Opinion filed March 29, 2019



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 17

- 00 190

- CV

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

On Appeal from the 3 18 th 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 relation ship 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, n either parent had the exclusive righ t to2

determine the primary residence of the children . Instead, t he d ivorce 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 parti es 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 base d upon a n 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 tri al court to implement a standard possession order to modif y 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 petition s 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

en tered 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 re stricting 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 interest s of the children

. Accordingly,3

the provision s of the divorce decree remained intact with respect to the parents’ possession of the children and the children’s residence

. O n January 11, 2016, Mother filed a new petition t o 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 childre n 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 th is 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 tria l 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 b oth 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 rega rding Father ’s access to and possession of the children , and it prohibited contact with the paternal grandparents

.

1 Mother filed this new petition after the hearing and letter ruling of November 12, 2015, but before the entry o f the written order of January 20, 2016, denying the parties’ motion s seeking to modify the possession provisions of the divorce decree.4

Father s ubsequently 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 restriction s

. The geographic restriction imposed b y the jury w as Midland
C ounty , within a 150

- mile radius of Midland C ounty, 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 pri mary residence

. Father contends that the trial court used the wrong legal standard of a “ material and substantial change ” to analyze whether the t emporary order at issue was appropriate

. Father asserts that the pleading requirement of
S ection 156.102 of the Texas Family Code governed the trial court’s decision for the entry of temporary orders

. See T EX

. F AM

. C ODE A NN

. § 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 orders5

of a trial court issued during the pendency of a proceeding are superseded by the trial court’s final order) ; se e also Rafferty v. Finstat , 903 S.W. 2 d 374, 378 (Tex. App.

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

. Father also asserts that the final order was invalid under the pleading requirement s of Section 156.102(a). Specifically, Father contends that the jury tria l 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 sa me. See F AM

. § 156.102(a). If Section 156.102 is applicable, t he 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, t he January 20, 2016 order denied the modifications requested by each party. Accordingly, the provisions of the 2010

2 Contrary to Father’s assertion, there is no requirement in S ection 156.102 that there be a showing of “imminent” physical or emotional danger. See F AM

. § 156.102(b).6

divorce decree remained in force when Mother filed her January 11, 2016 petition to modify.
T he divorce decree did not grant either party t he 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 ent ry of the divorce decree, the pleading requirement s 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 14 8

. 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

o f no consequence under the statute because Section 156.102 is triggered by the entry of a previous o rder 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.7

Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985). The e xercise 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 cl aims 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.
W hen 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

e valuate 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 fair

minded 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 i nference to support it. Id

. at 822. We credit favorable evidence if a8

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 evidenc e 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
agree ment 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 t hat 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 Fathe r’s contention on appeal, B.G.’s belief that he was prohibited from working near Odessa was not the only reason for Mother’s requested9

modification. Mother testified to other reasons why the modification was in the best interests of the children

— the prima ry 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 f rom 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 standar d. 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 gran ted.
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 e ssential 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 know n 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 g rounds 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 establish10

in his motion for new trial that he exercise d 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.