James Moses and Carmen Moses v. Frances Sanchez and Ray Sanchez--Appeal from County Court at Law No. 1 of Williamson County

MOSES-final IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-551-CV
JAMES MOSES AND CARMEN MOSES,

APPELLANTS

 
vs.
FRANCES SANCHEZ AND RAY SANCHEZ,

APPELLEES

 
FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 88-847-F3, HONORABLE TIMOTHY G. MARESH, JUDGE PRESIDING

Maternal grandparents appeal the trial court's judgment rendered after a jury trial granting the father of the child sole managing conservatorship and granting the maternal grandparents and the paternal grandmother possessory conservatorship. We will affirm.

 
BACKGROUND

On April 2, 1987, Mary Ann Moses gave birth to Crystal, the subject of this conservatorship dispute. Mary Ann and the child's biological father, Ray Sanchez, never married. An agreed Decree of Legitimation rendered December 6, 1988, established that Ray Sanchez was the father of the child, named Mary Ann sole managing conservator, and named Ray Sanchez possessory conservator. On December 24, l988, Mary Ann Moses died of leukemia. On February 14, 1989, an order was issued with the consent of all parties appointing appellants James and Carmen Moses, the maternal grandparents, and appellee Frances Sanchez, the paternal grandmother, joint managing conservators of the child. Appellee Ray Sanchez was named possessory conservator. The Moseses were granted primary physical possession.

In August 1989, Ms. Moses observed that the child's genital area was red and irritated upon her return from a visit with Ray Sanchez and his family. After treating the irritation for four days with no improvement, Ms. Moses took the child to a doctor. In addition to the irritation, the doctor also visually observed that the child's hymen was thin and sagging. The doctor found that these symptoms were consistent with sexual abuse. The child was additionally diagnosed with a bladder infection. The doctor notified the Texas Department of Human Services ("DHS"). DHS began an investigation and, soon afterwards, the court appointed an attorney ad litem to represent the child.

Both the Moseses and the Sanchezes denied any misconduct. DHS removed the child from the Moseses' home and placed her in foster care pending a full investigation of both families. The investigation was inconclusive as to whether any sexual abuse in fact occurred and as to the identity of the perpetrator of any alleged abuse. The father, Ms. Sanchez, and the Moseses were eliminated from consideration as possible perpetrators. The child was returned to the Moseses' home.

In September 1989, the Moseses filed a motion to modify the earlier agreed order, asking for sole managing conservatorship of the child. In August 1990, the father and the paternal grandmother filed a cross-motion seeking sole managing conservatorship in favor of the father or, alternatively, joint managing conservatorship in favor of the father and the paternal grandmother. The jury awarded sole managing conservatorship to the father and possessory conservatorship to the Moseses and the paternal grandmother.

 
DISCUSSION
Modification Instruction

In point of error one, appellants complain that the trial court incorrectly instructed the jury in accordance with section 14.081 rather than section 14.08 of the Family Code. We disagree. See Tex. Fam. Code Ann. 14.08, .081 (West 1986 & Supp. 1993). (1)

Section 14.081 sets forth the "standards to modify the joint conservatorship." (2) 14.081(a). Further, section 14.081(d) allows the court to replace the joint managing conservatorship with a sole managing conservatorship on motion of either joint managing conservator or on its own motion, provided the standards are satisfied. 14.081(d). The Family Code does not limit whom the court may appoint as sole managing conservator.

Appellants argue that section 14.081 applies only to modification of an order as between the joint managing conservators and that, since the father was not one of the joint conservators, he must meet the standards of section 14.08, which govern the modification of a

sole managing conservatorship. (3) In this case, however, the Moseses as joint managing conservators, filed the motion to modify the joint conservatorship, bringing the case under section 14.081. Further, the father and his mother, a joint managing conservator under the agreed order, filed a cross-motion to modify the order. A party's status as a joint managing conservator when the motion is filed determines whether section 14.081 applies. The fact that none of the joint managing conservators were ultimately named the sole managing conservator has no bearing on the application of section 14.081. Appellants' first point of error is overruled.

 
Parental Presumption Instruction

In their seventh point of error, appellants complain that the trial court erroneously included an instruction to apply a presumption favoring parents in conservatorship disputes in the general instructions to the jury. Section 14.01 provides, in pertinent part: "(b) A parent shall be appointed sole managing conservator . . . of the child unless: (1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. 14.01(b)(1) (West Supp. 1993). Appellants do not dispute the strength of the presumption; instead, they dispute its application in this case. Because the February 14, 1989 order did not name the father as a managing conservator, appellants argue that the parental presumption no longer applies. The Texas Supreme Court has recently stated, "The legislature, in enacting section 14.01(b), codified that presumption by defining the procedure for appointment of a non-parent as managing conservator." Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990) Unfortunately, the Family Code does not address whether the presumption survives an agreed order giving joint managing conservatorship to non-parents.

The father cites Yancey v. Koonce, 645 S.W.2d 861 (Tex. App.--El Paso 1983, writ ref'd n.r.e.), as authority for allowing him to receive the benefit of the parental presumption. In Yancey, the mother and father of a child divorced and the mother was appointed managing conservator. The mother then remarried, moved, and left the child with the maternal grandparents. The maternal grandparents initiated proceedings in an effort to gain managing conservatorship of the child. The father and the paternal grandparents contested this proceeding. Despite an instruction on the parental presumption, the father lost and the court awarded the maternal grandparents managing conservatorship. On appeal, the father argued that the jury instruction on the parental presumption, which was identical to the jury instruction in this case, incorrectly allocated the burden of proof equally between the parties, and the court of appeals agreed. Id. at 863. Yancey is similar to the present case because the presumption was applied in a conservatorship contest despite the existence of an earlier order which appointed someone other than the father managing conservator. Because the application of the presumption was not directly challenged and because the earlier order did not involve non-parents, however, Yancey is not controlling in this cause.

In two cases decided before the 1987 amendment of section 14.01(b), the courts held that, after a parent has initially been denied custody, the parental presumption may not be asserted in a subsequent modification proceeding. Hogge v. Kimbrow, 631 S.W.2d 603, 604-05 (Tex. App.--Beaumont 1982, no writ); Allen v. Salinas, 483 S.W.2d 289, 292 (Tex. Civ. App.--El Paso 1972, no writ). These cases rely on the doctrine of res judicata and the strong policy favoring stability in a child's residency. Hogge, 631 S.W.2d at 605; Allen, 483 S.W.2d at 292. The 1987 amendment, however, strengthened and clarified the parental presumption. See Lewelling, 796 S.W.2d at 166-67. Although we acknowledge the strength of this presumption in an initial conservatorship determination, we conclude that, under the reasoning of Hogge and Allen, its application is barred in subsequent modification proceedings. Accordingly, we conclude the trial court erred in instructing the jury on the parental presumption.

However, this determination does not end our analysis. For an erroneous jury instruction to constitute reversible error, it must amount to such a denial of the rights of the appellant that it was reasonably calculated to and probably did cause the rendition of an improper judgment. Tex. R. App. P. 81(b)(1); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986). In making this determination, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp., 710 S.W.2d at 555. If the verdict would have been the same without the instruction, the error is harmless. See Automobile Ins. Co. v. Davila, 805 S.W.2d 897, 904-05 (Tex. App.--Corpus Christi 1991, writ denied); Texas Constr. Serv. Co. of Austin, Inc. v. Allen, 635 S.W.2d 810, 814-15 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.). As we have stated above, the jury was properly charged on the section 14.081 standards that must be met to modify the conservatorship. The record evidence supports the necessary findings under section 14.081 that the circumstances of the parties had "materially and substantially changed" since the prior order such that the order had become "unworkable and inappropriate" and that a change in conservatorship would result in a "positive improvement" and be "in the best interest of" the child. We conclude that any error in including the parental presumption in the instructions was not calculated to and did not cause an improper verdict and, thus, is not reversible error. See Boyer v. Scruggs, 806 S.W.2d 941, 947 (Tex. App.--Corpus Christi 1991, no writ). We overrule appellant's seventh point of error.

 
Implied Finding of Serious and Immediate Harm

In their second point of error, appellants argue that the agreed order granting non-parents managing conservatorship implies a finding that the conditions with the parent, at the time of that order, presented a serious and immediate question regarding the welfare of the child. Appellants assert that the father must refute this implied finding to obtain a modification.

They argue that this finding must be implied because (1) the grandparents have standing in this suit; and (2) for non-parents to have standing, the non-parents must show that conditions with the parent presented a serious and immediate harm to the child. See 11.03(b)(1); Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.--San Antonio 1990, writ denied) (grandparent has standing to initiate a suit seeking managing conservatorship only in extreme circumstances). We conclude that this argument is not applicable to the immediate facts.

The original suit affecting the child was initiated by the mother of the child before her death, who sought and received managing conservatorship of the child. The Moseses were intervenors in this action when they filed the motion to modify the original order affecting the child upon the death of their daughter. Their intervention resulted in the agreed order of February 14, 1989. Standing to intervene requires only a justiciable interest, which grandparents possess, not a finding that the parent presented a serious and immediate threat to the welfare of the child. McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ); Young v. Young, 693 S.W.2d 696, 698-99 (Tex. App.--Houston [14th Dist.] 1985, writ dism'd).

Additionally, as discussed above, we believe that section 14.081 sets out the criteria for modification in the immediate case. Given this clear statement in the Family Code, we decline to add an additional hurdle based on an implication from the standing requirement for grandparents. Appellants' second point of error is overruled.

 
Exclusion and Admission of Evidence

Appellants contend, in their third point of error, that the trial court should have allowed evidence of the father's conduct before the February 14th order. The court granted a motion in limine which prohibited the parties from referring to any conduct of any party before February 14, 1989. The parties agree that evidence of misconduct of any party that occurred before the order sought to be modified is inadmissible except to corroborate evidence of similar misconduct after the order. Wilson v. Elliott, 73 S.W. 946, 947 (Tex. 1903); In re B.S.L., 579 S.W.2d 527, 528 (Tex. Civ. App.--San Antonio 1979, writ ref'd n.r.e.); Green v. White, 203 S.W.2d 960, 962 (Tex. Civ. App.--El Paso 1947, no writ).

Appellants claim that a police record or docket notation containing a post-order complaint against Ray Sanchez for assaultive behavior towards two women was incorrectly excluded and, if admitted, would have been sufficient evidence of his violent nature to allow admission of corroborating evidence of conduct before February 14, 1989.

The trial court first addressed the admissibility of the police record in a conference before jury voir dire. To properly preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired and have obtained a ruling upon the party's request, objection, or motion. Tex. R. App. P. 52(a). Error in the exclusion of evidence cannot be preserved on the basis of objection to the motion in limine alone. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex.), cert. denied, 449 U.S. 1015 (1980); Rodarte v. Cox, 828 S.W.2d 65, 77 (Tex. App.--Tyler 1991, no writ). The record does not indicate nor do appellants point out where the police record was actually offered as evidence and excluded. Appellants made the offer of proof premised upon a ruling of inadmissibility; however, we do not find such a ruling in the record. Appellants therefore have not properly preserved their complaint.

Appellants also contend that a court report, prepared by the caseworker and submitted by DHS, opened the door for admission of evidence of the father's conduct that pre-dated the order of February 14, 1989. The court report mentions previous referrals to DHS regarding the child. The referrals were documented as unfounded. This information is not sufficiently similar to alleged misconduct of the father to warrant "opening the door." See Top Value Enters. v. Carlson Mktg. Group, Inc., 703 S.W.2d 806, 811 (Tex. App.--El Paso 1986, writ ref'd n.r.e.). We overrule appellants' third point of error.

In their fourth point of error, appellants contend that evidence of the father's conduct before February 14, 1989, was improperly excluded because appellees' objection that the evidence violated the court's ruling on the motion in limine was insufficient. We disagree. The extensive discussion by the litigants in this case regarding the substance of the motion in limine clearly establishes the context of the objection. The evidence of Ray Sanchez conduct before the February 14, 1989 order was not admissible except to corroborate evidence of subsequent conduct. Wilson, 73 S.W. at 947; In re B.S.L., 579 S.W.2d at 528; Green v. White, 203 S.W.2d at 962. If the grounds of the objection are clear from its context, the objection was in proper form. Tex. R. Civ. Evid. 103(a)(1). Our examination of the record shows that the exclusion of the evidence on these grounds was not error because the grounds of the objection were clear from the context. Appellants' fourth point of error is overruled.

In their sixth point of error, appellants also complain that the testimony of a handwriting expert was improperly excluded. Appellants called this witness because the witness (1) was a handwriting expert who would testify that Mary Ann Moses' signature on the statement of paternity was unauthentic, (2) was a Court Appointed Special Advocate ("CASA") volunteer, and (3) knew a neighbor of the Moseses. Appellants did not make an offer of proof on any expert testimony of the witness as a CASA volunteer or as a fact witness. Therefore, any error in excluding this testimony is waived. Tex. R. Civ. Evid. 103(a)(2).

Appellants did make an offer of proof on the expert opinion testimony that Mary Ann Moses' signature was forged on the agreed Decree of Legitimation. The asserted relevance of this testimony was to show Ray Sanchez' lack of credibility and "what he would be willing to do to get his way." The trial court sustained objections to this testimony, stating that the witness could not form an opinion as to Ray Sanchez and that the testimony was immaterial. Because this testimony related to an alleged incident occurring before the order sought to be modified, the exclusion of this evidence was proper. Wilson, 73 S.W. at 947; In re B.S.L., 579 S.W.2d at 528; Green v. White, 203 S.W.2d at 962. Appellants' sixth point of error is overruled.

In their fifth point of error, appellants complain that a chart prepared by the attorney ad litem during opening argument was erroneously admitted. We agree. However, we believe the error to be harmless in this case. The chart was admitted into evidence for the purpose of reflecting questions and issues the attorney ad litem asked the jury to consider. The chart was not based on evidence. The jury may take the charge and instructions and any written evidence, except depositions, into the jury room during deliberations. Tex. R. Civ. P. 281. Because the chart contained the attorney ad litem's personal comment on the issues and did not summarize evidence, admission was erroneous. The admission was not reversible error, however. The jury was instructed on what qualified as evidence on several occasions and the court presented the charge which provided the legal rules to be followed in reaching a verdict. Appellants have failed to show that the admission of the chart amounted to such a denial of rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Tex. R. App. P. 81(b)(1). Appellants' fifth point of error is overruled.

 
Affidavit of Inability to Pay Costs

Appellants contend in their eighth and final point of error that the trial court erred in sustaining the contest to the Moseses' affidavit of inability to pay costs, in setting the bond at more than any party had requested, and in basing its decision on impermissible grounds. Mandamus in the court of appeals is the proper remedy upon a trial judge's sustaining a contest to an affidavit of inability to pay costs. Allred v. Lowry, 597 S.W.2d 353, 354 n.2 (Tex. 1980). Alternatively, the trial court's order setting security is subject to review on a motion to the appellate court for insufficiency or excessiveness. Tex. R. App. P. 49(b); see also Tapiador v. North Am. Lloyds of Tex., 772 S.W.2d 954, 956 (Tex. App.--Houston [1st Dist.] 1989, no writ); Shenandoah Assocs. v. J&K Properties, Inc., 696 S.W.2d 685, 986 (Tex. App.--Dallas 1985, no writ). Appellants did not pursue either remedy and, instead, perfected this appeal by filing a bond. Therefore, appellants' eighth point of error is overruled.

 
CONCLUSION

The judgment of the trial court is affirmed.

 

Jimmy Carroll, Chief Justice

 

[Before Chief Justice Carroll, Justices Jones and Kidd]

 

Affirmed

 

Filed: July 7, 1993

 

[Do Not Publish]

1. All subsequent references to section numbers shall be to the Family Code unless otherwise noted.

2. The relevant standards for modification of a joint managing conservatorship to a sole managing conservatorship are set out in section 14.081(d), as follows:

 

(d) After a hearing, on the motion of one or both of the joint managing conservators or on the court's own motion, a court may replace a joint managing conservatorship with a sole managing conservatorship if:

 

(1)(A) the welfare of the child is a matter of immediate and serious concern;

 

(B) there has been a substantial and unexcused violation of the terms and conditions established in the existing conservatorship decree; or

 

(C) the circumstances of the child or one or both of the joint managing conservators have so materially and substantially changed since the rendition of the decree that it has become unworkable or inappropriate under existing circumstances; and

 

(2) the appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child.

3. The relevant standards for a change of the designated sole managing conservator are set out in section 14.08, as follows:

 

(c) After a hearing, the court may modify an order or portion of a decree that:

 

(1) designates a sole managing conservator if:

 

(A) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order or decree have materially and substantially changed since the date of the rendition of the order or decree to be modified; and

(B) the retention of the present sole managing conservator would be injurious to the welfare of the child; and

(C) the appointment of the new sole managing conservator would be a positive improvement for the child.