### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00833- CV

Nathan Ed ward S chell, Appellan t

v. Kr ystal Woolery Schell, Appellee

F ROM TH E CO UNTY COURT AT LAW O F B ASTROP CO UNTY NO. 10- 1377 8, H ONO RAB LE B ENTON ES KEW , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Nathan Edwar d Schell and Kry stal Woolery Schell marrie d in 2005 and divorce d in November

2010 and have two children—N .S., born in Aug ust 2007, and A.S., born Aug ust 2010. During their di vorce , t h e parties entere d into an agr eed conservatorship arr ang ement under which they wer e appointed joint manag ing c onservators and Nathan was g iven s chedule d visitation with both children. Under the divorce decr ee, when the parties lived more than 100 miles apar t, Nathan had possession of N.S. ever y other wee kend and cer

tain holiday s, a wee k in the spring , and forty -two day s in the summer. Until A.S. was nine months old, Nathan had visitations on Sunday afte rnoons when he had N.S. and on two we ekday evening s. After A.S. was nine months old, his possession incre ased to we ekend a fternoons w hen he ha d N.S., plus two weekda y evening s. I n about Marc h 2011, Nathan moved to New York City to start a new company . He filed a motion to modify seeking reduc ed child support and elec tronic co m m u nication with the children, and Kry stal filed a counter -petition, asking that Nathan be require d to exercise possessionof N.S. at least once a month and not to have extended summer possession unless he had exercised

monthly possession for three consec utive m o n t h s b efore summer. She also asked that Nathan be require d to exercise consecutive visit ations with A.S. befor e his possessio n o f her could i ncre ase. The trial court held a hear ing and modified the child support awa rd and the possession order , finding that modification was in the children’s best interest

. Nathan was named possessory conser vator, 1 and Kry stal was named sole manag ing conser vator. Nathan was g rante d possession of the children

one wee kend a month and for one wee k during the summer and one wee k afte r C h ristmas; the monthly visits must be in Texas but the summer and Christmas visits can be at Nathan’ s place of residenc e. The court re quired Nathan to take both childre n when he exercised visitation.

On appea l, Nathan contends that the trial court abused its discretion (1) in removing him as a joint manag ing conser vator beca

use Kry stal did not reque st that relief and (2) in modify ing

a n d r e d u c in g h is p o s s e s s io n o f th e c h il d r e n , a s s e r ti n g th a t th e r e w a s n o e v id e n c e th a t th e mo d if

ic a ti o n s

wer e in the childre n’s best intere st. W e af firm the trial c ourt’s orde r. Na t h an did not complain about the court’s conser vatorship decision at the hear i n g

or file a motion for new trial, an d o n appea l, he does not complain about the sufficie ncy of the 2 evidenc e supporting the conse rvatorship de cision. Thus, his complaint related to his appointment

as possessory conser

vator, raised for the first time on appea l, is waived. See Office of the Attorney Gen. v. Burton , 369 S.W .3d 173, 175 (Tex. 2012) (par ty need can raise leg al sufficie ncy complaint

Nathan doe s not complain about the modified child support oblig ation on appea l. 1 At the conclusion of the hear ing, Nathan challeng ed the new child support obligation. The 2 trial court r esponded that Nathan c ould file a motion for new trial or motion for re hear ing, sa y ing, “I am more than happy to take extra time to do it r ight,” and, “I don’t rea lly car e about the for m as long a s Ihave e noug h information to g et it rig ht.” 2fo r first time on appea l but otherwise g ener ally must raise complaints befor e trial court by timel y

reque st, objection, or motion); Tucker v. Thomas , 405 S.W .3d 694, 712-13 ( T ex . App.—Houston [14t h Dist.] 2011), rev’d in part on other grounds , No. 12-0183, 2013 Tex. L EXI S 1035, at *4 n.1 (Tex. D ec. 13, 2013) (a g ree ing w ith court of appea ls that a ppellant waived complaint by failing to raise it in trial court); Bird v. Kornman , 152 S.W .3d 154, 160-61 (Tex. App.—Dallas 2004, no pet.) (trial court g rante d relief not reque sted in pleading s, but “[t] o comp l ai n ab o u t an err or in the judgme nt rende red, Bird was require d to prese nt the err or to the trial court in a post-judgme nt motion such as a motion to alter or co rr ec t t h e judgme nt or motion for new trial”); London v. London , 94 S.W .3d 139, 151 (T ex . Ap p . —Houston [14t h Dist.] 2002, no pet.) (complaint that trial court imposed restriction not authorized by statute was not ra ised in trial court a nd was wa ived). As for Nathan’s seco n d i s s u e, arg uing that there was no evidenc e that the chang ed possession was in the children’ s best interest, we revie w the trial court’s decisi o n for an abuse of dis cre tion, asking only whether the court had sufficie nt evidenc e upon which it could exercise its discretion. See In re P.M.G. , 405 S.W .3d 406, 410 (Tex. App.—Texarkana 2013, no pet.)

. We consider the evidenc e most favor able to the tria l court’s ruling, defer to the court’s cre dibilit y and demea nor deter minations, and will uphold the ruling on any leg al theory supported by the evidenc e. Id. The sufficie ncy of the evidenc e is not an independe nt g round for reve rsal, but is rele vant in revie wing whether

the trial cour

t abused its discretion. Id. Although Nathan arg

ues that there i s n o evidenc e that the chang ed schedule is in the children’ s best interest, the trial court hear d evidenc e that N.S. g ot very upset when his fathe r did not exercise visitation; he h ad d i ff iculty rea djusting when he returne d from a wee kend visitation; was tea rful and ve ry

cling y when his mother dropped him off at school following a visitation; and

3often did not want to spea k t o Na t h an on the telephone. Fur ther, Nathan had exercised very few visitation per iods since moving to N ew York City . I n Marc h 2011, he spent half of his w eek- long spring brea

k visitation with N.S. and had one afte rnoon visit with A.S.; in April and May , he spent

a total of three wee kends with N.S. and exercised no visitation with A.S.; and in J une, he had spent one af ternoon with A.S. and one wee kend with N.S. On this rec ord, g iven the children’ s y oung ag es, the evidenc e that N.S. was upset afte r

wee kend vis itations and when Nathan missed a vis itation, the i nfre quency of Nathan’s v isitations with A.S., and the extremely defe rential standard of revie w applied in modification case s, we cannot conclude the trial court abused its discretion in deter mining that reduc ing Nathan’ s visitations was in the chil d re n ’s b es t i ntere st. See id. We aff irm the trial court’s order modifying the parties’ 3

conser vatorship and possession ar rang ements.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: F ebrua

ry 14, 2014

The case s cited by Nathan involve very differ ent circ umstances than those prese nted here

. 3 See In re K.T.W

. , No. 05-08-01416, 2010 Tex. App. L EXI S 1487, at *4-10 (Tex. App

. —Dallas Mar. 3, 2010, no pet.) (mem. op.) (no evidenc e to support modification; pare nts lived in same cities as at time of orig inal order s, no evidenc e of chang ed circ umstances or that child was suffe ring under orig inal arr ang ements, mother admitte d only chang e was child g rowing older); In re M.M.S. , 256 S.W .3d 470, 475-76 (T ex . App.—Dallas 2008, no pet.) (father lived in Oklahoma at time of orig inal order s, no evidenc e that children wer e harme d by visitation in Oklahoma or at g randpa rents’ home in Texas; only evidenc e of n ega tive eff ect of out-of-state visits rela ted to mother being inconvenienc ed during dispute over e x tended summer visitation). 4