Affirmed and Memorandum Opinion filed October 26, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00834-CV


                  In the Interest of A.J.L. and V.C.L., Children


                    On Appeal from the 387th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 09-DCV-171712

                  MEMORANDUM OPINION


      This is an appeal from the grant of a no-evidence summary judgment motion
in a suit to modify the parent-child relationship. The appellant contends that the no-
evidence motion is legally defective and that she presented evidence raising a
genuine issue of material fact on the challenged elements of material and substantial
change in circumstances and best interest of the child. We affirm.
                      FACTUAL AND PROCEDURAL BACKGROUND

       Mother and Father, the parents of two children, were divorced in 2010. The
parties signed a mediated settlement agreement (MSA) on June 27, 2013, which
made them joint managing conservators of the children and did not require either
parent to pay child support. The trial court incorporated the terms of the MSA in an
order modifying the parent-child relationship rendered on July 12, 2013 (the 2013
Order). In August 2014, Mother sued Father to modify the 2013 Order. In response,
Father filed a counter-petition for modification.

       In her live pleading, Mother requested that she be appointed sole managing
conservator; alternatively, Mother requested that she be appointed the person having
the right to designate the primary residence of the children, as well as the exclusive
right to consent to certain medical procedures and care, to make educational
decisions, and to receive and disburse child support. Mother also sought to modify
Father’s access and possession to provide for a standard possession order, and
requested that Father be ordered to pay child support. Further, Mother requested that
Father be ordered to submit to random alcohol testing and that Father be permanently
enjoined from consuming alcohol during periods of access and possession of the
children.1

       In 2016, Father filed a hybrid no-evidence and traditional motion for summary
judgment and Mother filed a response. After a hearing, the trial court granted
Father’s motion for no-evidence summary judgment and dismissed Mother’s
modification action by order signed September 20, 2016. The trial court’s order
specifically granted only the no-evidence summary judgment motion and did not


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         The 2013 Order included a provision permanently or enjoining both Mother and Father
from consuming alcohol during any period of possession or access to the children. This and other
specified conduct was ordered enjoined “because of the conduct of the parties.”

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mention Father’s traditional summary judgment motion. Two days later, Father
nonsuited his counter-petition. On September 27, 2016, the trial court signed an
order granting the nonsuit, making the trial court’s order granting Father’s motion
for no-evidence summary judgment final and appealable.

                                    ISSUES AND ANALYSIS

       On appeal, Mother first contends that the trial court erred in granting Father’s
no-evidence summary judgment motion because the motion is legally defective.
Mother also contends that she presented evidence raising a genuine issue of material
fact that there was a material and substantial change in the circumstances of Father
and the children, and that her proposed changes were in the best interest of the
children.2 We address each in turn.

I.     The No-Evidence Summary Judgment Motion is Legally Sufficient

       In her first issue, Mother contends that Father’s no-evidence summary
judgment motion is legally defective because it does not strictly comply with Rule
166a(i) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(i). Rule
166a(i) requires that a no-evidence motion specifically state the element or elements
for which there is no evidence. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009) (citing Tex. R. Civ. P. 166a(i)). The motion must be specific in
challenging the evidentiary support for an element of a claim or defense; conclusory
motions or general no-evidence challenges to an opponent’s case are not authorized.


       2
           Mother also contends that, to the extent this court considers the trial court’s order as
granting Father’s traditional summary judgment motion, the trial court erred because the traditional
motion is legally defective, genuine issues of material fact exist as to whether there was a material
and substantial change in the status of Father and the children, and res judicata does not apply.
Because the trial court expressly granted the no-evidence summary judgment motion only, we
decline to consider Mother’s alternative arguments. See Morris v. Deutsche Bank Nat’l Trust Co.,
___ S.W.3d ___, 2017 WL 3045789, at *5 (Tex. App.—Houston [14th Dist.] July 18, 2017, no
pet.) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)).

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Id. The underlying purpose of the requirement is to provide the opposing party with
adequate information for opposing the motion, and to define the issues for the
purpose of summary judgment. Id. at 311.

       Mother argues that Father’s no-evidence motion is defective in four different
and independently fatal ways. Specifically, Mother maintains that the motion: (1)
cites to a nonexistent section of the Family Code; (2) references an incorrect time
period in which Mother was required to show a material and substantial change in
circumstances; (3) fails to identify which of the specific “requested changes” Mother
requested as being in the child’s best interest were challenged; and (4) fails to specify
which child is the subject of the motion.

      A trial court with continuing, exclusive jurisdiction may modify an order
regarding conservatorship or the possession of and access to a child. Tex. Fam. Code
§ 156.001. A court may modify such an order if the evidence shows: (1) a material
and substantial change in the circumstances of the child, a conservator, or other party
affected by the order; and (2) that the change would be in the child’s best interest.
See id. § 156.101(a)(1). And, if the parties have agreed to an order under which the
amount of child support differs from the amount that would be awarded in
accordance with the child support guidelines, the court may modify the order “if the
circumstances of the child or a person affected by the order have materially and
substantially changed since the date of the order’s rendition.” See id. § 156.401(a-
1).

      Mother cites the following paragraph of the no-evidence motion to support
her complaints that the motion is legally insufficient:

            After adequate time for discovery, [Mother] has absolutely no
      evidence raising a genuine issue of material fact that there has been a
      material or substantial change of circumstances as contemplated by
      Texas Family Code sections 156.101(1) and 156.401(a-1) since this
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      court’s rendition of the 2013 Order. Without proving these elements by
      a preponderance of the evidence, her claims for modification must fail.
      As such, this Court should grant summary judgment and finally dispose
      of all claims by [Mother].

      Mother’s first complaint is that because Father omits the “(a)” in section
156.101(a)(1), his citation to a “non-existent” section of the Family Code fails to
comply with Rule 166a(i)’s strict requirement to specify the elements as to which he
alleges there is no evidence. In context, however, the basis of Father’s no-evidence
motion is clear. Father’s motion begins with an introductory section in which the
relevant text of sections 156.101 and 156.401 are set out in full, including all of
sections 156.101(a)(1) and 156.401(a-1). The next section is clearly identified as the
no-evidence portion of the motion and sets out the challenged elements in separate
paragraphs. The paragraph challenging the element of a material and substantial
change in circumstances, cited above, expressly incorporates the applicable statutory
language. Mother cites no case in which a court has held that an obvious
typographical error in a no-evidence motion that otherwise adequately informs the
nonmovant of the challenged elements renders the motion legally insufficient, and
we are aware of none. We therefore reject Mother’s first complaint.

      Next, Mother complains that the no-evidence motion is legally insufficient
because Father references an incorrect time frame. In the motion, Father asserts that
Mother has no evidence of a material and substantial change since the trial court’s
rendition of the 2013 Order. Mother argues that because the 2013 Order was based
on a mediated settlement agreement, section 156.101(a)(1) and section 156.401(a-
1) require evidence of a material and substantial change “since the earlier of . . . the
date of the rendition of the order . . . or the date of the signing of a
mediated . . . settlement agreement on which the order is based.” See Tex. Fam.
Code § 156.101(a)(1) (emphasis added); see also id. § 156.401(a)(1). Because

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Father moved for summary judgment based on the lack of evidence of a material or
substantial change since rendition of the 2013 Order—instead of the date of the MSA
that formed the basis of the 2013 Order—Mother argues that Father failed to move
for no-evidence summary judgment on “one or more essential elements of a claim
or defense on which an adverse party would have the burden of proof at trial.” See
Tex. R. Civ. P. 166a(i).

      As an initial matter, Mother’s complaint as to Father’s challenge to Mother’s
request for modification of support is misplaced, because Father challenged
Mother’s evidence under section 156.401(a-1), which does not contain the same
language as section 156.401(a). See Tex. Fam. Code § 156.401(a-1) (providing that
court may modify support order “only if the circumstances of the child or a person
affected by the order have materially and substantially changed since the date of the
order’s rendition” (emphasis added)). As to Mother’s section 156.101 complaint,
we conclude that although the challenged element should have more accurately
reflected the statute, we decline to hold that Father’s no-evidence motion was legally
insufficient on this ground. We again note that Father set out the full text of section
156.101(a)(1) and incorporated the text into the challenged element by asserting that
Mother had no evidence of a material or substantial change of circumstances “as
contemplated by Texas Family Code section[] 156.101(1)” since the date of the 2013
Order.

      Finally, Mother complains that Father does not identify which of Mother’s
requested modifications pertaining to the best interest of the child were being
challenged and does not identify which of the two children are the subject of the
challenge. But, specific factual theories or allegations within a claim are not
elements of the claim and are not required to be asserted. See Jose Fuentes Co., Inc.
v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. denied) (“A no-

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evidence motion for summary judgment may be directed at specific factual theories
or allegations within a claim or defense only if the challenge to the factual allegation
is connected to a no-evidence challenge to a specified element of a claim or
defense.”) (emphasis in original).

      Relevant here, the grounds for modification of an order establishing
conservatorship or possession and access require the petitioner to show that: (1)
modification would be in the best interest of the child; and (2) the circumstances of
the child, a conservator, or other party affected by the order have materially and
substantially changed since the date the MSA was signed or the date the modification
order was rendered. See Tex. Fam. Code §§ 156.101(a)(1), 156.401(a-1). Father
specifically challenged both elements; that is all he was required to do. We overrule
Mother’s first issue.

II.   The Trial Court Did Not Err in Granting Father’s No-Evidence
      Summary Judgment Motion
      In her second issue, Mother contends that the trial court erred in granting
Father’s no-evidence summary judgment motion because the record evidence raises
a genuine issue of material fact as to whether there was a material and substantial
change in the status of Father and the children since the signing of the MSA on which
the 2013 Order is based, and whether the proposed changes were in the best interest
of the children. Father argues that Mother has failed to present evidence sufficient
to show a material change in circumstances or that the modification would be in the
best interests of the children.

      Under Rule 166a(i) of the Texas Rules of Civil Procedure, a party may move
for a no-evidence summary judgment on the ground that there is no evidence of one
or more essential elements of a claim or defense on which an adverse party would
have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Sudan v. Sudan, 199 S.W.3d

                                           7
291, 292 (Tex. 2006) (per curiam). To defeat a no-evidence motion, the nonmovant
must produce evidence raising a genuine issue of material fact as to the challenged
elements. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214,
220 (Tex. 2017). The nonmovant is “not required to marshal its proof; its response
need only point out evidence that raises a fact issue on the challenged elements.”
Tex. R. Civ. P. 166a(i) cmt—1997. A genuine issue of material fact exists if the
evidence rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. Parker, 514 S.W.3d at 220.

      In response to Father’s no-evidence motion, Mother filed a response to
Father’s summary judgment motion with the following attached exhibits, totaling
114 pages: Father’s first amended counter-petition, Mothers’ supplemental
interrogatory answers, Father’s responses to Mother’s disclosure request, two
affidavits of Mother’s attorney, and Mother’s affidavit with five attached exhibits.
After reciting the law generally applicable to no-evidence summary judgment
motions, the entirety of Mother’s substantive response to Father’s no-evidence
summary judgment was one paragraph:

       Petitioner claims a genuine issue of material fact exists as to whether a
      material and substantial change in circumstances has occurred and
      submits affidavits, discovery, documentary evidence and Petitioner’s
      pleadings, as summary judgment evidence, referenced in an appendix
      attached hereto, filed with this response and incorporated by such
      reference for all purposes as if recited verbatim herein.

Mother did not cite, quote, or otherwise point out to the trial court the evidence she
relied on to create a fact issue on the challenged elements, in any portion of her
response. Nor did she make any argument or cite to any legal authority in support of
her position.

      When a nonmovant presents summary judgment evidence in response to a no-


                                          8
evidence motion, that party must specifically identify the supporting proof it seeks
to have considered by the trial court. Moon Sun Kang v. Derrick, Nos. 14-13-00086-
CV, 14-13-0088-CV, 2014 WL 2048424, at *7 (Tex. App.—Houston [14th Dist.]
May 15, 2014, pet. denied) (mem. op.); Burns v. Canales, No. 14-04-00786-CV,
2006 WL 461518, at *4 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet.
denied) (mem. op.). Further, general citation to voluminous records is not a proper
response to a no-evidence motion for summary judgment. Moon Sun Kang, 2014
WL 2048424, at *7; Burns, 2006 WL 461518, at *4. Nor is the trial court required
to search the record for evidence raising a material fact issue without more specific
guidance from the nonmovant. Moon Sun Kang, 2014 WL 2048424, at *7. “A trial
court does not abuse its discretion when it does not consider summary judgment
proof to which a movant does not specifically direct the trial court’s attention.”
Burns, 2006 WL 461518, at *4.

      Accordingly, the trial court would not have erred by granting Father’s no-
evidence summary judgment motion. See Moon Sun Kang, 2014 WL 2048424, at *8
(affirming grant of no-evidence summary judgment when nonmovants’ responses
contained only general citations to incorporated affidavits and exhibits and failed to
cite to specific evidence); Burns, 2006 WL 461518, at *3–4 (affirming grant of no-
evidence summary judgment when response merely incorporated materials by
reference without citing to any authority or specific evidence); see also Levine v.
Unique Beverage Co., No. 05-11-01467-CV, 2013 WL 1281896, at *3 (Tex. App.—
Dallas Mar. 19, 2013, pet. denied) (mem. op.) (holding that trial court was not
required to search through ninety-eight pages of evidence attached to plaintiff’s
response to locate summary judgment evidence raising genuine issue of material fact
without more specific guidance from plaintiff); Stephens v. Precision Drilling
Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 WL 1928797, at *6 (Tex. App.—


                                          9
Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.) (holding that nonmovant’s
general reference to materials incorporated by reference in summary judgment
response was ineffective to point out any particular evidence for the purpose of
responding to movant’s no-evidence summary judgment motion); Norris v. Tenet
Houston Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, at *9–10 (Tex.
App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (holding that trial
court did not err in granting no-evidence summary judgment when nonmovant
globally stated facts, attached approximately a hundred pages of evidence, and did
not explain how the evidence supported any of the challenged elements of her causes
of action).

      We conclude that on this record, Mother has failed to carry her burden to
present evidence raising a genuine issue of material fact that there has been a
material and substantial change in the circumstances of a child, a conservator, or
other party affected by the 2013 Order, and that modification of the 2013 Order
would be in the best interest of the children. Accordingly, we hold that the trial court
did not err in granting Father’s no-evidence summary judgment.

                                    CONCLUSION

      We overrule Mother’s issues and affirm the trial court’s judgment.




                                        /s/    Ken Wise
                                               Justice


Panel consists of Justices Christopher, Brown, and Wise.




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