1991); In re K.A.M.S.,
583 S.W.3d 335
, 349 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). Because Father presented no evidence of
attorney’s fees, we conclude he is not entitled to such fees.

                                          CONCLUSION

       The trial court abused its discretion in not placing a geographic restriction on
Mother’s exclusive right to determine the Child’s primary residence and by
awarding Mother the exclusive rights to consent to medical, dental, and surgical
treatment involving invasive procedures, to consent to psychiatric or psychological
treatment for the Child, and to make educational decisions for the Child.
Accordingly, we reverse the trial court’s final order, and remand to the trial court


       2
           An attorney filed the original petition on Father’s behalf but withdrew before the final
hearing.

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with instructions for the trial court to render a new order that is the same as the prior
order except that, in the new order: (1) Mother’s exclusive right to determine the
Child’s primary residence is subject to the geographic restriction of Collin County
and contiguous counties; (2) Mother and Father share the right to consent to
psychiatric and psychological treatment of the Child; (3) Mother and Father share
the right to consent to medical, dental, and surgical treatment involving invasive
procedures; and (3) Mother and Father share the right to make decisions concerning
the Child’s education. The trial court shall further render an order that: (1) in the
event of a dispute between the parents on psychiatric, psychological, medical, dental,
or surgical treatments, the preferred course of action recommended by the Child’s
primary physician shall be followed; and (2) in the event of a dispute between the
parents on educational decisions, the preferred course of action recommended by the
Child’s school counselor shall be followed.


                                         /s/    Jerry Zimmerer
                                                Justice



Panel consists of Justices Bourliot, Zimmerer, and Spain.




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