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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-20-00042-CV

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IN THE INTEREST OF E.R.A.

__________________________________________________________________

On Appeal from the 418th District Court

Montgomery County, Texas

Trial Cause No. 19-01-00655-CV

__________________________________________________________________

MEMORANDUM OPINION

In this post-divorce modification suit affecting the parent-child relationship, 

C.A., the father of the minor child, E.R.A., appeals the trial court’s final order 

appointing the child’s mother, J.B., as the managing conservator with the exclusive 

right to designate E.R.A.’s primary residence. In issue one, C.A. argues that the trial 

court abused its discretion by giving the exclusive right to determine the primary 

residence of E.R.A. to J.B., because the evidence was legally and factually 

insufficient. In issue two, C.A. complains that the trial court erred by not allowing 

the testimony of a rebuttal witness. We affirm the trial court’s judgment. 
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BACKGROUND

In June 2014, C.A. and J.B. divorced. In the Final Decree of Divorce, the trial 

court appointed C.A. and J.B. as joint managing conservators of E.R.A. The trial 

court did not appoint either parent as the conservator who has the exclusive right to 

designate the primary residence of the child, but the trial court did order that the 

parties “shall not move their respective residences, or the child, from the following 

specific area in Northwest Harris County for the purpose of changing their residence 

or that of the child until modified by further order . . . or by written agreement signed 

by the parties and filed with the court.” The trial court’s order indicated that the 

parties agreed to the following geographical boundary: “Harris County, outside 

Beltway 8, North of I-10 and West of 45 North.” The record shows that following 

the divorce, both parties moved outside of the geographical boundary. 

In September 2018, C.A. filed a petition to modify the parent-child 

relationship, contending that the “circumstances of the child, a conservator, or other 

party affected by the order to be modified have materially and substantially changed 

since the date of rendition of the order to be modified.” C.A. alleged that J.B. had 

engaged in a history or pattern of child neglect and that the trial court should consider 

J.B.’s conduct in determining whether C.A. should be appointed as sole managing 

conservator. C.A. requested that if the parties failed to enter a written agreement 

containing provisions for modification, the trial court appoint him as the conservator 
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who has the right to determine the primary residence of the child. J.B. filed a counterpetition to modify the parent-child relationship, requesting that the trial court appoint

her and C.A. as joint managing conservators of E.R.A. and designate her as the 

conservator who has the exclusive right to determine the primary residence of the

child within a geographical area established by the court. J.B. also requested that the 

geographical restriction be modified to include a broader area of Harris County. 

The trial court conducted a trial on the merits. C.A. testified that he divorced 

in 2014, and E.R.A., who is currently six years old, is his only child. C.A. explained 

that in the final decree, he and J.B. agreed to a split custody arrangement that 

included a geographical restriction in Harris County, and the decree did not award 

either party the exclusive right to designate the primary residence of E.R.A. J.B. 

testified that shortly after the divorce, J.B. moved outside of the geographical 

restriction to Huntsville, and C.A. agreed to the move and to having possession every 

weekend. C.A. testified that they intended for the agreement to be in effect for two 

years or until J.B. finished or left school. According to C.A, J.B. moved two 

additional times without revisiting their agreement, and C.A. explained that he filed 

a petition to modify the parent-child relationship because he was concerned that the 

moves were seriously affecting E.R.A. and J.B. had a pattern of neglecting E.R.A. 

C.A. explained that his concerns included E.R.A.’s attendance and tardiness at 
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school, her disrespectful behavior toward her teachers, and a noticeable bruise or 

rash on E.R.A.’s face.

C.A. testified that after he filed his petition, J.B. moved back to Houston. C.A. 

testified that he has moved five times since the divorce and has lived outside the 

geographical restriction once, and for the past two years he has lived with his best 

friend, who is married, to save money for a house. C.A. explained that he remarried 

in December 2018, and that his wife, M.A., has been involved in parenting E.R.A.

C.A. also testified that J.B. has had multiple relationships since the divorce, and C.A. 

was concerned that J.B.’s marriage to her wife, K.W., was confusing to E.R.A. C.A. 

further testified that J.B. does not involve him in making decisions regarding 

E.R.A.’s health and education, and C.A. believed that J.B. would not follow the trial 

court’s orders if she were the primary conservator. C.A. testified that if he had the 

exclusive right to determine E.R.A.’s residence, he would enroll E.R.A in the Waller 

school district and keep her in the Cypress area near her family, friends, and church. 

C.A. testified that he was concerned that E.R.A.’s current school district has low 

standardized testing scores. 

M.A. testified that she loves E.R.A. and treats her like her own child. M.A. 

testified that she had noticed changes in E.R.A.’s behavior, and M.A. explained that 

E.R.A. was dieting, did not want to eat, was very clingy, and had developed 

separation anxiety. M.A. also testified that E.R.A. no longer liked princesses or pink, 
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and her new favorite color was black. M.A. explained that J.B. does not have the 

same beliefs and values regarding how E.R.A. should be raised. According to M.A., 

she had concerns about the stability of J.B.’s relationships. 

C.A.’s father, J.A., testified that C.A. and M.A. have a good relationship with 

E.R.A., and they make decisions in her best interest. According to J.A., it would be 

in E.R.A.’s best interest for C.A. to have the right to designate E.R.A.’s primary 

residence, because C.A. offers a more stable environment. J.A. testified that E.R.A.’s 

demeanor has changed, and E.R.A. is scared to be alone and is very apologetic.

According to J.A., E.R.A. used to be “girly,” but she has become more concerned 

about her appearance and no longer likes school. 

Krystal Nunez, the principal of E.R.A.’s former school, testified that E.R.A.’s 

attendance was not abnormal, but she was often tardy. Nunez testified that she did 

not have any concerns about E.R.A., and she did not notice any changes in E.R.A.’s 

behavior or demeanor. According to Nunez, E.R.A. was well behaved and 

academically superior. Nunez also explained that she never had any concerns about 

J.B. 

Carrie Savoy, E.R.A.’s kindergarten teacher, testified that E.R.A. was a great 

student, but she had issues with E.R.A. talking and being disrespectful. Savoy 

testified that E.R.A. was more disruptive when she was with J.B., and after spending 
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time with C.A., E.R.A. was more obedient. According to Savoy, J.B. was concerned 

that she was having problems with E.R.A. 

N.A., J.B.’s sister, testified that J.B. and E.R.A. lived with her for 

approximately a year, and J.B. is a very loving and nurturing mother. N.A. testified 

that she did not have any concerns about E.R.A. living with J.B. and K.W. or moving 

to a new school in Houston. According to N.A., it was in E.R.A.’s best interest to 

remain with J.B. during the week. 

J.B. testified that after the divorce, she and E.R.A. lived with her boyfriend. 

J.B. explained that she moved out of the restricted area two years after the divorce 

to attend nursing school in Huntsville, where she lived with a roommate for 

approximately one year. J.B. testified that she never filed a signed, written agreement 

with the court to change the geographical restriction in the final decree, but C.A. 

agreed to the move. J.B. testified that she got engaged while she was living in 

Huntsville, but she never lived with her fiancé and he never spent the night when 

E.R.A. was home. J.B. explained that she ended the engagement after two years, 

moved to Conroe, and began dating K.W. J.B. testified that after two months of 

dating, K.W. began taking E.R.A. to school and eventually moved into the apartment 

J.B. shared with N.A. J.B. testified that K.W. is “pretty involved” in E.R.A.’s life 

and acts like a stepparent. According to J.B., K.W. and E.R.A. have a wonderful 

relationship. J.B. explained that E.R.A. was initially confused and asked questions 
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about J.B.’s relationship with K.W., and she talked to E.R.A. about same-sex 

marriages. 

According to J.B., C.A. did not disagree with her move to Conroe, and 

although their agreement ended when she graduated school, J.B. did not move back 

to the geographic area. J.B. further testified that she did not get C.A.’s agreement 

before moving to Houston and enrolling E.R.A. in a new school, but J.B. claimed 

that C.A. did not object to the move. J.B. also testified that she did not get C.A.’s 

approval regarding E.R.A.’s healthcare decisions. J.B. denied that she had prevented 

C.A. from speaking to E.R.A. on the telephone. J.B. explained that she is a registered 

nurse and works three days a week, usually on weekends when E.R.A is with C.A. 

According to J.B., it would not be in E.R.A.’s best interest for the court to designate 

C.A. as the conservator with the right to designate E.R.A.’s residence, because it 

would be detrimental for E.R.A. to have a drastic change of her residence and 

schedule. 

J.B. testified that, other than the current lawsuit, she and C.A. have a “pretty 

good relationship[]” and have not had much difficultly parenting E.R.A. J.B. further 

testified that E.R.A. is doing very well and enjoys her new school and extracurricular 

activities, and it would be in E.R.A.’s best interest for her to have the right to 

designate E.R.A.’s residence. J.B. testified that she has not noticed any persistent 

changes in E.R.A.’s demeanor, but she believes that E.R.A. is less well-behaved 
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during readjustment periods. K.W. also testified that she has not noticed any change 

in E.R.A.’s behavior, and she has a good relationship with E.R.A. 

After J.B. testified, C.A.’s counsel called Debra Santos as an impeachment 

witness, and J.B.’s counsel objected, arguing that Santos was not listed as a person 

with relevant knowledge. After C.A.’s counsel admitted that he had known about 

Santos’s impeachment testimony for a few weeks and had failed to file a motion for 

leave to disclose her late, the trial court sustained the objection. 

The trial court denied C.A.’s petition to modify the parent-child relationship 

in its entirety and granted J.B.’s counter-petition. The trial court appointed C.A. and 

J.B. as joint managing conservators of E.R.A. and ordered that J.B. had the exclusive 

right to designate E.R.A.’s primary residence within Harris County, Texas. In its 

findings of fact, the trial court found that there had “been a material and substantial 

change in the circumstances of the child and both conservators since the date of the 

divorce, and modification of the divorce decree would be in the best interest of the 

child.” The trial court found that since the divorce, J.B. had been E.R.A.’s primary 

caregiver, and that J.B. can provide a more stable home for E.R.A. and would “best 

provide for the child’s physical, psychological[,] and emotional needs and 

development, now and in the future.” The trial court further found that it was in the 

best interest of the child that J.B. be named as the conservator having the exclusive 
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right to designate the child’s primary residence. The trial court also found that the 

rights and duties awarded to each parent were in E.R.A.’s best interest. 

ANALYSIS 

In issue one, C.A. argues that the trial court abused its discretion by giving

J.B. the exclusive right to determine the primary residence of E.R.A., because the 

evidence is legally and factually insufficient. We review a trial court’s decision in a 

case concerning a modification of conservatorship under an abuse of discretion 

standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of 

M.A.M, 346 S.W.3d 10, 13 (Tex. App.—Dallas 2011, pet. denied). “The trial court 

is given wide latitude in determining the best interests of a minor child.” Gillespie, 

644 S.W.2d at 451. A trial court abuses its discretion when it acts arbitrarily or 

without reference to any guiding rules or principles. Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); In the Interest of M.A.M, 346 

S.W.3d at 13. “The question of conservatorship of a child is left to the sound 

discretion of the trial court when it sits as trier of fact.” Echols v. Olivarez, 85 S.W.3d 

475, 477 (Tex. App.—Austin 2002, no pet.). Because the trial court is in the best 

position to observe the demeanor of the witnesses and can “‘feel’ the forces, powers, 

and influences that cannot be discerned merely by reading the record[,]” we will not 

find an abuse of discretion as long as there is some evidence of substantive and 

probative character to support the trial court’s decision. Id. 
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In family law cases, the traditional sufficiency standard of review overlaps 

with the abuse of discretion standard; thus, legal and factual sufficiency are not 

independent grounds of error but are relevant factors in assessing whether the trial 

court had sufficient evidence to exercise its discretion. In the Interest of M.A.M, 346 

S.W.3d at 13. “This standard has been distilled into a two-pronged inquiry: (1) 

whether the trial court had sufficient information upon which to exercise its 

discretion; and (2) whether the trial court erred in its application of discretion.” Id.

at 14. The traditional sufficiency review is relevant with regard to determining 

whether the trial court had sufficient evidence to exercise its discretion. Id.; In the 

Interest of A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, pet. denied). The 

second part of the inquiry requires that we determine whether the trial court made a 

reasonable decision considering the evidence presented. In the Interest of M.M.M., 

307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.).

The child’s best interest is the trial court’s primary concern in determining 

issues of conservatorship, possession, and access. Tex. Fam. Code Ann. § 153.002.

We assess the trial court’s best-interest finding by using the Holley factors. See

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include

(1) the child’s desires; (2) the child’s current and future physical and emotional

needs; (3) any physical or emotional danger to the child now or in the future; (4) the

parental abilities of the individuals seeking custody; (5) the programs available to
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those individuals to promote the child’s best interest; (6) the plans for the child by

these individuals; (7) the stability of the home; (8) acts or omissions by a parent

tending to show that the existing parent-child relationship is not a proper one; and

(9) any excuse for the parent’s acts or omissions. Id.

The trial court heard conflicting evidence regarding the Holley factors with 

respect to conservatorship, possession, and access. See Holley, 544 S.W.2d at 371-

72. After hearing all the evidence and observing the witnesses, the trial court found 

that it was in E.R.A.’s best interest that C.A. and J.B. remain as joint managing 

conservators and that J.B. have the exclusive right to designate the child’s residence. 

Based on the evidence concerning all relevant factors at the time of the hearing, we 

conclude that some evidence of substantive and probative character supports the trial 

court’s decision. See Echols, 85 S.W.3d at 477. We further conclude that the trial 

court made a reasonable decision considering the evidence presented. See In the 

Interest of M.M.M., 307 S.W.3d at 849. Accordingly, we conclude that the trial court 

did not abuse its discretion by ordering the modification. See Gillespie, 644 S.W.2d 

at 451. We overrule issue one. 

In issue two, C.A. complains the trial court erred by not allowing the 

testimony of Santos as a rebuttal witness. We review the trial court’s decision to 

admit or exclude evidence for abuse of discretion. In the Interest of J.P.B., 180 

S.W.3d 570, 575 (Tex. 2005). 
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A party may obtain discovery of the name of persons who have knowledge of 

relevant facts when those persons have or may have knowledge of any discoverable 

matter. Tex. R. Civ. P. 192.3(c). A party may also obtain discovery of the name of 

any person who is expected to testify at trial, excluding rebuttal or impeaching 

witnesses, the necessity of whose testimony cannot reasonably be anticipated before 

trial. Tex. R. Civ. P. 192.3(d). A party who fails to timely make, amend, or 

supplement a discovery response may not offer testimony of a non-party witness 

who was not timely identified unless the court finds that (1) there was good cause 

for the failure to timely disclose or (2) the failure will not surprise or prejudice the 

other party. In the Interest of A.C., No. 02-18-00129-CV, 2018 WL 5273931, at *9 

(Tex. App.—Fort Worth Oct. 24, 2018, pet. denied) (mem. op.) (citing Tex. R. Civ. 

P. 193.6(a)). The burden of establishing good cause or the lack of surprise or unfair 

prejudice is on the party seeking to call the witness. Tex. R. Civ. P. 193.6(b). 

In his brief, C.A. argues that Santos’s testimony was material to the 

determination of the child’s best interest. As discussed above, the record reflects 

C.A. did not identify Santos in disclosures or interrogatories, and C.A.’s counsel 

admitted that despite knowing about Santos’s impeachment evidence for a few 

weeks before trial, he failed to file a motion for leave to disclose her late. Because 

the record shows that C.A. knew about the necessity of obtaining Santos’s testimony 

before trial and did not meet his burden of establishing good cause for his failure to 
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timely disclose, we conclude that the trial court did not err by excluding the 

testimony. See Tex. R. Civ. P. 192.3(d), 193.6(a), (b); In the Interest of A.C., 2018 

WL 5273931, at *9. Furthermore, we have already concluded that there is some 

evidence of substantive and probative character to support the trial court’s decision

to appoint J.B. as the conservator with the exclusive right to designate the child’s 

residence. See Echols, 85 S.W.3d at 477. Therefore, even if the trial court had erred,

C.A. did not demonstrate that the trial court’s exclusion of Santos’s testimony 

resulted in the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1). 

We overrule issue two. Having overruled each of C.A.’s issues, we affirm the trial 

court’s judgment. 

AFFIRMED.

_________________________

 W. SCOTT GOLEMON

 Chief Justice

Submitted on February 17, 2021

Opinion Delivered March 18, 2021

Before Golemon, C.J., Kreger and Johnson, JJ.