COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN THE INTEREST OF T.M.P. AND J.C.P., CHILDREN § § § § § § No. 08

- 11

- 00350

- CV

Appeal from 233rd District Court of Tarrant County, Texas (TC # 233

- 440576

- 08)

O P I N I O N This is an appeal from a trial court ’ s order in a s uit a ffecting the p arent

- c hild r elationship. The trial court denied Mother ’ s 1 motion to terminate Father ’ s parental rights to the children at issue , granted Father ’ s motio n to modif y rights of conservatorship, and ordered Mother to pay Father ’ s attorney ’ s fees in the amount of $25,000 . The trial court also found that Appellants interfered with the possessory rights of Appellee s, and held Mother and the maternal grandparent s jointly and severally liable for damages in the amount of $50,000. We affirm in part and reverse and render in part.

1 We identify the parties and witnesses by their familial role to the children both to protect the identity of the children and to clarify the conduct of various relatives. Where necessary, we collectively refer to Mother and her parents as Appellants and Father and his parents as Appellees.- 2

- FACTUAL SUM MARY On May 30, 2008, Mother filed for divorce in Tarrant County, Texas

. A n agreed final decree of divorce was signed o n August 14, 2009

. Mother and Father were named joint managing conservators of their two children, who were three years old and one year old at the time. Mother was awarded the exclusive right to establish the primary residence of the child ren without re gard to geographic location. By the time the decree was signed, Mother and the children had been living with her parents in S outh Carolina for approximately three months. The d ecree set out a specific sc hedule of Father ’ s possession and access. It a lso provided that Father ’ s parents were to fly to South Carolina to pick up the children at the beginning of each visitation period and accompany them back to Texas. Likewise, Mother and/or or t he maternal g randmother were ordered to fly to
Texas at the e nd of each visitation period and accompany the children back to South Carolina

. Father ’ s v isitation was to be supervis ed by c haperon e s approved by the Tarrant County Community Supervision and Corrections Department and the paternal grandparents had been so approved. 2
Visitation went as scheduled for the months of August, September and October of 2009

. 3 In November, M other refused to relinquish the children for Father ’ s visit ation which was scheduled to run from November 20 until November 26. Ac c ording to Mother, a few days after returning from t h e October visit, T.M.P. made an outcry of sexual abuse to her m aternal g reat
g randmother who reported it to Mother

. Mother and the m aternal g randmother both testified that

2 On January 11, 2008, Father pled guilty to agg ravated sexual assault of a child and was placed on deferred adjudication community supervisi on for a period of five years. The record is clear that this charge stemmed from s even incidents of sexual contact between Father and a fifteen

- year - old acquainta nce at the church where he worked as a janitor

. Father ’ s periods of possession to his own children had to be supervised as a condition of his community supervision.

3 In September 2009, Mother remarried. Mother ’ s new husband and his teen age son live d with Mother and her two children in a converted garage apartment on her parent ’ s property

.- 3

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they examined the child and noticed unusual redness on her bottom. Both women observ ed that T.M.P. rub bed her vaginal area “ back and forth, not common to what she ’ s ever done before. ”
B ased on the redness and the outcry, Mother and the m aternal g randmother began calling various authorities in both So uth Carolina and Texas to report their suspicions that Father had sexually abused the child

. As a result, T.M.P. was subjected to multiple physical examinations and forensic interviews, none of which resulted in a finding that any abuse had taken place. Father was required to submit to a polygraph examination in accordance with his conditions of probation , which he passed. Despite the fact that none of these investigations reveale d any evidence corro borating their suspicions of sexual abuse , Mother and the maternal g randmother refused to allow t he scheduled November visit. On November 19, t he night before the p aternal g randparents were to fly to South Carolina to pick up the children, Mother sent a n e - mail informing the m that she would not be surrendering the children for the November visitation because of recent allegations and suspicions of sexual abuse

. Th e p aternal g randparents flew to South Carolina anyway . When Mother did not meet them at the airport as ordered by the divorce decree , t he y rented a car and drove to Mother ’ s home. It i s undisputed that the children, Mother , and her p arents were all inside the house, but no one answered the door. At some point , the maternal grandfather called the sheriff and the paternal grandparents sought law enforcement assistance at the sheriff ’ s office . The sheriff told them tha t there was nothing he could do , and advised them to return to Texas. On November 24, Father filed a m otion for e nforcement. This was the first of many petitions filed by the parties , including : (1) a petition in intervention filed by the p aternal
g randparents; (2) claims by Father and his parents f or tortious interference with possessory- 4

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rights; (3) a petition by Mother to terminate visitation between the children, Father, and his parents; (3) a petition by Mother to terminate Father ’ s parental rights , 4 and (4) Father ’ s counter

petition seeking to d esignate the children ’ s primary residence as Tarrant and contiguous counties. A bench trial was conducted i n June 2011.
T he first matter considered was Mother ’ s petition to terminate Father ’ s parental rights. After M other and her parents testified , their attorney rested . Father moved for judgment on the termination issue and the trial court granted it. The court then addressed Father ’ s motion to modify and suit for tortious interference with his possessory rights. Father and his parents

-- who had been permitted to intervene

-- all testified

. After hearing t he evidence, the trial court entered orders denying Mother ’ s motion to terminate and motion to modify. Father ’ s motion to modify was granted, with the Mother and Father remaining as jo int managing conservators. Mother was granted the exclusive right to establish the domicile and primary residence of the children, limited to Tarrant County and contiguous counties. Father was awarded standard visitation which was to be supervised by his parents for as long as he continued on community supervision. Mother was ordered to deliver the children to the paternal grand parents until such time as Mother relocated to Texas. The court found that Mother and the maternal grandparents had violated Se ction 42 of the Texas Family Code, had intenti onally and knowingly interfered with Father ’ s and the paternal grandparents ’ possessory rights , and held them jointly and severally liable for damages in the amount of $50,000. Mother was also ordered to pay F ather ’ s attorney ’ s fees in the sum of $25,000. Mother and her parents appeal and we proceed without the benefit of findings of fact and conclusions of law.

4 Mother alleged as the basis for termination that Father (1) was not allowed access or possession of the children due to the terms of his probation violation; an d (2) had failed to support the children as ordered by the court. Mother admitted at trial that all child support was current and that the State had withdrawn its motion to revoke probation

.- 5

- MODIFICATION OF RESI DENCE RESTRICTIONS
In Issues One and Two , Mother claims the trial court erred in restricting the children ’ s primary residence to Tarrant and contig u ous counties because: (1) Father failed to establish a material and subs tantial change in circumstances; and (2) he failed to show that the modific ation was in the children ’ s best interest. Standard of Review A trial court may modify a conservatorship order if the petitioner proves by a preponderance of the evidence that: (1) the modification would be in the best interest of the child; and (2) th e circumstances of the child, a conservator, or other person affected by the order have materially and substantially c hanged since the date of the rendition of the prior order.
T EX .F AM .C ODE A NN
. § 156.101(West Supp. 2012). The best interests of the child ren must always be a court ’ s primary consideration when determining issues of conservatorship.
T EX .F AM .C ODE A NN
. § 153.002 (West 2008). In the context of residency restrictions, the primary goals are to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
T EX
. F AM .C ODE A NN
. § 153.001(a)(West 2008); see Lenz v. Lenz , 79 S.W.3d 10, 14 (Tex. 2002);
In re D.M.D. , No. 05

- 07

- 01045

- CV, 2009 WL 280465, at *3

- 4 (Tex.App.

-- Dallas Feb. 6, 2009, no pet.)(mem

. op.); Bates v. Tesar , 81 S.W.3d 411, 430 (Tex.App.

-- El Paso 2002, no pet.). We review a trial court ’ s decision to modify a conservatorship order for a clear abuse of discretion

. Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982); In re M.A.M. , 346 S.W.3d- 6

-

10, 13 (Tex.App.

-- Dallas 2011, pet. denied)

. A trial court abuses its discretion when it acts arbitrar il y or unreasonably, without ref erence to any guiding principles , or when it fails to correctly analyze the law

. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ; In re W.C.B. , 337 S.W.3d 510, 513 (Tex.App.

-- Dallas 2011 no pet.)

. In family law cases, the abuse of discretion standard of review overlaps with traditional sufficiency standards of review. In re W.C.B. , 337 S.W.3d at 513, citing In re A.B.P ., 291 S.W.3d 91, 95 (Tex.App.

-- Dallas 2009, no pet.). As a result, l egal and fa ctual sufficiency are not independent grounds of error in modification cases, but instead are relevant factors in assessing whether the trial court abused its discretion. In re T.D.C. , 91 S.W.3d 865, 872 (Tex.App.

-- Ft. Worth 2002, pet. denied)

. To determ ine whether the trial court has abused its discretion, we engage in 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. See In re C.A.M.M. , 243 S.W.3d 211, 220 (Tex.App.

-- Houston [14th Dist.] 2007, pet. denied), citing Zeifman v. Michels , 212 S.W.3d 582, 587

- 88 (Tex.App.

-- Austin 2006, pet. denied); Vardilos v. Vardilos , 219 S.W.3d 920, 921 (Tex.App.

-- Dallas 2007, no pet.) ; Echols v. Olivarez , 85 S.W.3d 475, 477

- 78 (Tex.App.

-- Austin 2002, no pet.); Lindsey v. Lindsey , 965 S.W.2d 589, 592 (Tex.App.

-- El Paso 1998, no pet.). The operative inquiry in the first question is the sufficiency of the evidence. In re A.B.P ., 291 S.W .3d 91, 95 (Tex.App.

-- Dallas 2009, no pet.). We must then decid e whether, based on the elicited evidence, the trial court made a reasonable decision. Moroch v. Collins , 174 S.W.3d 849, 85 7 (Tex.App.

-- Dallas 2005, pet. denied)

. Whe re , as here, the trial court does not file findings of fact and conclusions of law, we imply all necessary findings of fact to support the trial court ’ s order. BMC Software Belgium,- 7

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N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002); In re W.C.B. , 337 S.W.3d at 513, citing Waltenburg v. Waltenburg , 270 S.W .3d 308, 312 (Tex.App.

-- Dallas 2008, not pet

. ). When the appellate record includes a reporter ’ s record, the trial court ’ s implied findings may be challenged for legal and factual sufficiency. In re W.C.B. , 337 S.W.3d at 513 ; Zeifman v. Michels , 212 S.W.3d 582, 588 (Tex.App.

-- Austin 2006, pet. denied), citing Vickery v. Commission for Lawyer Discipline , 5 S.W.3d 241, 251 (Tex.App.

-- Houston [14th Dist.] 1999, pet. denied)

. In determining whether there is legally sufficient evidence, we consider the evidence in the light most favorable to the finding if a reasonable fact finder could, and disregard evidence contrary to the finding unless a reasonable fact finder could not. C ity of Keller v. Wilson , 168 S.W.3d 80 2, 807 (Tex. 2005) ; In re S.E.K. , 294 S.W.3d 926, 930 (Tex.App.

-- Dallas 2009 pet. denied)

. When reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, and will set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See City of Keller , 168 S.W.3d at 822; Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406

- 07 (Tex. 1998); Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). When the evidence is conflicting, we must presume that the fact

- finder resolved the inconsistency in favor of the order if a reaso nable person could do so. See City of Keller , 168 S.W.3d. at 821. The trial court does not abuse i ts discretion if evidence of a substantive and probative character exists to support its decision. In re J.C. , 346 S.W.3d 189, 193 (Tex.App.

-- Houston [14th Dist

. ] 2011, no pet.), citing In re C.A.M.M. , 243 S.W.3d at 214; Valdez v. Valdez , 930 S.W.2d 725, 731 (Tex.App.

-- Houston [1st Dist.] 1996, no writ). The trial court is in the best position to observe the witnesses and their demeanor, and we give the court great latitude when determining the best interest of a child. In re W.C.B. , 337 S.W.3d at 513, c iting In re S.E.K. , 294 S.W.3d at 930. Accordingly, the mere fact that the appellate court- 8

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might decide the issue differently than the trial court does not establish an abuse of discretion.
Downer , 701 S.W.2d at 242; Zeifman , 212 S.W.3d at 587.

Material and Substantial Change in C ircumstances In a modification suit, the threshold inquiry is whether the moving party has met the burden of demonstrat ing a material and substantial change

. Bates v. Tesar , 81 S.W.3d 411, 427 (Tex.App.

-- El Paso 2002, no pet.). In considering whether a change of circumstances has occurred, the trial court compares the evidence of the conditions that existed at the time of the entry of the prior order with the evidence of the conditions that existed at the time of the hearing

on the petition to modify. In re W.C.B. , 337 S.W.3d at 514, citing In re A.B.P. , 291 S.W.3d 91, 95 (Tex.App.

-- Dallas 2009, no pet.) and In re C.C.J. , 244 S.W.3d 911, 919 (Tex.App.

-- Dallas 2008, no pet.). Whether a change in residency is a material and subs tantial change of circumstances depends on the facts of the case. See Lenz , 79 S.W.3d at 17

- 18; In re D .M.D. , 2009 WL 280465, at *3

- 4 ; see also , 212 S.W.3d at 593 In other words, a fact finder is not confined to rigid or definite guidelines; instead, the determination is fact specific and must be made according to the circumstances as they arise. In re A.L.E. , 279 S.W.3d at 428. Material changes may include (1) the marriage of on e of the parties, (2) poisoning of a child ’ s mind by one of the parties, (3) change in the home surroundings, (4) mistreatment of a child by a parent or step

- parent, or (5) a parent ’ s becoming an improper person to exercise custody. Id. at 429. Such chan ge in circumstances may be established by either direct or circumstantial evidence. In re A.L.E. , 279 S.W.3d at 429. Mother contends that a “ mere allegati on of sexual misconduct between [Father] and
T.M.P. ” does not rise to the level of a material and substantial change in circumstances. But t he record is not so limited and the trial court heard much more. There was extensive testimony- 9

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demonstrating that Mother and the m aternal g randmother continued to call aut horities and subject ed T.M.P. to repeated physical examinations and interviews, even after they had been told by multiple professionals that the ac cusations of sexual abuse were not credible. The S outhlake, Texas, police department decided not to bring cr iminal charges , as did the Dallas County District Attorney ’ s Office

. There were persistent efforts to have Father ’ s probation revoked. At one point, the State of Texas did file a petition to revoke but it was subsequently withdrawn and no revocation ever occurred

. T he trial court heard testimony that one of Mother ’ s motives was to have Father arrested and his probation revoked so she could obtain either sole managing conservatorship or termination of Father ’ s parental rights. Ther e was also testimony concerning attempts by Mother and her parents to engage in parental alienation. Father agreed with the finding of the social study that the maternal grandmother had “ spearheaded this crusade

. ” He and his parents expressed concern tha t for as long as the children lived in South Carolina, there would be continued efforts by Appellant s to interfere with visitation or pursue other criminal complaints. Appellants believe d Mother ’ s husband should adopt these two little children. He has be en married twice previously, has custody of his teenage son but no relationship with his
ten

- year - old daughter in Michigan. He also has “ a little something ” of a legal problem with previous incidents of domestic violence. In the end, Mother testified tha t Father was not a bad parent; she even acknowledged that she would allow him to have supervised visit ation with the children following termination provided he traveled to South Carolina and paid for his transportation

. T he trial judge was free to judge th e credibility of the witnesses. B ased on the evidence,
t he trial court could have reasonably found that Appellants actively engaged in a course of conduct designed to prevent the children from favorably associating with Appellees. Because a- 10

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reasonable and fair minded jurist could have found a material and substantial change in circumstances sufficient to warrant modification of the prior order , we overrule Issue One

. T he Best Interests of the Children The next question is whether the trial c ourt ’ s decision to restrict Mother ’ s right to designate the children ’ s primary residence was in the ir best interests. By her second issue, Mother claims that the trial court abused its discretion by requiring the children to return to
Texa s . In reviewi ng issues of best interest, Texas appellate courts look to the non

- exhaustive list of factors articulated in Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976). The “ Holley ” factors include: (1) the desires of the child; (2) the emotional and physical n eeds of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best int erest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent

child relationsh ip is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley , 544 S.W.2d at 371

- 7 2; In re T.D.C. , 91 S.W.3d 865, 873 (Tex.App.

-- Fort Worth 2002,
no pe t

. )

. When the trial court ’ s decision involves relocation issues, the Texas Supreme Court has identified the following additional factors: (1) the relationship with and presence of extended family; (2) the presence of friends; (3) the presence of a stable and supportive environment; (4) the custodial parent ’ s improved financial situation and ability to provide a better standard of living for the child; (5) the positive impact on the custodial parent ’ s emotional and mental state, with beneficial results to the child; (6) the noncustodial parent ’ s right to have regular and- 11

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meaningf ul contact; (7) the ability of the noncustodial parent to relocate; and (8) the ability of the noncustodial parent to adapt his work schedule to the child. Lenz. v. Lenz , 79 S.W.3d 10, 15

- 18 (Tex. 2002). Other factors the courts may also consider include the child ’ s stability and the need to prevent constant litigation in child custody cases. In re V.L.K. , 24 S.W.3d 338, 343 (Tex. 2000). First, we look to the effect the residency restriction would have up on the children ’ s extended family relationships a nd their ability to bond and communicat e with their f ather. Mother worked as a hairdresser in South Carolina and lived rent free with her children, her new husband and her step

- son in a converted garage apartment on her parent ’ s property

. Her brother,
t h e m aternal g randparents , and the maternal great grandmother all lived in different homes on the same property , wh ich the grandfather described as a 23

- acre “ compound

. ” Mother argues that the children are thriving in South Carolina and that t here was no clear indication that she or her husband would be able to locate suitable employment or housing in Texas. While Mother recognize s that moving to Texas may improve the children ’ s relationships with their f ather and
p aternal g randparents, she co ntends this would come at the expense of the children ’ s relationships with their maternal g randparents to who m they have become attached . It is certainly true that while living in South Carolina, the c hildren had frequent contac t with Mother ’ s extended fa mily, and that such contact would inevitably be diminished by relocating to
Texas. On the other hand , moving the children to Texas would improve the children ’ s relationship with the Father and his extended family. A nd while Mother did not know whether sh e could find employment in Texas, Father was unable to relocate to South Carolina due to the terms of his probation.- 12

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In conducting our review, we must concentrate on the general quality of life of the children and assess whether the proposed change woul d be positive and in the child ren ’ s best interest. Here, the trial court heard evidence that within three months of the divorce , Mother had remarried, engaged in efforts to rid herself of the children ’ s father and to pave the way for a step

parent adoptio n. In the process, she subjected T.M.P

. to numerous interviews, doctor ’ s visits and therapists. D espite the fact that every investigation ruled out the allegations of sexual abuse, Mother and the maternal g randmother repeatedly called authorities in South Carolina and Texas asking questions about the terms of Father ’ s probation and reporting their suspicions of sexual abuse. T he trial court believed the testimony of Father and his parents that this course of conduct was not only harmful to T.M.P. but designed to alienate the children from their Father and his side of the family. In fact, a t the conclusion of the hearing, the trial judge specifically announced his finding “ t hat the actions of [Mother] and [ m aternal g randmother] have been detrimental t o the best interest of the children subject of this suit. ” The trial court was in the best position to observe the demeanor and personalities of the witnesses and c ould feel the forces, powers, and influences that cannot be discerned by merely reading t he record. Bates v. Tesar , 81 S.W.3d 420, 424 (Tex.App.

-- El Paso 2002, no pet.)

. Thus, trial courts do not abuse their discretion so long as some evidence of a substantive and probative character exists to support the trial court ’ s decision. Jenkins v. Jenkins , 16 S.W.3d 473, 477 (Tex.App.

-- El Paso 2000, no pet.). We conclude that the evidence is legally and factually sufficient to support the trial court ’ s determination that restricting Mother ’ s ability to designate the children ’ s primary residence was in the best interest of the children. Issue Two is overruled.- 13

- INTERFERENCE WITH PO SSESSORY RIGHTS The remaining issues on appeal attack t he trial court ’ s judgment with respect to Appellees ’ claims for interference with possessory rights. The trial court found that Mother and her parents “ intentionally and knowingly interfered with the possessory rights of [Father] and the supervisory rights of [ p aternal grandparents]

. ” [E mphasis added ]

. A ppellees were awarded damages of $50,000 for tortious interference

.

Subject Matter Jurisdiction
- Standing of Paternal Grandparents
In Mother ’ s Issue Three and Maternal G randparents ’ Issue One , the Appellants present identical issues challenging the tri al court ’ s subject matter jurisdiction. Specifically, t he y contend that the p aternal g randparents had no possessory rights and therefore lacked standing to file suit under Chapter 42 of the Texas Family Code. Standard of Review Standing is a threshold issue. In re Y.B. , 300 S.W.3d 1, 4 (Tex.Ap p. -- San Antonio 2009, pet. denied), citing In re S.S.J.

- J. , 153 S.W.3d 132, 134 (Tex.App.

-- San Antonio 2004, no pet.)

. It is not merely a statutory bar, but is a component of subject

- matter jurisdiction. In re H .G. , 267 S.W.3d 120, 124 (Tex.App.

-- San Antonio 2008, pet. denied), citing Tex. Ass ’ n of Bus. v. Tex. Air Control Bd. , 85 2 S.W.2d 440, 444

- 45 (Tex. 1993)

. If a party lacks standing, the trial court is deprived of subject

- matter jurisdiction. H.G. , 267 S. W.3d at 124. A ny action a court takes without subject matter jurisdiction is void. H.G. , 267 S.W.3d at 124, citing Mapco, Inc. v.
Forrest , 795 S.W.2d 700, 703 (Tex. 1990)

.

Did the Paternal Grandparents Have Possessory Rights? Chapter 42 of the Texas Fa mily Code establishes a statutory cause of action for damages against: (1) a person who takes or retains possession of a child in violation of a possessory right- 14

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of another person; and (2) a person who aids or assists t he person in such conduct.
T EX .F AM .C ODE A NN
. §§ 42.002, 42.003, 42.006 (West 2008). “ Possessory r ight ” is defined in Section 42.001 as “ a court

- ordered right of possession of or access to a child, including conservatorship, custody, and visitation. ” T EX .F AM .C ODE A NN
. § 42.001(b)( West 2008). It is abundantly clear from the final decree of divorce that t he p aternal g randparents never had a court

- ordered right to access or possession . In fact, it specified to the contrary : THIS VISITATION ORDER IS NOT TO BE CONSTRUED AS GRANTING GRANDPARENT ’ S VISITATION RIGHTS OR ANY TYPE OF CONSERVATIVE RIGHTS. The role of the p aternal g randparents was merely to supervise Fat her ’ s visits with the children and facilitate transportation between Texas and South Carolina. The y do not acknowledge this limitation in the order and focus instead on the fact that since “ access ” is not defined within the applicable Family Code provision s , we must look elsewhere for definitions

. They direct us to
t wo dictionary def

initions: (1) the right or opportunit y to approach or see someone; and (2) permission, liberty, or ability to enter, approach, or pass to and from a place or to approach or communicate with a person or thing. From this, they infer that as chap e rones, they were granted

“ access . ” We conclude that while the y were certainly facilitators of Father ’ s possessory rights , they were granted no independent right s. Because they lack standing to bring a suit for tortious interference , they are not entitled to recover damages

. We thus su stain Mother ’ s Issue Three and Maternal Grandparents ’ Issue On e . W e reverse the damage award in favor of the paternal grandparents and render judgment that they take nothing.

Damages Awarded for Interference with Possessory Rights Finally, in Mother ’ s Issue Four and Maternal Grandparents ’ Issue Two, Appellants argue that the trial court erred in awarding damages of $50,000 for interference with possessory rights

.- 15

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Because we have decided that the p aternal g randparents lacked standing, they cannot recover damages. We thus sustain Maternal Grandparents ’ Issue Two. We turn now to the damages awarded to Father. Appellants admitted their conduct at trial and do not appeal the issue of liability. The question remaining is whether sufficient evidence support s a $50,000 awa rd to Father based on his tortious interference c laim. This question is further complicated by the fact that Father was also awarded $25,000 in attorney ’ s fees , costs and expenses in defending against Mother ’ s suit

. Appellants have not challenged the fee award, but attorney ’ s fees are a consideration in the damage award.
T he Texas Family Code provides for damages in a tortious interference case: (a) Damages may include: (1) the actual costs and expenses incurred, including attorney ’ s fees, in: (A) locat ing a child who is the subject of the order; (B) recovering possession of the child if the petitioner is entitled to possession; and (C) enforcing the order and prosecuting the suit; and (2) mental suffering and anguish incurred by the plaintiff because of a violation of the order. (b) A person liable for damages who acted with malice or with an intent to cause harm to the plaintiff may be liable for exemplary damages. T EX .F AM .C ODE A NN
. § 42.006 (West 2008). Appellants complain that there was insufficient evidence to demonstrate they acted with malice or intent to harm, which is a requirement for an award of exemplary damages. The trial court made a finding of bad faith, but not a finding of actual malice . I t also found that Appellants knowingly and intentionally interfered with Father ’ s possessory rights, but made no- 16

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finding concerning an intent to cause harm, though one could certainly be inferred from the testimony. A ppellants also correctly note that the re wa s no evidence of Father ’ s mental anguish or evidence relating to the cost of locating and recovering the children such as the employment of attorneys in South Carolina or private investigators. 5 Finally, Appellants contend that if the $50,000 was bas ed on actual costs , expenses, and attorney ’ s fees incurred by Father, the trial court still abused its discretion because the fees related to the tortious interference c laims were not properly segregated from fees related to the other conservatorship issue s . I n passim , they allege that if the $50,000 damage award relates only to attorney ’ s fees, double dipping has occurred since Father additionally recovered $25,000 in fees. We address these two specific complaints. By letter dated June 15, 2011, the trial court notified the parties as follows: 5. [Father] is awarded attorney ’ s fees in the amount of $25,000 over and against [Mother] for the defense of the allegations contained in the First Amended Original Petition to Terminate the Parent

- Child Relatio nship and the Petition to Modify Parent

Child Relationship and the protection of his parental rights. The court finds that such fees were necessary for the protection of the children subject of this proceeding.
6. The court finds that [ Appellants ] have i ntentionally and knowingly interfered with the possessory rights of [ Appellees ]. As a result of this interference with their possessory rights, [ Appellees ] have suffered damages in the amount of $50,000. As such, [ Appellees ] are awarded judgment over and against [ Appellants ], jointly and severally, in the amount of $50,000. The order entered tracks this ruling. We can thus glean that the $25,000 fee award
related to Mother ’ s initial attempt to eliminate all visitation and her subsequent attempt to
ter minate Father ’ s parental rights. The $50,000 damage award was predicated on tortious interference with Father ’ s possessory rights. Appellants ’ actions necessitated litigation in Texas on the issue of restricting the children ’ s residence to Tarrant County and contiguous counties.

5 Father did not employ a private investigator but Mother did. The record describes a video of Father ’ s sister ’ s boyfriend walking with the children. This video was provided by Mother to the Dallas County District Attorney ’ s Office to demonstrate that Father was with the children without the supervision of his pare nts. This much she admits , but s he claims that prosecutors were told upfront that the man in the video was not Father. Father claimed that the correct identity of the man was not provided until long after the fact

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Father prevailed on this request. We also know from the record that the paternal grandparents had independent counsel, meaning that Father ’ s attorney ’ s fees did not include any time expended in their representation. We also kno w that Father ’ s attorney in this litigation did not handle any of the criminal defense work necessary to defend against Mother ’ s sexual abuse allegations. What was the evidence on attorney ’ s fees? First and foremost, by Rule 11 agreement, the parties st ipulated as to the amount of Father ’ s attorney ’ s fees. C ounsel ’ s case ledger was admitted into evidence, showing total fees and ex penses of $134,034.82. Neither Mother nor the maternal g randparents objected to opposing counsel ’ s billings n or admission of the exhibit

. S tipulations of fact are binding on the parties. Panther Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist

. , 234 S.W.3d 809, 811 (Tex.App.

-- Dallas 2007, pet. denied). There was no request that the trial court order counsel to segregate the fees , no objection that the fees had not been segregated, and no complaint in the motion for new trial

. But Texas jurisprudence has required segregation in accordance with “ the American Rule ” : For more than a century, Texas law has not allowed recovery of attorney ’ s fees unless authorized by statute or contract. This rule is so venerable and ubiquitous in American courts it is known as “ the American Rule. ” A bsent a contract or statute, trial courts do not have inherent authority to require a losing party to pay the prevailing party ’ s fees. As a result, fee claimants have always been required to segregate fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors v. Chapa, 212 S.W.3d 299 , 310

- 311 (Tex. 2006). Segregation was not required here because Father was entitled to attorney ’ s fees in the suit affecting parent

- child

re lationship 6 and the suit for tortious interference with possessory rights 7

. Because the statutory damage award of $50,000 may include attorney ’ s fees, the evidence supports an award of

6 T EX .F AM .C ODE § 106.002(a) (West 2008 )

.
7 T EX .F AM .C ODE § 42.006(a)(1) (West 2008 )

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$75,000 (the $50,000 damage award and the $25,000 fee award) because the total fees incurred were far more than the sums awarded. We overrule Mother ’ s Issue Four and Maternal Grandpar ents ’ Issue Two

. We reverse and render the money judgment in favor of the paternal grandparents and affirm t he remainder of the trial court ’ s order

. August 28 , 2013 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Rodriguez, JJ.