Opinion filed March 29, 2019

In The

Eleventh Court of Appeals 

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No. 11-17-00190-CV

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IN THE INTEREST OF A.D.C. AND E.N.C., CHILDREN

On Appeal from the 318th District Court

Midland County, Texas

Trial Court Cause No. FM 50087

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

Father appeals the trial court’s order granting Mother’s petition to modify the 

parent-child relationship with their children, A.D.C. and E.N.C. The trial court 

entered the order based upon the jury’s verdict in favor of Mother. Father brings

two issues on appeal. We affirm. 

Background Facts

Father and Mother are the parents of A.D.C. and E.N.C. On February 25, 

2010, the trial court entered a final decree of divorce dissolving their marriage. The 

divorce decree appointed Father and Mother as joint managing conservators of the 

children. Under the divorce decree, neither parent had the exclusive right to 
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determine the primary residence of the children. Instead, the divorce decree

provided as follows:

[T]he primary residence of the children shall be restricted to Midland 

County, Texas and any county contiguous thereto, and the parties shall 

not remove the children from Midland County, Texas and any county 

contiguous thereto for the purpose of changing the primary residence 

of the children until modified by further order of the court of continuing 

jurisdiction or by written agreement signed by the parties and filed with 

the court.

Furthermore, the divorce decree provided that the parties would have equal 

possession of the children to be exercised on alternating weeks.

On June 18, 2015, Mother filed a petition to modify the parent-child 

relationship based upon an allegation of a material and substantial change in 

circumstances. In the petition, Mother requested that she be permitted to designate 

the primary residence of the children without regard to geographic restriction. 

Mother also requested the trial court to implement a standard possession order to

modify Father’s access and possession. Subsequently, Father filed a counterpetition 

to modify the parent-child relationship seeking to be the parent to designate the 

primary residence of the children.

The trial court considered the petitions seeking modification at a final hearing

conducted as a bench trial on November 12, 2015. The trial court notified the parties 

of its decision in a letter ruling issued on that date. The trial court subsequently 

entered a written order on January 20, 2016, wherein it denied each party’s request 

seeking appointment as the conservator with the exclusive right to designate the

children’s primary residence. Furthermore, the trial court did not modify the prior 

order restricting the children’s primary residence to Midland County or counties 

contiguous thereto. In its findings of fact and conclusions of law, the trial court 

found that modification was not in the best interests of the children. Accordingly, 
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the provisions of the divorce decree remained intact with respect to the parents’ 

possession of the children and the children’s residence.

On January 11, 2016, Mother filed a new petition to modify the parent-child 

relationship.

1

 In this petition seeking to modify the terms of the divorce decree, she 

alleged a material and substantial change based upon an allegation that the paternal 

grandfather was arrested for indecency with a child in January 2016. The alleged 

victim was not one of the children that are the subject of this appeal. Mother sought

appointment as the person with the authority to designate the primary residence of 

the children. Mother also sought to deny Father access to the children until a doctor 

had the opportunity to evaluate the children. Mother also requested temporary 

orders seeking this requested relief.

On February 12, 2016, the trial court held a hearing regarding Mother’s 

request for temporary orders. The trial court orally pronounced that a material and 

substantial change warranted the parties’ appointment as temporary joint managing 

conservators with Mother appointed as the parent with the exclusive right to 

determine the primary residence of the children.

On April 20, 2016, the trial court entered written temporary orders with 

respect to the February 12, 2016 hearing. These written orders contained a finding 

that the children’s circumstances had materially and substantially changed since the 

rendition of the most recent final order. The trial court appointed both parties as 

temporary joint managing conservators and gave Mother the exclusive right to 

designate the primary residence of the children within Midland County. The trial 

court also adopted the standard possession order regarding Father’s access to and 

possession of the children, and it prohibited contact with the paternal grandparents. 

 

1Mother filed this new petition after the hearing and letter ruling of November 12, 2015, but before 

the entry of the written order of January 20, 2016, denying the parties’ motions seeking to modify the 

possession provisions of the divorce decree.
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Father subsequently filed a counterpetition for the same relief and requested a jury 

trial on the matter. Mother later filed a supplemental motion to modify the order to 

remove the prior geographic restriction of Midland County and adjacent counties.

On December 12, 2016, a jury trial on the parties’ requested modifications 

began. After hearing the evidence, the jury returned a verdict to the effect that the 

2010 divorce decree should be modified. The jury determined that Mother should 

have the exclusive right to designate the primary residence of the children with

geographic restrictions. The geographic restriction imposed by the jury was Midland 

County, within a 150-mile radius of Midland County, or within a 50-mile radius of 

DFW Airport or Dallas Love Field. Based on this verdict, the trial court entered a 

final order on April 27, 2017.

Father subsequently filed a motion for new trial. The grounds asserted in the 

motion included failure to grant a mistrial, improper jury argument, legal and factual 

insufficiency, and newly discovered evidence. The trial court denied the motion for 

new trial without conducting a hearing.

Analysis

In his first issue, Father asserts that the trial court abused its discretion by 

entering the February 12, 2016 temporary order appointing Mother as the temporary 

joint managing conservator with the exclusive right to establish the children’s 

primary residence. Father contends that the trial court used the wrong legal standard 

of a “material and substantial change” to analyze whether the temporary order at 

issue was appropriate. Father asserts that the pleading requirement of 

Section 156.102 of the Texas Family Code governed the trial court’s decision for the

entry of temporary orders. See TEX. FAM. CODE ANN. § 156.102(a) (West 2014). 

To the extent that Father is complaining in his first issue about the entry of the 

temporary orders, his complaint is moot. See Mauldin v. Clements, 428 S.W.3d 247, 

261–62 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (noting that temporary orders 
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of a trial court issued during the pendency of a proceeding are superseded by the trial 

court’s final order); see also Rafferty v. Finstat, 903 S.W.2d 374, 378 (Tex. App.—

Houston [1st Dist.] 1995, writ denied).

Father also asserts that the final order was invalid under the pleading

requirements of Section 156.102(a). Specifically, Father contends that the jury trial 

should have never occurred because Mother did not comply with the pleading 

requirements of Section 156.102(a). We disagree with this assertion because we 

conclude that the pleading requirements of Section 156.102(a) did not apply to 

Mother’s subsequent petition to modify.

Section 156.102 addresses a petition “to modify the designation of the person 

having the exclusive right to designate the primary residence of a child [that] is filed 

not later than one year after” the previous order established the same. See FAM.

§ 156.102(a). If Section 156.102 is applicable, the trial court is not permitted to 

schedule a hearing or grant the relief sought unless an affidavit is attached to the 

motion detailing specific facts supporting one of three allegations. Id. § 156.102(c). 

One such allegation is “that the child’s present environment may endanger the 

child’s physical health or significantly impair the child’s emotional development.” 

Id. § 156.102(b)(1) (emphasis added).2

We note at the outset that Mother’s second petition to modify filed on 

January 11, 2016, sought to modify the original divorce decree. We further note that 

the trial court’s order of January 20, 2016, did not modify any of the provisions of 

the original divorce decree. To the contrary, the January 20, 2016 order denied the 

modifications requested by each party. Accordingly, the provisions of the 2010 

 

2Contrary to Father’s assertion, there is no requirement in Section 156.102 that there be a showing 

of “imminent” physical or emotional danger. See FAM. § 156.102(b).
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divorce decree remained in force when Mother filed her January 11, 2016 petition 

to modify.

The divorce decree did not grant either party the right to establish the primary 

residence of the children. Section 156.102 does not apply to a suit seeking “an order 

designating a person with the right to determine the primary residence of the children 

in the first instance, instead of a modification of the person so designated.” In re 

C.R.A., 453 S.W.3d 623, 631 (Tex. App.—Fort Worth 2014, no pet.) (quoting In re 

R.C.S., 167 S.W.3d 145, 148 (Tex. App.—Dallas 2005, pet. denied)); see Ellason v. 

Ellason, 162 S.W.3d 883, 886 (Tex. App.—Dallas 2005, no pet.) (noting “affidavit 

requirement does not apply when at the time suit is filed no person possesses th[e] 

exclusive right” to determine the primary residence of a child). Thus, even if Mother 

filed her second petition to modify within a year of the entry of the divorce decree, 

the pleading requirements of Section 156.102 would not have applied to her petition. 

See In re C.R.A., 453 S.W.3d at 631; In re R.C.S., 167 S.W.3d at 148.

The heightened pleading requirement of Section 156.102 did not apply to 

Mother’s second petition to modify because it was not filed within one year of a 

prior order designating a parent with the right to designate the primary residence of 

a child. The fact that Mother had filed a previous petition seeking the same relief is 

of no consequence under the statute because Section 156.102 is triggered by the 

entry of a previous order designating a parent with the right to designate the primary 

residence of a child rather than the filing of a previous motion seeking that relief. 

We overrule Father’s first issue.

In his second issue, Father complains that the trial court abused its discretion 

by denying his motion for new trial. We review a trial court’s ruling on a motion 

for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 

S.W.3d 922, 926 (Tex. 2009). Under this standard, we must determine whether the 

trial court acted without reference to any guiding rules or principles. Downer v. 
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Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The exercise of 

discretion is within the sole province of the trial court, and an appellate court may 

not substitute its discretion for that of the trial court. Johnson v. Fourth Ct. App., 

700 S.W.2d 916, 918 (Tex. 1985). Rather, an abuse of discretion occurs only when 

the trial court reaches a decision that is “so arbitrary and unreasonable as to amount 

to a clear and prejudicial error of law.” Id. at 917.

As noted previously, Father presented multiple grounds in his motion for new 

trial. He only raises two of these grounds on appeal: legal and factual sufficiency of 

the evidence and newly discovered evidence. Both of these grounds involve the 

same operative fact. Specifically, “Petitioner’s spouse’s testimony that he was and 

is unable to practice his trade in Midland and surrounding/contiguous Texas counties 

due to a provision in a ‘whistle-blowers’ settlement agreement--a claim which was 

false and which was the foundation of Petitioner’s motion to modify the underlying 

order.” Father claims that the evidence supporting the modification was legally and 

factually insufficient because Mother’s spouse was not actually required to move in 

order to continue practicing his occupation as a nurse anesthetist. He also contends 

that his discovery that Mother’s spouse was not actually required to move constituted 

newly discovered evidence.

When a motion for new trial is based on a challenge to the sufficiency of the 

evidence supporting the verdict, we apply the appropriate sufficiency standards to 

evaluate the trial court’s denial of the motion. Enright v. Goodman Distrib., Inc., 

330 S.W.3d 392, 396 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The test for 

legal sufficiency is whether the evidence at trial would enable reasonable and fairminded people to reach the verdict under review. City of Keller v. Wilson, 168 

S.W.3d 802, 827 (Tex. 2005). When reviewing the legal sufficiency of the evidence, 

we consider the evidence in the light most favorable to the verdict and indulge every 

reasonable inference to support it. Id. at 822. We credit favorable evidence if a 
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reasonable juror could and disregard contrary evidence if a reasonable juror could 

not. Id. at 827. Because jurors are the sole judges of the credibility of witnesses and 

may choose to believe one witness and disbelieve another, we must not substitute 

our opinion for that of the jury. See id. at 819. It is the role of the jury to resolve 

conflicts in the evidence; accordingly, we must review the evidence in a light 

favorable to the verdict and assume that jurors resolved all conflicts in accordance 

with that verdict. Id. at 820. In evaluating a factual sufficiency challenge, we 

consider and weigh all the evidence in a neutral light and will set aside the finding 

only if the evidence is so weak or the finding is so against the great weight and 

preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford 

Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The record indicates that one of the reasons for Mother’s requested 

modification was the fact that her new husband, B.G., had accepted a new position 

in the Dallas/Fort Worth Metroplex. Mother testified that B.G. searched for a 

position outside of Midland because of a confidential whistleblower settlement 

agreement and employment contract that restricted his ability to work for 

competitors within fifty miles of the Medical Center Hospital in Odessa. Both 

Mother and B.G. were under the impression that the employment contract and 

settlement agreement limited B.G.’s ability to work within fifty miles of Odessa after 

his contract ended. However, during cross-examination, it was discovered that the 

non-compete provision in the employment contract was only applicable during the 

term of the contract. B.G. testified that he believed the non-compete clause was in 

both the employment contract and the settlement agreement. B.G. further testified 

that his attorneys told him that the geographic restriction was enforceable against 

him after the settlement.

Contrary to Father’s contention on appeal, B.G.’s belief that he was prohibited 

from working near Odessa was not the only reason for Mother’s requested 
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modification. Mother testified to other reasons why the modification was in the best 

interests of the children—the primary reason being the paternal grandfather’s 

commission of the offense of indecency with a child. To the extent that the jury 

relied on Mother’s and B.G.’s reason for moving from Midland, B.G.’s testimony 

that his attorneys told him that he was prohibited from working in the area constitutes 

legally and factually sufficient evidence supporting the jury’s verdict.

A trial court’s decision regarding whether to grant a new trial based on newly 

discovered evidence is reviewed under an abuse of discretion standard. Waffle 

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); In re C.J.O., 325 S.W.3d 

261, 268 (Tex. App.—Eastland 2010, pet. denied). A party seeking a new trial based 

on newly discovered evidence must show that (1) the evidence has come to light

after trial, (2) it was not owing to want of due diligence that the evidence did not 

come to light sooner, (3) the new evidence is not cumulative, and (4) the evidence is 

so material that it would likely produce a different result if a new trial were granted. 

In re C.J.O., 325 S.W.3d at 268.

A movant’s mere allegations will not suffice to obtain a new trial 

on the basis of newly discovered evidence; rather, admissible evidence 

must be introduced at a hearing on the motion for new trial establishing 

such essential facts as no prior knowledge on the part of the movant, 

the prior diligence exercised by the movant, and the nature of the newly 

discovered evidence.

Strong v. Strong, 350 S.W.3d 759, 772 (Tex. App—Dallas 2011, pet. denied).

By definition, the evidence that Father cites did not constitute newly 

discovered evidence because it was known at trial. See Jackson v. Van Winkle, 660 

S.W.2d 807, 809 (Tex. 1983) (listing the elements of a claim of newly discovered 

evidence), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 

720–21 (Tex. 2003). Evidence is only newly discovered if it comes to light after 

trial. See In re C.J.O., 325 S.W.3d at 268. Furthermore, Father failed to establish
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in his motion for new trial that he exercised due diligence to discover this evidence 

sooner. Therefore, the trial court did not abuse its discretion in denying Father’s 

motion for new trial. We overrule Father’s second issue.

This Court’s Ruling

We affirm the trial court’s order of modification.

JOHN M. BAILEY

CHIEF JUSTICE

March 29, 2019

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.

 

3

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.