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Given Wheeler’s failure to use any of the procedural tools available to her to challenge the admissions before judgment, the trial court did not abuse its discretion in granting Green summary judgment. Click here for the full text of this decision FACTS:On motion by Sandra Wheeler in January 2000, a trial court declared that Darrin Green was the father of Wheeler’s daughter and ordered Green to pay past and future child support. The order also named Wheeler and Green as joint managing conservators. Six months later, Green filed a motion to modify the parent-child relationship, saying Wheeler had not provided him information about the child’s asthma condition or medication. The trial signed an order predominately in Green’s favor. On July 30, 2001, Green filed a motion for enforcement and order to appear that alleged Wheeler had refused to turn their daughter over to him for visitation. Green also sought to modify the parent-child relationship by naming him as the sole managing conservator. Over the next 14 months, the trial court twice held Wheeler in contempt for failing to turn the child over to Green, twice signed writs of habeas corpus directing Wheeler to bring the child to court and twice issued writs of attachment ordering the sheriff to deliver the child to Green. Green sent Wheeler written interrogatories and requests for disclosure, admissions and the production of documents on Jan. 11, 2002, but Wheeler did not receive them until Jan. 19. She mailed her responses to the requests for admission on Feb. 15. Green moved for summary judgment on what he said were Wheeler’s deemed admissions due to her untimely responses. Wheeler did not respond to the motion, and the trial court granted it. Green was named sole managing conservator of the child. Acting as a pro se litigant, Wheeler filed a motion for a new trial, arguing her responses to the requests for admissions were timely. She says her responses were not due until Feb. 19, and hers were mailed on Feb. 15. The trial court denied the motion, and Wheeler appeals. HOLDING:Affirmed. The court first addresses Green’s argument that the appeal should be dismissed. He says the court’s order is interlocutory because the amount of child support Wheeler is to pay is not included. The court points out language in the order that indicates it is intended to settle all issues between the parties. If the child support amount was left blank, no other evidence exists to indicate the trial court anticipated awarding child support, then no support was intended and the order is a final, appealable judgment. Wheeler argues Erwin v. Erwin, 505 S.W.2d 370 (Tex.Civ.App. � Houston [14th Dist.] 1974, no writ), in which a trial court said the rules of civil procedure did not apply in a child custody when it contradicted the best interests of the child. The court points out that the court in that case was already in possession of independent findings of fact that should not have been ignored in the face of the technical requirements of the civil procedure rules. There are not such findings in this case, the court concludes. Plus, the case does not stand for the proposition that the rules of civil procedure can be ignored. “Wheeler failed to timely respond to the requests for admission, failed to seek an extension of time to respond, failed to move the court to withdraw her deemed admissions and failed to respond to Green’s motion for summary judgment based on the admissions. Given Wheeler’s failure to use any of the procedural tools available to her to challenge the admissions before judgment, the court concludes that the trial court did not abuse its discretion in granting Green summary judgment.” Finally, the court rules that the deemed admissions are legally sufficient evidence supporting modifying the conservatorship. Wheeler’s repeated refusals to work with Green or encourage a relationship between Green and the child constituted a material and substantial change in circumstances since the original custody determination. OPINION:Morris, J.; Morris, O’Neill and Lang, JJ.

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