In the Interest of W.R.M.D., a Child--Appeal from 378th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00046-CV

In the Interest of W.R.M.D., a Child,

From the 378th District Court

Ellis County, Texas

Trial Court No. 66664D

MEMORANDUM Opinion

In this suit to designate which parent should have the exclusive right to designate the primary residence of W.R.M.D., a jury found for Appellee Kenneth Denny. Appellant RaeLee Parrish appeals, complaining in one issue that the trial court abused its discretion by excluding evidence of Denny s motives and of his conduct that occurred before his paternity was established. We will affirm.

Denny s paternity was established in February 2004, when W.R.M.D. was about twenty months old, and Parrish was given the exclusive right to designate W.R.M.D. s primary residence. About eighteen months later, Denny petitioned to modify the parent-child relationship by being appointed as the person with the right to designate W.R.M.D. s primary residency, asserting a material and substantial change in the circumstances. At trial, the trial court precluded Parrish from offering evidence that, before W.R.M.D. s birth (and before the order sought to be modified): (1) Denny threatened Parrish that he would take an active role in the child s life if Denny turned out to be the father; (2) Denny would attempt to get custody if he were the father; (3) Denny asked Parrish to have an abortion; and (4) Denny wanted to relinquish his parental rights before a DNA paternity test was conducted.

We review a trial court s decision to exclude evidence for abuse of discretion. Rosas v. Hatz, 147 S.W.3d 560, 563 (Tex. App. Waco 2004, no pet.); see Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).

Texas law is well settled that evidence of misconduct that occurred before rendition of the order sought to be modified is inadmissible in a subsequent proceeding. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 947 (1903); In re C.E.B., 604 S.W.2d 436, 443 (Tex. Civ. App. Amarillo 1980, no writ); In re B.S.L., 579 S.W.2d 527, 529 (Tex. Civ. App. San Antonio 1979, writ ref d n.r.e.); Olds v. Burton, 181 S.W.2d 118, 119 (Tex. Civ. App. Eastland 1944, no writ). An exception to this rule is that evidence of misconduct occurring before the original decree or order is admissible to corroborate testimony of subsequent similar misconduct. C.E.B., 604 S.W.2d at 443; Olds, 181 S.W.2d at 119. In the trial court, Parrish sought to come within this exception.

We agree with Denny that the alleged prior conduct is not misconduct per se, but because Parrish seeks to treat it as such to use it against Denny, we will consider it as such as well. The gist of Parrish s argument is that Denny did not want her to have the child, but if she did and he turned out to be the father, he would punish her by being involved in the child s life and by seeking custody or dragging her into court all the time. She essentially claims that Denny has been engaging in substantially similar conduct because after February 2004, when his paternity of W.R.M.D. was proved, he took an active role in the child s life. But neither we nor Parrish can divine whether Denny is trying to punish Parrish or whether he is just attempting to be a good father and to act in the child s best interest. The trial court aptly noted that the evidence s prejudicial effect greatly outweighed its probative value and that if Denny lost and continued to fight Parrish in court, the evidence could possibly be relevant then.

The trial court did not abuse its discretion in excluding evidence of alleged misconduct occurring before the order sought to be modified. We overrule Parrish s sole issue and affirm the trial court s order.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 17, 2007

[CV06]