### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00241
- CV

Jason O . Gordon, Appellant

v. Amanda Martin, Appellee

FROM THE COUNTY COUR T AT LAW NO. 3 OF WI LLIAMSON COUNTY NO. 16
- 0010
- FC3, THE HONORABLE JOHN MCMA STER, JUDGE PRESIDIN G

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

Jason Gordon , appearing pro se , 1 appeals from a final order modifying his access to the three children he has with his ex

- wife, Amanda Martin . Specifically, Gordon contends the presiding judge abused his discretion by : ad m it ting an unauthen ticated photograph of alleged drugs; making findings of fact unsupported by the evidence ; unreasonabl y restricting Gordon ’ s

acc ess to his children ; and ordering him to reimburse Martin for certain medical expenses and attorney ’ s fees. W e will affir m.

BACKGROUND

Gordon and Martin have three children together: t win twelve

- year - old girls and a
younger boy. The couple divorced in 2016. P rovision s in the fin al decree of divorce required

1 Courts hold pro se litigants to the same standard as those represented by counsel. United Copper Indus., Inc. v. Grissom , 17 S.W.3d 797, 805 n.6 (Tex. App.

— Austin 2000, pet. dism’d).2

Gordon to pay child support and to reim burse Martin f o r certain me dical expenses. Martin filed a motion to enforce th ose provisions i n May of 2018.

In July of 2018, while the motion to enforce was pending, Martin filed a petition to modify possessio n and access and sou ght a temporary restraining order restr i c ting Gordon ’ s access to the children until her petition could be he ard . In her pet ition , she alleged that the two girls had discovered a ziplock bag of what app eared to be drugs in Gordon ’ s house while the children were in his care. The girls allege dly t ook a photo of the zip lock bag and show ed their mother , wh o subsequently s ubmitted a copy to the court. The court issued the temp orary restraining order and scheduled a hearing for August 2, 2018.

At the Au gust hearing, the only witnesses were Gordon , M a r t in , and a n investigator from the Texas Department of Child an d Family Protect ive Services

. Most of the testimony revolved around the pho to and the girls ’ reports of unu sual acti vity in the household. Gordon testified that he did not know wh a t was show n in the photo because he “ never found the bag. ” He said he did not know who took the photo but conceded tha t th e only individ uals in the house at the time the photo was take n were his three children. When asked by counsel, he declined to testify that he b elieved the substance in the bag to be rock salt (i.e., instead of methamphetamine s ) but denied any drug use si nce the divorce. He submitted to the court the clean results of a recent ur ina lysis . He testifie d that he was opposed to any court

- orde red dr u g testing because he believed it unnecessary , an inv asion of his pr ivacy , and be cause “ [t ]he children are not in danger

. ” He said he could not consent to testing of his house because he was not the owner of the home. Gordon denied reports that he had fr e q ue nt visitor s that would stay for only a few minutes at a time . He conceded to leaving the girls alone or unat tended for up to

a n hour at a time but denied that he and his girlfriend would lock the mselves in the bedroom for3

hours at a ti me while the gir l s were in the home. He also conceded that he and his girlfriend had had “ some arguments ” recently but was unsur e about the accuracy of reports that neighbors could hear them shouting at one another

.

The investigator testified that he had visited the chil d r en and asked th em about the photo. When he began to describe his conversations with the children about the ph oto and about what they had observed in the household, counsel for Gor don raised a hearsay objection. The court sustained the objecti on but all o w ed the investigator to co ntinue testifying, explaining, “ I ’ m going to have an opportunity to interview the children in chambers , o kay ? ” He continued , “ [But] as to what his perceptions are, I will let him testify to that. ” The investigator testi fied tha t the substan ce in the photo looked “ suspicious ” and that he was concerned that no adults were present in the home at the time the substance was discov ered. He attested to his impression that Gordon and his girlfriend would retire to their bedroom for som e t imes hours a t a time behind a locked door, and that the children ’ s needs might be negl ected during that time. Wh en asked about the children ’ s safety , he res po nded that it was his impression that the children were “ concerned ” for their safety but not “ sc a r ed. ” Finall y, he testified that it would assist his investigation if Gordon woul d submit to hair or finger nail testing and allow the Departm ent to test th e home for the presence of drugs.

Martin took the stand and testified that the girls showed her the p hoto, t hat it h ad
not been altered since it was taken, and that the t imestamp

— which with geolocation data confirmed the girls ’ presence in Gordon ’ s house

— w as correct. When Gordon ’ s attorney again objected t o this testimony as hearsay and challenged the a u thent ication of t he phot ograph, the court answered:4

Just so you know what the Court is going to do in the interview, I ’ m going to make a copy of [the pictu re of ] that bag and sit down with the girls and say, “ Did you t ake that picture ? ” That ’ s what I ’ m g o ing t o do.

The cour t then allowed admission of the photo as movant ’ s exhibit #1 and a second exhibit showing geolocation data from the time the photo was taken. Martin continued to testify of her

c o ncern s that Gordon might have re lap sed in to drug use an d of he r concerns for the welfare of her children while in his care. She e mphasized that the children love their father very much and that “ [t]hey just want him to be recovered and healthy

. ”

On Marti n ’ s motion an d over Gordon ’ s objection, the court then c o n ferre d with the two g irls in chambers

. See Tex. Fam. Co de § 1 53.009( b ) ( requiring , on motion of any party

or on court ’ s own initiative, court to interview in chambers a child 12 years of age or ol der on issues of conservatorship ). T here is no record of t he e xchange in chambers, and it is unkno wn exactly what the girls said , but t heir testi mony clea rly impacted the court

. When the proceedin gs reconvened, t he presidi ng jud ge summarized his intervie w as follows:
[The girls] are really sweet. Completely c r edibl e. Smart, articulate. Really precious. Love their dad. I fir mly believe that we have a problem. I ’ m cutting off access until w e get the children in to see a therapist an d let therapist wor k with dad. It ’ s incumbent upon dad to facilitate that. I beli eve that there is reason, clearly reason, to believe that there ’ s drug usage going on in the house. I believe that that is certainl y a dangerous circumstance and certainly rise s to the level of impairment to these children in terms of their emotional devel opment. I want dad to participate in that counseling. I want a

-- dad has the option to take a nail test today. If that is negativ e, that would be illuminating. If I could get a test of that house for drugs, that would also work very strongly in da d ’ s fa vor.

The cour t then issued a n order requiring Gordon to submit to same - day fingernail testing , to undergo counseling, and to pay for the counseling. The court also forb ade a ny visitation5

betwe en Gordon and the children until the court could review h i s com pliance with the terms of the order

. When Gordon failed to compl y with the order , Martin filed a motion to enforce. The court ultimately he ld a final hearing to dispose of all issues. The jud ge heard additional testimony from Martin , from the famil y ther ap ist that had been working with the children, and from Martin ’ s attorney. The court also admitted several more exhibits. Gordon did not attend the hearing, although his attorney was present.

The Court re ndered a f inal order includ ing provisions re q uirin g Gordon to undergo counseling for drug addiction and to submit to a series of fingernail tests. The court ordered re stricted supervised possession of the children every other Saturday “ unt il [he] has provided the negative nail [

- ] follicle drug test

. . . and proof of attending the six counseling sessions. ” The court further provided that i f Gordon would produce the clean test results and proof of counseling, his possessory rights would rev ert to th e unsupervis ed possession outlined in the original d e c ree of divorce. Fina lly, the court ordered increased child sup port, increased
pa yments toward health insurance, reimbursement of outstanding medical bills, and reim bursement of Martin ’ s attorn ey ’ s fees.

Gordon requested findings of fact and con clusions o f law, which the court provided . He also filed an unsuccessful moti on for new trial followed by a motion to recuse the judge . He timely perfected this appeal

.
STANDARD OF REVIEW
Modification o f an existing possessory order is proper when circumstances h a v e changed and the party m oving to modify can demonstrate that the desi red modifications are in6

the best interest of the child or children subject to the order

. See Te x. Fam. Code § 156.101.
T he resulting modification order “ will not be disturbed on ap p e a l unless the complaining party can show a clear abuse of discretion. ” Zeifman v. Michels , 2 12 S.W.3d 582, 587 (Tex. App.

— Austin 2006 , pet. denied )

. The tria l court abuses its discretion “ if i t acts arbitrarily and unreasonably or without regard to gui d i n g rules or principles. ” Id. (citing K

– Mart Corp.

v. Honeycutt , 24 S.W.3d 357, 360 (Tex. 2000 ); Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990 ) )

.
DISCUSSION

Gordon raises four issues on ap peal. 2 First , he argues that the court abused its discretio n i n admitting Ma rt in ’ s e xhibit #1, the photograph depicting an unkno wn substance resembling methamphetamines

. Second, he characterizes several of the f i ndings of fact as

“ unsupported by the evidence ” and “ unreasonable. ” Third, he contends that Mart in is no t entitled to reimbursement of medi cal e xpenses. And finally , he challenges the court ’ s decision to award Martin $5,400.00 in attorney ’ s fees.
Admission of Photograph

Gordon first complains that the trial court abused its discretion by admitting Martin ’ s e xhibit #1 without anyone present t o auth enticate that photograph and its contents

. This

2 For the sake o f brevity and clari ty, w e h ave consolidated Gordon ’ s issues based on the substance of his arguments

. See Tex. R. App. P. 47.1 (requiring an opinion “ as brief as practicable ” ) ; Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc. , 997 S.W.2d 298, 304 n.9 (Tex. App.

— Aust in 199 9, pet. denied) (consolidating p oints of error for discussion); Niess v. State , No s . 03

- 11

- 00213

- CR, 03

- 11

- 00214

- C R, 03

- 11

- 00215

- CR, 03

- 11

- 00216

- CR, 03

- 11

- 00217

- CR, 2012 WL 2383300, at *1 (Tex. App.

— Austin June 21, 2012, no pet .) (mem. op.) (not desi gnat ed for pu b lication) (“Th ough Niess raises these arguments in thirteen separate points of error, for convenience we have grouped the points of e rror into four legal issues on appeal.”).7

is not an accurate characterization of the record. Martin brought a cell phone with he r to the
stan d and then testified that it is her phone, that the children ha d i t with them while they stayed with their dad , that she found the photo on the phone when they returned, and that certain timestamp and geo location data confirm the photo was taken in Gordon ’ s ho use . The presiding judge did not ask Martin to authenticat e t h e cont e nts of the photo . In stead, the court explained that he would confer with the two girls in chambers to authenticate the pho to and find out more about the circumstances that led them to take it. Gordon complains that there is no proof tha t the
g i rl s authe nticated the photo in chambers because no record was taken. However, the photo is cumulative of other evidence of drug use , so any error in the admission of exhibit #1 would have been harmless and not reversable on app eal. See Tex. R. App. P. 4 4 .1

. We overrule the iss ue.

Evid entiary Sufficiency and Reasonableness of Court ’ s Decision

In his second issue, Gordon complains of eight of the court ’ s fifteen findings of fac t, arg uing that they are “ not supported by the evidence ” and “ arbitrary

. ” “ [L] e ga l and factual suffici ency cha llenges to the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. ” Zeifman , 212 S.W.3d at 5 87 (citing In re D.M ., 191 S.W.3d 381, 393 (Tex. Ap p . — A ustin 2006, pet. den ied) )

. “ T he traditional sufficiency review comes into play

. . . however, the inquiry does not end there. ” Id

. at 588 (citing Echols v . Olivarez , 85 S.W.3d 475, 47 8 (Tex. App.

— Austin 2002, no pet.) )

. “ The appellate court then procee d s t o determine whether, based o n the evidence, the trial cou rt made a reasonable decision, that is, that the court ’ s decision was neither arbitrary nor unreasonable. ” Id

.

“ When an appellant attacks the legal sufficiency of an adverse finding on an issue o n w hich he did not have the bur den of proof, the appellant must demonstrate on appeal that there is no8

evidence to support the adverse finding. ” Id. (citing Croucher v. Croucher , 660 S.W .2d 55, 58 (Tex. 1983) )

. “ W hen an appella nt attacks the factual suf f ic i ency of an adverse f

inding o n an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly

un just. ” Id . at 589 (citing Ca i n v. Bain , 709 S.W.2d 175, 17 6 (Tex. 1986 ) ).

Evidentiary Sufficiency Gordon challenges the evidentiary support for the following findings :

• Finding 1: [ Gordon ] through counsel admitted to a prior history of methamph et amin e. Gordo n observes that it was he h i mself, and not coun sel , tha t attested to the history of drug abuse. In fact, both he and his attorney referred to his history of drug use , which was uncontroverted bel ow. Thus, the record supports the finding.

• Finding 2 : Part of the evid ence were p rio r court orders wherei n [ Gord on ] was ordered to submit to d rug testing and as of the final trial, no nail [

- ] follic le drug [

- ] testing results were provided and [ Gordon ’ s] previous testimony and rationale for his refusal to provide a drug test was not cre d ibl e. Gordon complains that d rug testing was merely optional. That characterization is refuted by the record. The c ourt ’ s order of August 2, 201 8, unambiguously required Gordon “ to submit to a nail [

- ] follicle ten [

- ] panel drug test ” “ by 3:00 p.m. today

. ” It i s undisputed that Gordon never
prov ided any testing results to the court. T he finding is therefore supported by the record.

• Finding 3: [ Gordon ] admitted to leaving the children in the home unsupervised and this was consistent with the other testim o ny. G or don c omplains o f this finding, explaining that “ leaving two 12

- year - old kids to watch a
7

- year - old is proper with the age requirements for babysitting in this state. ” Setting aside the9

veracity of that statemen t, Gordon has not show n how this fi n di ng is u nsupported by t he evid ence. To th e contrary, multiple witnesses testified

— and Gordon co nc eded

— that he leaves the children at home alone or unsupervised while he and his girlfriend lock themselves in the bedroom. The record thus pro v ides suffici e nt supp or t for this find ing.

• Fi nding 4 : The Court met with the children in chambers and the court found them credible and the n verified that they found a suspicious sub stance in [ Gordon ’ s] house while they were home unsupervised and they took a photo of t h e item.

• Finding 5 : There was ev idence that the children took a photograp h of the suspicious evidence that appeared to be a n illegal substance, namely methamphetamine , and the proof was that the picture was taken while in [ Gordon ’ s] home. Gordon c omplains , “ [N]o Re cord of the meet ing was taken a nd the children n ever testified s o this is Hearsay. ” He further laments, “ No person with personal knowledge of the picture testified and the only circumstantial evidence given was a GPS screen shoot [sic]. ” We dis p osed of t hese argument s i n our e arlie r discussion of the admission of the photograph.

• Finding 10 : [ Gordon ] was not involved in the children ’ s counseling with Dr. Martin Eichler regarding the drug i ssue that resulted in this lawsuit

. Gordon objects to th i s findi ng , observing that he att ended two session s . The court, however, had ord ered Gordon to par ticipate in at least six sessions. So while the evidence supports Gordon ’ s interpretation that he was “ involved ” th rough his partial participation, the cour t ’ s find in g to the
contrar y is al so supported by this record and is neither arbitrary nor manifestly unjust. See Zeifman , 212 S.W.3d at 5 88.

Reasonableness of Deci sion s In his challenge to Findings 12 and 1 3, Gordon disputes the reasonable ness of the
court ’ s ul timate conclusi on s reg arding access to the childre n :10 • Finding 1 3 : The court finds that the minimal counseling and d rug testing requirements are in the child ’ s [sic] best interest. Gordon characterizes the counseling and testing requirements as “ unreaso nab l e ” and

“ unsupp orted b y any statute or guiding principle ” and therefore an abuse of discretion

. B ut t he judge ’ s decision to r equire counseling and testing is reasonable on this record, which includes Gordon ’ s concession s of a hi story of drug us e and a cur re nt pattern of leavin g the children unattended for l ong periods of time , along with th e children ’ s reports of the unusual behavior within the home. Other courts have found similar mea sures to be in a child ’ s best interest when there exists a d o cumente d h is tory of drug use. S ee, e.g ., J.A.S. v. A.R.D ., No. 02

- 17

- 00403

- CV, 2019 WL 238118, at *2 (Tex. App.

— Fort Worth Jan. 17, 2019 , no pet. ) (me m. op.) (re ferring to trial court ’ s conclusion t hat “ step

- up access ” contingent on results of dru g testi n g is in ch il d ’ s best inte rest) ; White v. Mapel , No. 01

- 95

- 01125

- CV, 1996 WL 496908, at *3 (Tex. App.

— Houston [1 st Dist.] Aug. 29, 1996 , no writ ) ( affir ming final decree , including provision declaring drug testing in child ’ s best interest ) ; cf

. Newell v. N

e well , 3 49 S. W.3d 717, 721 (Tex. App

. — Fort Worth 2011 , no pet. ) (finding abuse of discretion in lower court ’ s requirement of random alcohol testing a s condition of access where “ no evidence exist [ed] that [Father] has ever had an alcohol addiction ” ). We t h erefore di sa gree that the court abused its discretion in impos ing the

access res trictions

.

• Finding 12 : The variations in the Standard Possession Order were the most

minimal restriction s on Gordon ’s possession and access possible that was also [sic] in the best in ter es t of the chil dren. Gordon challenges t he court ’ s finding that the access restrictions are the least

- restrictive measures necessary to protect the best interest of h is children. See T ex. Fam. Code § 153.193 ( “ The terms of an order that denies possess ion of a child to a paren t or imposes restrictions or11

limitations on a parent ’ s right to possession of or access to a child may not exceed those th at are required to protect the best interest of the child

. ” ). Gordon did not propose any lesser

- rest r ictive

meas ur es to th e co urt bel ow and does not do so here. Nor does he point us to any case s supporting his a rgument.

Havin g revie wed this record under the applicable standards , we conclude Gordon has not met his burden to show the challenged findin g s of fa ct uns up ported by the evidence or unreasonable in light of the evidence before the court. See Zeifman , 212 S.W.3d at 5 87

– 88. We therefore overrule the issue.
Medical Expenses

Gordon contends the court abused its discretion in granting Martin the r equeste d enfo rc ement relief with respect to the children ’ s unpaid m edical bills. Specifically, he claims that Martin did not sat isf y a “ condition precedent ” of reimbursement when she failed to t imely provide him with records of the expenses. But Martin a dmitted into ev idence a copy of all the records and testified that she h ad provided Gordon with each record within thirty days of receip t. Gordon disputes Martin ’ s characterization of that timeline

. But e ven so , the trial court did not abuse its discret i on by r esolvi ng any discrepancy in Martin ’ s favor. See In re S.E.K. , 294 S.W.3d 926, 930 (Tex. App.

— Dallas 2009, pet. denied) ( “ [W] e . . . indulge every presumption in favor of the trial court ’ s order ” because “ [t] he trial court is in the best position to observ e the wi tnesses and their demea nor . ” (citing Garner v. Garner , 200 S.W.3d 303, 306 (Tex. App.

— Dallas 2006, no pet.)) ). We overrule the issue.12

Attorney ’ s Fees

Go rdon ’ s challenge to the award of $5,400 in attorney ’ s fees is not entirely clear. In ge neral, “ the c ou rt may render judgment for reasonable attorney ’ s fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney. ” See Te x. Fam. Code § 106.002 (a). In this case, Martin ’ s attorney testified that he has practi ce d la w for twenty years and th at his customary hourl y rat e is $300 per hour. He outlined to the court where he had invested his time and his efforts to minimiz e cost. He further testified that the $5,400 in fees
incurred was both reasonable and n ecessar y cons id ering the com plexity of the case. Gordon offered no evidence to the contrary. Where a party ’ s evidence on fees i s uncontested, a trial court does not a buse it s discretion in awarding fees under section 106.002. See In re A.J.L. , 108 S.W.3 d 414, 423 (T ex . App.

— Fort Worth 2003 , pet. denied )

. We overru le Gordon ’ s final issue.

CONCLUSION

Having found no error or abuse of discretion in the court ’ s Final Modific ation and Enforcement Order, we affirm that ord er.

_____________________________ _____________ Edward Smith , Justice Before Justices Goodwi n , Kelly, and Smith Affirmed Filed: April 17, 2020