Full Opinion (html_with_citations)

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-22-00452-CV


                                   Blanca Abila, Appellant

                                               v.

                                    Ryan Miller, Appellee


               FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
        NO. CV40051, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING



                                        OPINION

               Appellant Blanca Abila appeals from the district court’s order granting appellee

Ryan Miller’s petition to modify an agreed order for conservatorship, possession, and support of

the parties’ child, R.B.M. (Reed). 1 In three issues on appeal, Abila contends that there is

insufficient evidence of a material or substantial change in circumstances, that there is

insufficient evidence that modification was in Reed’s best interest, and that Miller failed to

attach to his petition an affidavit alleging that Reed’s present environment may endanger his

physical health or significantly impair his emotional development, which is statutorily required

when a petition to modify is filed within one year of the previous order. See Tex. Fam. Code

§ 156.102.     We will reverse the district court’s order and render judgment denying

Miller’s petition.



       1
         For the child’s privacy, we refer to him using a pseudonym. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.9.
                                       BACKGROUND

               Abila gave birth to Reed on October 22, 2019. In February 2020, the district

court signed an agreed order establishing Miller as Reed’s father, naming Abila and Miller as

joint managing conservators of Reed, and appointing Abila as the conservator with certain

exclusive rights regarding Reed, including the exclusive right to designate Reed’s primary

residence. See id. § 153.132. The order specified that Miller was to have a modified possession

schedule, beginning with supervised possession on the first, third, and fifth Saturdays of each

month for 24 periods of possession, then changing to unsupervised possession on the first, third,

and fifth Saturday of each month for 51 periods of possession, and finally, possession under a

standard possession order.2 See id. §§ 153.3101–.3171. The order also provided Miller would

pay Abila child support in the amount of $610.00 per month.

               In June 2020, Miller filed a petition to modify the parent-child relationship,

requesting that he be granted possession of Reed under a standard possession order and that the

requirement of supervised visitation be removed. Following September and November 2020

hearings at which Abila did not appear, the district court signed temporary orders granting Miller

unsupervised periods of possession and a standard possession order.

               In July 2021, Miller filed an amended motion for enforcement and an amended

petition to modify, requesting that he be designated the conservator with the exclusive right to

designate Reed’s primary residence and that Abila be ordered to pay child support. At an

August 2021 hearing on enforcement, at which Abila did not appear, Miller testified that Abila


       2
          Each “period of possession” was a set number of hours on the first, third, and fifth
Saturday of each month. The first 49 periods of possession were from 1:00 p.m. to 5:00 p.m., the
next 13 periods of possession were from 8:00 a.m. to 5:00 p.m., and the next 13 periods were
from 6:00 p.m. Saturday to 6:00 p.m. Sunday.
                                                2
had failed to give Miller possession of Reed on several occasions when the court had ordered her

to do so. No other evidence was presented. The district court granted the motion to enforce,

issued a capias for Abila, and later had her arrested for failure to appear.

               In April 2022, the district court held a hearing on the petition to modify. Abila

had not filed a response to the petition and did not appear at the hearing. At the beginning of the

hearing, counsel for Miller announced, “I believe we are here on a default for modification suit at

this point so [I] could just make a statement at this time or, if you like, I can call my witness and

get started.” The district court told counsel, “Just make a statement, that’s fine.” Counsel stated,



       Okay. We are here for modifying orders. Our client has been denied access to
       this child several times to the point where there has been enforcement ordered,
       and I believe in the last month or so he has gotten a little bit of the time he was
       supposed to have, but he is still being denied access, at least once in the last
       month, and so we are asking to modify the order for him to be primary and have
       time with his kid and he has more of ability to make the coparenting work and
       that’s what we are asking for today.


The district court then made its ruling: “All right. Very well. I’m going to grant the relief

sought at this time and sign your order. Also there is an order terminating child support which I

will sign. All right, anything else today?” Counsel replied, “I believe, let me see, I believe that’s

it. I believe that’s the only two orders we are looking for today so that will do it.” The hearing

concluded without the admission of any testimony or other evidence.

               The district court’s order granting Miller’s petition to modify gave Miller the

exclusive right to designate Reed’s primary residence and other decision-making rights, gave

Abila a standard possession order with expanded visitation, and ordered Abila to pay child




                                                  3
support to Miller in the amount of $228.56 per month. Abila filed a motion for new trial that the

district court denied. This appeal followed. 3


                    STANDARD OF REVIEW AND APPLICABLE LAW

               We review the trial court’s modification order for a clear abuse of discretion.

Worford v. Stamper,
801 S.W.2d 108, 109
 (Tex. 1990); Zeifman,
212 S.W.3d 582, 587
 (Tex.

App.–Austin 2006, pet. denied). The test for an abuse of discretion “is whether the trial court

acted without reference to any guiding rules or principles; in other words, whether the act was

arbitrary or unreasonable.”     Worford,
801 S.W.2d at 109
 (citing Downer v. Aquamarine

Operators, Inc.,
701 S.W.2d 238
, 241–42 (Tex. 1985)). “To determine whether the trial court

abused its discretion, we consider whether the trial court had sufficient evidence upon which to

exercise its discretion and whether it erred in its exercise of that discretion.” In re W.C.B.,
337 S.W.3d 510, 513
 (Tex. App.—Dallas 2011, no pet.).

               Under this standard, sufficiency of the evidence is not an independent ground of

error but is a factor in determining whether the trial court abused its discretion. Zeifman,
212 S.W.3d at 587
. When conducting a legal-sufficiency review, we consider the evidence in

the light most favorable to the challenged finding and indulge every reasonable inference that

would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822, 827
 (Tex. 2005). To prevail,

an appellant must show that no more than a scintilla of evidence supports a finding on which the

opponent had the burden of proof. See Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill,

Inc.,
434 S.W.3d 142
, 156–57 (Tex. 2014); City of Keller,
168 S.W.3d at 826
. More than a


       3
          After Abila filed her notice of appeal, she filed a motion for temporary orders with the
district court, requesting that the district court stay its modification order pending appeal.
Following a hearing, the district court denied that motion.
                                                 4
scintilla of evidence exists to support a finding when the evidence enables reasonable and

fair-minded people to differ in their conclusions. Gharda USA, Inc. v. Control Sols., Inc.,
464 S.W.3d 338, 347
 (Tex. 2015). When conducting a factual-sufficiency review, we consider

all the record evidence and set aside the trial court’s order only if the evidence is so weak as to

make the order clearly wrong and manifestly unjust. See Cain v. Bain,
709 S.W.2d 175, 176

(Tex. 1986). We defer to the fact finder’s implicit determinations of credibility and weight to be

given to the evidence. See Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761

(Tex. 2003).

               A trial court can modify the terms of a conservatorship order if (1) the child’s or

parties’ circumstances have materially and substantially changed since the order was rendered

and (2) doing so would be in the child’s best interest. Tex. Fam. Code § 156.101(a)(1). The

party seeking modification has the burden to establish these elements by a preponderance of the

evidence. Zeifman,
212 S.W.3d at 589
.

               In modification proceedings, this burden of proof applies even when the

non-moving party defaults. See Giron v. Gonzalez,
247 S.W.3d 302, 308
 (Tex. App.—El Paso

2007, no pet.); Agraz v. Carnley,
143 S.W.3d 547, 552
 (Tex. App.—Dallas 2004, no pet.);

Considine v. Considine,
726 S.W.2d 253, 254
 (Tex. App.—Austin 1987, no writ); Armstrong

v. Armstrong,
601 S.W.2d 724, 726
 (Tex. App.—Beaumont 1980, writ ref’d n.r.e.). Although

this rule has been applied primarily in divorce proceedings, see Tex. Fam. Code § 6.701 (“In a

suit for divorce, the petition may not be taken as confessed if the respondent does not file an

answer.”), we conclude that it applies to conservatorship modifications even in the absence of

divorce, see Considine,
726 S.W.2d at 254
 (“Reason suggests . . . that the same policy

considerations . . . applicable to original divorce judgments appointing conservators and setting

                                                5
support for and access to children, should also obtain in [conservatorship-modification]

proceedings to modify like provisions in prior orders.”). We reach this conclusion because

“when the custody of a child is at issue, technical rules of practice and pleading are not

necessarily controlling.” Davis v. Ross,
678 S.W.2d 636, 638
 (Tex. App.—Houston [14th Dist.]

1984, no writ) (citing Armstrong,
601 S.W.2d at 726
). “Rather, the paramount concern is the

best interest of the child,”
id.,
 and the best interest of the child is proven with evidence rather

than allegations, see Armstrong,
601 S.W.2d at 726
; see also Considine,
726 S.W.2d at 254

(explaining that requirement of modification hearing “implies the admission and consideration of

proof—the opposite of taking allegations of the motion for modification ‘as confessed for want

of an answer.’”).      Thus, we hold that whenever a petitioner seeks modification of a

child-conservatorship order, “in a case of default by the respondent, the movant must prove up

the required allegations of the motion to modify.” Considine,
726 S.W.2d at 254
; see also In re

J.M.M.,
549 S.W.3d 293, 296-97
 (Tex. App.—El Paso 2018, no pet.) (“In a default proceeding

pertaining to issues of conservatorship of a child, or the possession of or access to a child, the

party seeking relief must prove up the required allegations of the suit by a preponderance of the

evidence.”); Williams v. Williams,
150 S.W.3d 436, 448
 (Tex. App.—Austin 2004, pet. denied)

(“We recognize that the parent’s failure to respond may affect the trial court’s consideration of

the issues in the case, but it should not form the sole basis for the trial court’s judgment.”).

               “In a conservatorship modification action, a threshold inquiry of the trial court is

whether the moving party has met the burden imposed upon him of showing a material and

substantial change; otherwise the trial court must deny the motion to modify.”                Zeifman,
212 S.W.3d at 589
.      “To prove that a material change in circumstances has occurred, the

petitioner must demonstrate what conditions existed at the time of the entry of the prior order as

                                                  6
compared to the circumstances existing at the time of the hearing on the motion to modify.”
Id.

(citing Agraz,
143 S.W.3d at 554
; Considine,
726 S.W.2d at 255
). In other words, the petitioner

must show what material changes have occurred in the intervening period.
Id.
 “Although courts

have allowed changes to be proved in a variety of ways, they have consistently required that a

change be proved and that it be shown to be substantial and material.” Id. at 593. “The policy

behind the requirement of a material and substantial change is to prevent constant relitigation

with respect to children.” Id. at 595. “The requirement of this showing ‘serves a valid purpose

of significantly limiting the trial judge’s discretion and prevents the modification statute from

being unconstitutionally broad.’” Id. (quoting In re M.N.G.,
113 S.W.3d 27, 33
 (Tex. App.—

Fort Worth 2003, no pet.)).

               The movant must additionally show that the proposed modification is in the

child’s best interest, which “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 § 153.002. In determining whether such a showing has been made, courts should consider

the non-exhaustive list of factors discussed in Holley v. Adams, which include the desires of the

child, the emotional and physical needs of the child now and in the future, the emotional and

physical danger to the child now and in the future, the parental abilities of the individuals

seeking custody, the programs available to assist these individuals to promote the best interest of

the child, the plans for the child, the stability of the home, the acts or omissions of the parent that

may indicate that the existing parent-child relationship is not a proper one, and any excuse for

the acts or omissions of the parent.
544 S.W.2d 367, 371-72
 (Tex. 1976).




                                                  7
                                         DISCUSSION

               In her first and second issues, Abila contends that the district court abused its

discretion in granting the petition to modify because Miller failed to prove either a material and

substantial change in circumstances since the original order or that modification of that order was

in Reed’s best interest. We agree. At the hearing on his petition to modify, Miller, who had the

burden of proof at the hearing, presented no evidence as to what circumstances existed at the

time of the prior order or how those circumstances had materially or substantially changed.

Miller also presented no evidence as to how naming him the conservator with the exclusive right

to designate Reed’s primary residence would be in Reed’s best interest.          He provided no

evidence regarding any of the Holley factors summarized above, such as the parental abilities of

Abila and Miller, their respective plans for the child, the stability of their homes, or any other

considerations that might be relevant to the best-interest inquiry. In fact, the district court

admitted no evidence at all at the modification hearing. Instead, the district court allowed

Miller’s counsel to make a statement, and counsel argued in his statement that Abila had denied

Miller access to Reed. However, arguments of counsel are not evidence. See Grant v. Espiritu,
470 S.W.3d 198, 203
 (Tex. App.—El Paso 2015, no pet.); Texas Dep’t of Pub. Safety

v. Mendoza,
952 S.W.2d 560, 564
 (Tex. App.—San Antonio 1997, no pet.). Furthermore, even

if we were to consider the amended modification petition (or even the original motion to modify)

as “evidence,” there are no facts in the petition itself that could be sufficient to support either

factual finding. Instead, the petition contains nothing but blanket conclusory assertions that do

not rise to the level of “facts.” Thus, there was no evidence presented at the hearing from which

the district court could have found that Reed’s or the parties’ circumstances had materially and



                                                8
substantially changed since the previous order was rendered or that modification of that previous

order would be in Reed’s best interest.

               Miller argues on appeal that even though no evidence was presented at the

modification hearing, Abila had a history of not appearing at the hearings in the case, and there

was evidence presented at those hearings that Abila had violated the district court’s earlier orders

by denying Miller possession of Reed.         According to Miller, this history of default and

noncompliance by Abila was sufficient to support modification of the order, and the district court

“was not required to ignore its own records and hearings and the previous actions of [Abila]” in

concluding that she was no longer an appropriate primary conservator for Reed.

               On the one hand, it is well established that “a court may take judicial notice of its

own records.” Tschirhart v. Tschirhart,
876 S.W.2d 507, 508
 (Tex. App.—Austin 1994, no pet.).

“However, judicial notice usually is limited to matters that are generally known or easily proven

and that cannot reasonably be disputed.”
Id.
 For example, a court may take judicial notice that a

pleading has been filed in the case or of the law of another jurisdiction.
Id.
 On the other hand,

“a court may not [] take judicial notice of the truth of allegations in its records.”
Id.
 Thus, “the

trial court may not take judicial notice of the truth of factual statements and allegations contained

in the pleadings, affidavits, or other documents in the file.” Guyton v. Monteau,
332 S.W.3d 687, 693
 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Similarly, “[i]t is inappropriate for a trial

judge to take judicial notice of testimony” from prior proceedings in the same case.
Id.
 “In

order for testimony from a prior hearing or trial to be considered in a subsequent proceeding, the

transcript of that testimony must be properly authenticated and entered into evidence.”
Id.

“When evidence is the subject of improper judicial notice, it amounts to no evidence.”
Id.



                                                 9
                To the extent the district court took judicial notice of what occurred in this case

before the modification hearing,4 it could do so only of facts that could not reasonably be

disputed, such as Abila’s failure to appear at the previous hearings. The district court could not

take judicial notice of the truth of Miller’s allegations that Abila had denied him access to Reed,

nor could it take judicial notice of Miller’s testimony at prior hearings in the case that Abila had

denied him access. As for Abila’s failure to appear at the hearings, that fact does not, without

more, prove either a material and substantial change in circumstances or that modification is in

Reed’s best interest, nor does it relieve Miller of his burden of proof on those issues. See Giron,
247 S.W.3d at 308
; Agraz,
143 S.W.3d at 552
; Considine,
726 S.W.2d at 254
. Miller failed to

meet that burden here. On this record, we conclude that there is insufficient evidence of a

material or substantial change in circumstances and that modification was in Reed’s best interest.

Accordingly, we conclude that the district court abused its discretion in modifying its

conservatorship order.

                We sustain Abila’s first and second issues on appeal. We need not consider her

third issue regarding Miller’s failure to attach an affidavit to his petition to modify. 5 See Tex. R.

App. P. 47.1.


       4
           Although there is no indication in the record that the district court took judicial notice
here, “a trial court is presumed to have taken notice of its own records in a case because ‘[a] trial
judge judicially knows what has previously taken place in the case on trial.’” Asplundh Tree
Expert Co. v. Abshire,
517 S.W.3d 320
, 344 n.13 (Tex. App.—Austin 2017, no pet.) (quoting
Estate of Hoskins,
501 S.W.3d 295, 310
 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.)).
       5
          Section 156.102 of the Family Code provides that if, within one year of the order to be
modified, a person files a suit to modify the designation of the person having the exclusive right
to designate the primary residence of the child, the person filing suit shall execute and attach an
affidavit containing at least one of three allegations regarding the need for the modification,
along with supporting facts. See Tex. Fam. Code § 156.102(a)–(b); In re J.B.J.,
649 S.W.3d 828
,
829 (Tex. App.—Waco 2022, no pet.). “The court shall deny the relief sought and refuse to
                                                 10
                                          CONCLUSION

               We reverse the district court’s modification order and render judgment denying

Miller’s petition.



                                               __________________________________________
                                               Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Reversed and Rendered

Filed: December 21, 2023




schedule a hearing for modification under this section unless the court determines, on the basis of
the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the
affidavit.” Tex. Fam. Code § 156.102(c). Neither Miller’s original nor his amended petition
included any such affidavit. Miller contends that the requirements of section 156.102 do not
apply in this case because his amended petition was filed more than a year after the
conservatorship order. We need not decide whether section 156.102 applies here because Miller
failed to meet his evidentiary burdens under section 156.101 regarding a material or substantial
change in circumstances and the best interest of a child, and that section’s requirements apply
regardless of the date the petition is filed. See Tex. Fam. Code § 156.101.
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