X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Trudie Lynne Baltzer (Lynne) and Larry Medina were divorced after 11 years of marriage. Under the original divorce decree, Lynne and Larry were named joint managing conservators of their two children. As to the parties’ child S.M., Lynne was given the following exclusive rights and duties: 1. the right to establish his primary residence; and 2. the right to consent to medical, dental and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment. Lynne and Larry remarried. After his parents’ divorce and following his mother’s remarriage, S.M. lived with his mother, stepfather and stepsiblings in Katy. On Feb. 28, 2005, S.M. went to visit a friend in the neighborhood. During this visit, the Harris County Constable’s Office was contacted, because S.M. allegedly told his friend and his friend’s parents that his “step-dad had been hitting him.” The constable contacted both Lynne and Larry, telling Larry that he could take possession of S.M., but that the child could not return home. Lynne stated that her husband had not hit S.M. on that night. She explained that S.M. “was a little bit upset with us the night he left,” and she felt as though S.M. was making the allegations so that he could live with his father, whom Lynne stated was more lenient. Soon after this incident, on March 4, 2005, Larry filed a petition to modify the parent-child relationship and requested that he be given the following exclusive rights: 1. the right to establish the primary residence of S.M.; and 2. the right to make decisions concerning S.M.’s education. Larry also asked the court to limit Lynne to only supervised visitation with the child. The trial court appointed an amicus attorney under Chapter 107 of the Texas Family Code. On Aug. 2, 2005, the trial court issued a temporary order that both parties remain as joint managing conservators but named Larry as the conservator with the temporary exclusive right to determine S.M.’s primary residence. The trial court also gave Larry the temporary exclusive right to make educational decisions for the child. About six weeks later, the trial court conducted a bench trial. Lynne, who appeared pro se, made several requests for a continuance, which were denied. Larry and Lynne testified. S.M. did not testify, but the trial court admitted into evidence a document signed by S.M., in which S.M. stated that he preferred that Larry have the exclusive right to determine his primary residence. The trial court signed a final order finding that “the material allegations in the petition to modify are true and a material and substantial change has occurred since the last order and the requested modification is in the best interest of the child.” The court then signed an order: 1. removing Lynne as joint managing conservator of S.M.; 2. appointing Larry as sole managing conservator of S.M.; and 3. appointing Lynne as possessory conservator of S.M. The order gave Larry the exclusive right t 1. designate the primary residence of S.M.; 2. consent to medical, dental and surgical treatment involving invasive procedures and to consent to psychiatric and psychological treatment of S.M.; and 3. make decisions concerning S.M.’s education. The trial court also found that credible evidence had been presented that Lynne had “a history or pattern of physical abuse and/or neglect directed against S.M.” The trial court therefore ordered that all visitation between Lynne and S.M. be supervised under the Harris County “SAFE Program.” The trial court assessed, as “child support,” $12,322.28 in attorneys’ fees in favor of Larry and against Lynne. Additionally, the trial court assessed as “child support” $7,143.75 in attorneys’ fees in favor of the amicus attorney and against Larry. The trial court also ordered Lynne to reimburse Larry for the amount of $7,143.75 in attorneys’ fees paid to the amicus attorney. Finally, the trial court ordered Lynne to pay retroactive child support to Larry in the amount of $1,200. HOLDING:Reversed and remanded. In her first issue, Lynne contended that the trial court reversibly erred by failing to file findings of fact and conclusions of law. Lynne timely requested findings of fact and conclusions of law after the trial court signed its order modifying the parent-child relationship and awarding attorneys’ fees as child support. The trial court never made any findings or conclusions. A trial court, the court stated, must file written findings of fact and conclusions of law when timely requested by a party. The trial court’s failure to respond to a timely request constitutes error and is presumed harmful unless the record affirmatively shows that the complaining party has suffered no harm. Although the trial court did not set forth findings in a separate document, the court noted that the trial court erroneously included findings in its order modifying the parent-child relationship. These findings have probative value as long as they do not conflict with those in a separate document, the court stated. In its final order, signed on Sept. 27, 2005, the trial court found, inter alia, that a material and substantial change had occurred since the last order concerning S.M. and the requested modification was in the best interest of the child. Because there were no findings in a separate document that conflicted with the findings set out in the trial court’s order, the court gave the findings probative value. Thus, the court found that the trial court’s failure to enter findings of fact or conclusions of law did not leave Lynne to guess the basis for the trial court’s ruling and did not prevent her from making a proper presentation of her case. In her second issue, Lynne contended that the trial court abused its discretion by ordering that her periods of possession of S.M. be supervised. In her third issue, Lynne contended that the trial court abused its discretion in limiting these periods to less than those provided in a standard possession order. The record, the court stated, was utterly devoid of evidence that Lynne ever abused or neglected S.M. or that she allowed him to be abused or neglected while in her presence. The court concluded that the evidence at trial would not enable reasonable and fair-minded people to find that Lynne exhibited a history or a pattern of abuse or neglect toward S.M. Thus, the court found that legally insufficient evidence supported the trial court’s finding that Lynne had exhibited a history or a pattern of abuse or neglect toward S.M. Moreover, the court found no evidence upon which the trial court could have exercised its discretion to order that Lynne’s visitation be under the supervision of the Harris County “SAFE Program.” Accordingly, the court found that the trial court abused its discretion in deviating from the guidelines of a standard possession order and in ordering that Lynne’s periods of visitation with S.M. must be supervised. In her fourth issue, Lynne contended that the trial court abused its discretion in modifying the joint managing conservatorship and in naming Larry the sole managing conservator, because Larry never requested this relief. Larry never requested the trial court to appoint him as sole managing conservator, the court stated. As a result of this fact, the court concluded that the trial court erred in naming Larry as sole managing conservator and in not continuing the conservatorship with Larry and Lynne serving as joint managing conservators. Next, the court found that the trial court did not abuse its discretion in granting Larry the exclusive rights t consent to medical, dental, and surgical treatment involving invasive procedures as well as psychiatric and psychological treatment of S.M.; and make decisions concerning S.M.’s education. Given the errors, the court reversed all attorneys’ fees awards and remanded these issues to the trial court for reconsideration. OPINION:Frost, J.; Frost, Seymore and Sears, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.