In the Interest of G.J.G. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00396-CV
__________________

IN THE INTEREST OF G.J.G.

__________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 18-11-14466-CV
__________________________________________________________________

MEMORANDUM OPINION

Less than two years after they divorced, G.J.G.’s mother filed a

petition to modify the joint managing conservatorship provisions in a

Final Decree of Divorce (the Decree), which controls her rights of

possession and access to her son, whom we shall call Guy. 1 Following a

trial to the bench, the trial court signed an order denying Mother’s

petition, and Mother appealed. 2

1A pseudonym. See Tex. Fam. Code Ann. § 109.002(d).
2Father did not appeal.

1
Mother raises two issues in her appeal. In Mother’s first issue, she

argues the trial court erred in finding that the circumstances of the child,

a conservator, or other party affected by the provisions that established

Guy’s conservatorship have not materially and substantially changed

since the trial court signed the Decree on January 4, 2019. In Mother’s

second issue, she argues the trial court erred when the court sustained

an objection to a question that her attorney asked Father about his plans

for Guy. 3 We conclude that Mother’s first issue lacks merit and that her

second issue wasn’t properly preserved for our review. For the reasons

explained below, we will affirm.

Background

The trial on Mother’s petition to modify occurred in September

2021. In the proceedings that led to this appeal, Mother wasn’t the only

one who wanted to have the joint custody arrangement that the 2019

Decree created modified. The record shows that Father responded to

Mother’s petition to modify by filing a counterpetition to modify the

Decree. In their respective petitions, both parties asked that the trial

court name them as the person with the right to designate Guy’s primary

3See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

2
residence. Additionally, Mother asked that the trial court modify several

of the custodial provisions in the Decree by awarding her the exclusive

right to consent to Guy’s medical treatment and make decisions about

how he should be educated. Mother also asked that the trial court modify

the 2019 Decree to require Father to pay child support. For his part,

Father’s petition asked that the trial court alter the custodial provisions

in the 2019 Decree by giving him the exclusive right to consent to Guy’s

medical treatment and the exclusive right to decide how Guy should be

educated. Father’s petition also asked that the trial court modify the

Decree by basing the parties’ possessory rights on the right in a standard

possession order.

Six witnesses testified in the hearing the trial court conducted in

September 2021 on Mother’s and Father’s respective petitions to modify

the conservatorship provision in the 2019 Decree: (1) Mother; (2) Father;

(3) Sheryl—who taught Guy in kindergarten; (4) Lisa—Guy’s teacher at

LearningRX, who testified the facility is a “cognitive brain training

center” that “works with the underlying reasons for children through

adults who struggle with learning comprehending, understanding, the

3
process of information and how that happens in the brain[;]” (5) John—

Mother’s current husband; and (6) Bob—Guy’s grandfather. 4

At trial, the evidence Mother elicited from the witnesses focused on

Mother’s request that the court modify the Decree by giving her the

exclusive right to decide how Guy should be educated rather than

requiring those decisions to continue to be made jointly with Guy’s father.

During the trial, Mother argued the trial court should award her the

exclusive right to make decisions about Guy’s education because she is

the parent who is more involved in helping Guy with his homework.

According to Mother, she is the parent who follows up and makes sure

that Guy gets his homework completed. Mother testified that she thought

the Decree needed to be changed “because there is no clear delineation of

any type of decision-making regarding [Guy’s] education.” When her

attorney asked her why she thought the current provision requiring the

parties to jointly decide how Guy should be educated should be changed,

Mother said: “Because I have been an active party in his education.”

4John and Bob are pseudonyms. See Tex. Fam. Code Ann. §
109.002(d).
4
When Mother explained how she had played an active role in Guy’s

education, Mother testified that around five months before the trial, she

had enrolled Guy in a program called LearningRx. Mother explained that

she did so because in her opinion “traditional methods were not working

through the year.” According to Mother, Father felt “indifferent” about

the program. Mother explained that Father thought the fact Guy was

progressing more slowly than others could be attributed to the fact that

he was one of the younger children in his class. Mother testified that she

disagreed with Father. Mother described Father’s attitude about her

decision to enroll Guy in LearningRX, which she explained were extra

classes that Guy took in addition to attending kindergarten, as

“indifferent.” According to Mother, Father “reported that he does not feel

it is necessarily helping [guy] or that . . . [Guy] doesn’t need to go or that

[Guy’s] not enjoying going.” Still, Mother acknowledged that when

Father has possession of Guy, he takes Guy to his sessions at

LearningRx.

Lisa, who owns LearningRx, testified that when Mother brings Guy

to his appointments, Guy “seems to be very together. He comes in ready

to work.” In her opinion, Guy has made progress since enrolling in classes

5
at Learning RX. When she was asked about how Guy acts when Father

brings him to class there, Lisa testified that Guy “wants to go play and

he wants to talk about everything except what he’s there to do.” On cross-

examination, Lisa agreed that Mother and Father have consistently

brought Guy to his appointments at LearningRX, and she said that Guy

hasn’t had many, if any, absences. Lisa also testified that when Father

brings him, Father “is supportive verbally for sure.” No one asked Lisa if

she knew anything about the terms of Guy’s joint conservatorship or

whether she thought changing them might affect Guy.

Sheryl, Guy’s kindergarten teacher testified that she has “forty-

plus years” experience teaching kindergarten. Sheryl said that based on

her experience, boys are more prone to progress slower in school,

especially in their younger years. According to Sheryl, Guy was one of the

youngest students that she had in her class.

When asked about Guy, Sheryl testified that Guy “had some

learning difficulties” when she had him as a teacher last year. 5 Sheryl

recalled that Guy had some problems remembering letters, with sounds,

5By the context of Sheryl’s testimony, we assume Sheryl was
referring to the September 2020-May 2021 school year, but she wasn’t
specifically asked about the year she had Guy in her class.
6
reading, and math. According to Sheryl, she talked with Mother and

Father several times about Guy’s issues. By Sheryl’s account, Mother and

Father were both receptive and active in Guy’s education. Sheryl testified

that Father attended most of Guy’s school events and conferences. And

Sheryl said that Father was just as active as Mother in Guy’s education.

As Sheryl saw it, Sheryl testified that Mother and Father both wanted

what was in Guy’s best interest.

Mother’s attorney asked Sheryl whether she knew that Mother had

enrolled Guy at LearningRX. Sheryl testified that she was aware Mother

had enrolled Guy there. According to Sheryl, Guy’s reading skills didn’t

improve after he was enrolled in classes at LearningRX. But Sheryl

agreed that she noticed that by the end of the school year, Guy could

count to a hundred.

When Mother testified, she said the reason she thought the existing

conservatorship order needed to be changed was because “there is no

clear delineation of any type of decision-making regarding Guy’s

education.” According to Mother, when Guy was with her, she helped him

with his homework on a more consistent basis compared to Father. She

testified: “I was consistent with doing them and there was a consistency

7
where they were not done during [Father’s] time.” Mother also testified

that she wanted Guy vaccinated against COVID-19, while Father was

against having Guy take the vaccine. Mother also complained that

Father failed to enroll Guy in any extracurricular activities, while she

had taken the initiative to enroll Guy in a program for summer camp.

Even though Mother criticized Father, Mother conceded that Guy

loves Father and enjoys being with him. Yet Mother would not concede

that she and Father are equally good parents. But on cross-examination,

she agreed that Father is active in Guy’s life and provides Guy a safe and

stable home. She also conceded that Father attended most of the parent-

teacher conferences that occurred at Guy’s school. She also agreed that

Father offered to have Guy psychologically tested. But according to

Mother, Guy’s problem is “an educational problem,” not “a psychological

issue.”

Father’s attorney brought out the fact that since Mother and Father

divorced, Mother has remarried, and she has had arguments with her

current spouse. On cross-examination, Mother conceded that after her

divorce from Father she remarried, and since remarrying she has called

Father twice late at night and asked Father to pick her up from her house

8
after she and her spouse have argued. According to Mother, she called

Father because it was “where I felt the safest place to be at that time

where I could go and just not have to deal with an argument.” Mother

also admitted that her spouse has been gone from home for about a month

but that now he is “back home to his parents’ house or his mom’s house

in Dallas.”

When Father testified, he explained that he planned for Guy to

continue to go to school, to continue to take the extra classes at Learning

RX, and to continue with his extracurricular activities. During the

upcoming year, Father said that he had plans to take Guy camping, to

the beach, to take him fishing, and to take Guy to car shows. Father

testified that his plans for Guy included other outdoor activities too.

As to Father’s involvement in Guy’s education, Father testified that

in the past year he attended Guy’s graduation from kindergarten. Father

also testified that he had attended several parent-teacher events.

According to Father, he was “very involved” when Guy was in

kindergarten, and he is now involved with Guy in first grade. Father

explained that he has no plans to enroll Guy in a different school, and

that he personally has no plans to move or relocate. Father testified that

9
when Guy is with him and they are home, he spends time with Guy using

educational aids like triangles, squares, money, and flash cards.

Father testified that he wanted Guy to be “tested for other focus-

oriented, you know, behaviors and disabilities.” In January 2021, Father

explained that he met with healthcare professionals at a health and

wellness treatment center to learn about an evaluation for children who

have disabilities. Father said he made the appointment with the

treatment center after Guy’s kindergarten teacher called him and

discussed her concerns about Guy’s progress in kindergarten. Father

explained that he didn’t know whether Guy’s school had recommended

that Guy be tested for disabilities.

Father confirmed that in February 2021, he picked Mother up from

her house after Mother had called and said that she and her husband had

argued. According to Father, “the general consensus of it was that she

was in duress.” Father testified Mother was “anxious” but she was quiet

and didn’t say what was wrong when he took her to his home. Father also

testified that Mother also called him several times one evening in July

2021 and told him that she was arguing with her spouse. When asked if

he had concerns about the stability of Mother’s home, Father responded,

10
“Absolutely.” Even so, Father testified that he believes Mother is a “good

mom.”

When John (Mother’s husband) testified in the trial, he admitted

that he and Mother had on occasion argued. John explained that on at

least one or two of those occasions, Mother left the house to “de-escalate

the situation.” John said that during the pandemic he lost his job, so he

moved out of the house “for his mental health” because he “felt like [he]

was letting the family down.” Yet John testified that once he got a job, he

“came back and we’ve been a happy family since then.”

Bob (Guy’s grandfather) testified that typically, he sees Guy once a

month. Bob described Mother (his daughter) as a loving and kind parent

who wants “to make sure that he gets the best that he can.”

When the hearing ended, the trial court denied Mother’s petition

and Father’s counterpetition to modify the parent-child relationship. At

Mother’s request, the trial court filed Findings of Fact and Conclusions

of Law. In its findings of facts and conclusions of law, the trial court

found:

[T]he circumstances of the child, a conservator, or other party
affected by the Decree of Divorce have not materially and
substantially changed since the date of the rendition of
[conservatorship provision in the 2019 Decree]. The Court

11
also did not find that modifying the Decree of Divorce was in
the child’s best interest.

Standard of Review

We use an abuse of discretion standard to review a ruling

challenging an order establishing a joint managing conservatorship.6 A

trial court abuses its discretion if it acts arbitrarily or without reference

to any guiding rules or principles. 7 “In determining whether a trial court

abused its discretion, we view the evidence in the light most favorable to

the trial court’s decision and indulge every legal presumption in favor of

the judgment.” 8 We will reverse the trial court’s judgment only when it

appears from the record as a whole that the trial court has abused its

discretion. 9

“The trial court is given wide latitude in determining the best

interest of a minor child.” 10 “The question of conservatorship of a child is

6In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982).
7Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985); In the Interest of M.A.M., 346 S.W.3d 10, 13 (Tex. App.—
Dallas 2011, pet. denied).
8See In re W.J.B., 294 S.W.3d 873, 878 (Tex. App.—Beaumont 2009,

no pet.) (cleaned up).
9See In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021).
10Gillespie, 644. S.W.2d at 451.

12
left to the sound discretion of the trial court when it sits as trier of fact.”11

“The trial court is in the best position to observe the demeanor and

personalities of the witnesses and can ‘feel’ the forces, powers, and

influences that cannot be discerned by merely reading the record.”12

Therefore, as the factfinder the trial court may “reject the uncontroverted

testimony of an interested witness unless it is readily controvertible, it is

clear, positive, direct, and there are no circumstances tending to discredit

or impeach it.” 13 Finally, when the evidence admitted in the trial

conflicts, the reviewing court must presume the factfinder resolved the

inconsistencies in a way that favors the prevailing party, and the

reviewing court must disregard the conflicting evidence when conducting

its legal sufficiency review. 14

“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

11Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002,

no pet.).
12Id.
13In re Jane Doe 4, 19 S.W.3d 322, 325 (Tex. 2000).
14See City of Keller v. Wilson, 168 S.W.3d 892, 822 (Tex. 2005).

13
discretion.” 15 “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.” 16 The second part of the inquiry requires the

reviewing court to determine whether the trial court made a reasonable

decision after considering the evidence presented. 17

Analysis

The Petition to Modify Guy’s Conservatorship

In Mother’s first issue, she argues the trial court erred in finding

that the circumstances of the child, a conservator, or other party affected

by the conservatorship orders, which the trial court included in the 2019

Decree, have not materially and substantially changed since the trial

court signed the Decree. To obtain a modification of the terms and

conditions of the terms of Guy’s joint managing conservatorship, Mother

needed to secure findings that:

15In re E.R.A., No. 09-20-00042-CV, 2021 Tex. App. LEXIS 2026, at

*11-12 (Tex. App.—Beaumont 2021, no pet.) (mem. op.); In re R.H.C., No.
09-15-00429-CV, 2016 Tex. App. LEXIS 11388, at *12 (Tex. App.—
Beaumont Oct. 20, 2016, no pet.).
16In the Interest of M.A.M., 346 S.W.3d at 13; see also In re E.R.A.,

2021 Tex. App. LEXIS 2026, at *11-12.
17In re E.R.A., 2021 Tex. App. LEXIS 2026, at *12.

14
(1) A decision modifying the prior conservatorship orders in the
2019 Decree is in the best interest of the child.
(2) The circumstances of the child, a conservator, or other party
affected by the previous order have materially and substantially
changed since the trial court rendered the conservatorship orders
in the 2019 Decree. 18

According to Mother, the evidence before the trial court establishes

that the 2019 conservatorship orders had become unworkable or

inappropriate. Mother argues that she presented “more than enough”

evidence for the trial court to have named her as Guy’s “primary

conservator.” But we note that Mother’s standard misstates what she

must establish to prevail, as she must show the trial court didn’t have

sufficient information to exercise its discretion and that it erred in

exercising its discretion by choosing not to modify the conservatorship

provisions in the 2019 Decree.

We turn first to Mother’s argument that the trial court erred in

failing to find “the circumstances of the child, a conservator, or other

party affected by the Decree of Divorce have not materially and

substantially changed since the date of the rendition of that order.”

According to Mother, because Mother and Father both filed petitions

18See Tex. Fam. Code Ann. § 156.101(a) (Grounds for Modification

of Order Establishing Conservatorship, or Possession and Access).
15
claiming that a material and substantial change in circumstances had

occurred since the trial court signed the 2019 Decree, the allegations in

their petitions were binding on the trial court as judicial admissions. As

judicial admissions, Mother argues the trial court was bound to find that

a material and substantial change in Guy’s circumstances had occurred

after January 4, 2019, the day the trial court signed the 2019 Decree.

We acknowledge that pleadings may sometimes operate as judicial

admissions and be binding on the parties as judicial admissions as to the

facts that the pleadings admit. For example, in two family-law cases, In

re D.E.T. and In the Interest of A.E.M., we held that the parties’ respective

petitions and counter-petitions to modify the conservatorship orders

operated as judicial admissions and held the judicial admissions in the

pleadings supported the rulings of those trial courts to modify the

conservatorship orders that were at issue in those appeals. 19 Yet in those

cases—unlike what occurred here—the trial courts in D.E.T. and A.E.M.

found in each case that a material or substantial change had occurred

19In re D.E.T., No. 09-22-00197-CV, 2023 WL 4940623, at *7 (Tex.

App.—Beaumont Aug. 3, 2023, no pet. h.) (mem. op.); In the Interest of
A.E.M., No. 09-18-00288-CV, 2020 WL 826715, at *10 (Tex. App.—
Beaumont Feb. 20, 2020, no pet.).
16
since the trial court had signed its prior conservatorship order. 20 Here,

the trial court found against both parties’ claims when it found that no

material change had occurred.

Thus, while the trial court’s finding here is inconsistent with the

parties’ cross pleadings, it is the trial court who must decide whether the

parties have shown a substantial and material change in circumstances

had occurred and that a modification is in the best interest of the child.

That said, the rules of error preservation required that Mother, as the

party who intended to rely on the judicially admitted fact, to comply with

the rules of error preservation to avoid waiving the admission to rely on

any judicially admitted facts in the partis’ pleadings. 21 The problem of

error preservation wasn’t an issue that was presented to us in D.E.T. or

A.E.M. 22

20Id.
21See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989) (holding
that “a party waives the right to rely upon an opponent’s deemed
admissions unless an objection is made to the introduction of evidence
contrary to those admissions”); see also Houston First Am. Sav. v. Musick,
650 S.W.2d 764, 769 (Tex. 1983); Restelle v. Williford, 364 S.W.2d 444,
446 (Tex. Civ. App.—Beaumont 1963, writ ref’d n.r.e.); Tex. R. App. P.
33.1.
22Id.

17
Under Texas law, a judicial admission is a formal waiver of proof,

which dispenses with the production of evidence on an issue and bars the

admitting party from disputing it. 23 Admissions in trial pleadings are

regarded as judicial admissions, judicially admitted facts require no

proof, and a party may not introduce evidence that contradicts a

judicially admitted fact. 24 Even so, “a party relying upon an opponent’s

pleadings as judicial admissions of fact must protect the record by

objecting to the introduction of controverting evidence and to the

submission of any issue bearing on the facts admitted.” 25

On appeal, Mother’s sole argument is that, because the parties

judicially admitted in their pleadings that a material and substantial

change in Guy’s circumstances had occurred, the trial court abused its

discretion in finding that a material and substantial change had not

occurred. 26 The record shows that Mother didn’t object to the evidence

23Blair v. Blair, 642 S.W.3d 150, 159 (Tex. App.—El Paso 2021, no

pet.).
24See In re D.E.T., 2023 WL 4940623, at *7.
25Marshall, 767 S.W.2d at 700; see also Houston First Am. Sav., 650

S.W.2d at 769; Restelle, 364 S.W.2d at 446.
26We note that Mother might have argued that other circumstances

of the child had changed since January 2019. For example, she could have
argued: (1) that she remarried, separated, and reunited with Guy’s
stepfather; (2) that she and Father enrolled Guy in classes at Learning
18
that the trial court relied on in finding that the circumstances of the

child, a conservator, or other party affected by the Decree had not

materially and substantially changed since January 2019. On the

contrary, the reporter’s record shows that Mother’s attorney elicited

much of the evidence that the circumstances of their joint management

conservatorship had not materially or substantially changed since

January 2019. The evidence presented in the trial shows that in

November and December 2020, when Mother and Father filed the

respective petitions seeking to modify the parent-child relationship, they

were jointly managing Guy under the terms and conditions of the trial

court’s January 2019 Decree. During the trial, Mother testified that she

and Father each had Guy on alternating weeks and lived around “a 30-

minute drive one way.” Yet no evidence shows the alternating week

schedule or the length of the drive changed between January 2019 and

Rx; and (3) that she and Father couldn’t agree on whether Guy should
receive a COVID-19 vaccine when and if the vaccine were approved for
children of Guy’s age. That said, the Texas Supreme Court has repeatedly
cautioned courts of appeals against addressing unassigned error. For
that reason, we will not address an argument that is neither raised nor
briefed. See, e.g., Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998); Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex. 1987); see also Tex.
R. App. P. 38.1(i).
19
the trial. When Mother was asked why she thought the conservatorship

order should be changed, she testified that she wanted to be named Guy’s

primary custodian because there isn’t a “clear delineation of any type of

decision-making regarding [Guy’s] education.” She said she wanted that

role because she took a more active role than Father in Guy’s education.

The evidence about whether Mother was a more active parent than

Father also conflicted. Father testified about the active role he played in

Guy’s education and described the many parent-teacher conferences he

had attended at Guy’s school. And even though Mother testified that

Father never helped Guy with his homework, Guy’s kindergarten teacher

testified that there were never any issues with Guy getting his homework

done regardless of which parent dropped him off at school.

When deciding whether to modify a prior conservatorship order, a

trial court doesn’t abuse its discretion “if its order is supported by some

evidence of a substantive and probative character.” 27 By failing to object

to the evidence showing Guy’s circumstances had not materially and

substantially changed in the hearing, we hold that Mother waived her

27In re A.E.D., No. 09-13-00555-CV, 2014 Tex. App. LEXIS 10587,

at *7 (Tex. App.—Beaumont Sept. 4, 2014, pet. denied).
20
claim that the trial court erred in failing to find that a substantial and

material change had occurred based on a judicial admission in the

parties’ pleadings that Mother waived. 28

And even had Mother not waived her claim that the trial court was

bound to find that a material and substantial change had occurred based

on the parties’ pleadings, Mother would still be required to demonstrate

that the trial court erred in finding that she failed to prove that modifying

the conservatorship provisions in the Decree would be in Guy’s best

interest. 29 According to Mother, the trial court abused its discretion by

not naming her as Guy’s primary conservator because the evidence “was

legally and factually sufficient to support that it was in the child’s best

interest to give [her] the right to determine the primary residence of the

child and decision-making rights.”

As the parent seeking to modify the conservatorship provision in

the 2019 Decree, Mother had “the burden to establish by a preponderance

of the evidence that the modification would be in the best interest of the

28See Marshall, 767 S.W.2d at 700; Tex. R. App. P. 33.1.
29Tex. Fam. Code Ann. § 156.101(a).

21
child.” 30 However, the trial court’s findings of fact state that the trial

court “did not find that modifying the Decree of Divorce was in the child’s

best interest.” On appeal, Mother argues the trial court had “more than

enough” evidence “to have determined that modification would be in the

best interest of the child[.]” To support that argument, Mother points to

her testimony describing what she characterizes as the lead role she took

in educating Guy when comparing her role to that of the role she claims

Father played, which Mother characterized in her brief as seemingly

“indifferent.’”

The trial court heard conflicting evidence about the factors relevant

to conservatorship, possession, and access—the Holley factors. 31 The

evidence admitted in the hearing didn’t address all the relevant Holley

factors; instead, it focused on the parenting skills of the parties, their

plans for the child, the stability of Mother’s and Father’s homes, and the

existing parent-child relationship that Guy has with his parents.

The question for a reviewing court is whether the trial court had

sufficient evidence upon which to exercise its discretion and whether the

30Id.; see In the Interest of J.G.M., No. 09-11-00368-CV, 2012 Tex.

App. LEXIS 4300, at *2 (Tex. App.—Beaumont May 31, 2012, no pet.).
31Holley, 544 S.W.2d at 371-72.

22
trial court erred in the application of its discretion. 32 From the evidence,

the trial court could have reasonably concluded that Guy’s parents both

take active roles in parenting Guy, have a good relationship with him,

and provide Guy with a safe and stable home. We conclude Mother failed

to meet her burden to prove that changing the terms of Guy’s joint-

managing conservatorship, as established by the 2019 Decree, is in Guy’s

best interest.

Consequently, we hold the trial court did not abuse its discretion by

denying Mother’s petition to modify the 2019 Decree. 33 We overrule

Mother’s first issue.

Evidence of Future Plans

In issue two, Mother argues that the trial court “erred by not

allowing [her attorney] to ask questions of [Father] that were related to

[the] Holley Factors.” To support her claim, Mother relies on the trial

court’s ruling sustaining the following objections to two questions that

Mother’s attorney asked when examining Father:

Mother’s Attorney: As far as plans go, what kind of plans do
you have for [Guy]?

32In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11-12.
33See Gillespie, 644 S.W.2d at 451.

23
Father’s Attorney: Objection; vague.

Trial Court: Sustained.

Mother’s Attorney: What do you want [Guy] to be when he
grows up?

Father’s Attorney: Objection; relevance.

Trial Court: Sustained. Is he 6 or 7?

Mother’s Attorney: Well, I – I thought the plans for the child
were relevant in a custody case.

Trial Court: Well, maybe in the next couple of weeks but not
when he – not when he’s 18 or 20.

After the trial court indicated the questions were relevant but that

the questions should be tied to Guy’s more immediate future, Mother’s

attorney questioned Father about his plans for Guy during the next

school year. There were no objections to these questions, and Mother’s

attorney didn’t try to question Father about his plans for Guy in the next

two, three, four, or five years. Nonetheless, Mother argues that because

the two questions the trial court prevented her attorney from asking

Father were about a Holley Factor, the questions “cannot be found to be

irrelevant when it comes to determining the best interest of the child[.]”

24
We review a trial court’s ruling admitting or excluding evidence

under an abuse of discretion standard. 34 Here, we agree with the general

proposition that evidence about a parent’s plans for a child is relevant to

a court’s decision about whether a party’s proposal to modify the terms of

a court-ordered conservatorship is likely to serve the child’s best

interest. 35 Even so, relevant evidence may still be excluded by a trial

court if the trial court decides it is needlessly cumulative of other

evidence admitted in the trial. 36

We need not decide whether the trial court erred in sustaining

objections to the two questions that are at issue here, however, because

we don’t know what Father would have said had he answered the

questions. To preserve error when a court excludes evidence, the Rules of

Evidence require the party to “inform the court of its substance by an

offer of proof, unless the substance was apparent from its context.”37

What a witness would have said in response to a question is important to

the appellate court’s analysis of whether the appellant was harmed since

34In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
35See Holley, 544 S.W.2d at 372.
36See Tex. R. Evid. 403.
37Id. 103(a)(2).

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the party that appeals from a trial court’s judgment must demonstrate

that the trial court’s “error probably caused the rendition of an improper

judgment[.]” 38

After the trial court sustained the objection of Father’s attorney to

the questions about Father’s plans for Guy, Mother’s attorney never

made an offer of proof, an offer that would have informed the trial court

(and this Court) of the substance of what Mother claims Father would

have said had he been required to answer. We can’t now know whether

Father’s answers might have been cumulative of the answers later

provided when asked about his plans for Guy in the upcoming year. We

also can’t now know whether if Father had answered, his answers would

have been material to the decision the trial court made in denying

Mother’s petition. Thus, Mother can’t demonstrate that the error

probably caused the rendition of an improper judgment. 39 We hold that

by failing to make an offer of proof, Mother failed to preserve the

38Tex. R. App. P. 44.1(a)(1).
39Id.

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complaint she raised in her second issue for our review in her appeal.40

We overrule Mother’s second issue.

Conclusion

Having overruled Mother’s issues, the judgment of the trial court is

AFFIRMED.

HOLLIS HORTON
Justice

Submitted on August 21, 2023
Opinion Delivered December 21, 2023

Before Horton, Johnson and Wright, JJ.

40See Gunn v. McCoy, 554 S.W.3d 645, 666 (Tex. 2018) (“If a court

ruling excludes evidence, a party must preserve error by filing an offer of
proof informing the court of the substance of the excluded evidence.”).
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