
                           NO. 07-10-0143-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL A

                           SEPTEMBER 16, 2011








                    JAMES WILLIAM KOHUTEK, APPELLANT


                                   v.


                     SHERI RUTH KOHUTEK,  APPELLEE





            FROM THE 85TH DISTRICT COURT OF BRAZOS COUNTY;[1]

          NO. 02-001484-CVD-85; HONORABLE J.D. LANGLEY, JUDGE





Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

       Appellant,  James  William  Kohutek,  appeals  from  a  judgment
entered in favor of Sheri Ruth Kohutek in a suit affecting the  parent-
child relationship ("SAPCR"), following a  bench  trial.   In  support,
James presents six issues:  (1)-(4) whether the trial  court  erred  by
modifying  the  original  divorce  decree's   provisions   related   to
geographic restrictions, Christmas  possession,  airline  exchanges  of
the  children,  and  private  school  attendance  when  Sheri  did  not
specifically plead for  the  relief  granted;  (5)  whether  the  trial
court's allocation of travel expenses was fair and equitable;  and  (6)
whether the trial court erred  by  modifying  the  decree's  provisions
related to educational decisions when Sheri did not specifically  plead
for the relief granted.  We affirm.

                               Background

      James and Sheri are the parents of  two  boys  ages  14  and  12,
Randall and Jonathan, respectively.  In 2003, James and Sheri  divorced
per the terms of an Agreed Final Divorce  Decree.   Under  the  decree,
James and Sheri were appointed joint managing  conservators  and  Sheri
was given the exclusive right to establish  the  primary  residence  of
the children in Brazos County,  Texas.[2]   The  decree  also  provided
that Christmas holidays would be split between  both  James  and  Sheri
and that, until graduation, each parent would be responsible for  fifty
percent of  the  boys'  private  school  tuition  at  Brazos  Christian
School, or another private school by agreement of the  parties.   James
was also ordered to pay Sheri $1,050 per month in child support.

      In March 2008,  Sheri  filed  a  Motion  to  Modify  Parent-Child
Relationship and Notice of Hearing.   The  motion  indicated  that  the
circumstances  of  Sheri  and   the   children   had   materially   and
substantially changed since the original order issued and she  believed
the  parties  would  "enter  into  a   written   agreement   containing
provisions for modification of the order providing for  conservatorship
of the children (removing the domicile  restriction),"  and  "[contain]
provisions for modification . .  .  providing  for  possession  of  and
access to the children."  (Emphasis added).   She  requested  that  the
terms and conditions for access to or possession  of  the  children  be
modified "[t]o remove the domicile restriction on a temporary basis  so
that [Sheri] and the  children  [could]  relocate  to  Alaska  for  (1)
year."

       James's  Counterpetition  to  Modify  Parent-Child  Relationship
requested that he be appointed  joint  managing  conservator  with  the
exclusive right to determine the  children's  residence  within  Brazos
County, Texas, have expanded standard periods of  possession  with  the
children and have his child support payments decreased.   His  Original
Answer was a general denial.

      In April 2008, Sheri filed a Motion  for  Judge  to  Confer  with
Children requesting that the court confer with the  children,  both  at
the final hearing and  for  the  temporary  orders,  to  determine  the
children's wishes regarding possession and access without the  presence
of counsel, the parties, or a record being  made.   She  also  filed  a
First Amended Petition to Modify Parent-Child  Relationship  seeking  a
modification of James's child support obligation.

      In May 2008, the trial court issued its Agreed  Temporary  Orders
modifying the decree as follows:  (1) Sheri  was  granted  a  temporary
modification of the geographic restriction for one year to  permit  her
to have the exclusive right to designate the primary residence  of  the
children in Anchorage, Alaska; (2) on or before June  15,  2009,  Sheri
was required to notify James whether she intended to relocate in  Texas
or  seek  a  permanent  (final   order)   removing   the   geographical
restriction contained in the decree at which time  the  case  would  be
set for trial in Brazos County; (3) the children  shall  attend  either
Birchwood Christian Academy  or  Anchorage  Christian  School  and  the
provisions  of  the  decree  regarding  allocation  of  private  school
tuition would remain in effect; (4) James would have possession of  the
children for the entirety of the Christmas break, December 20, 2008  to
January 3, 2009 with Sheri paying the  children's  round-trip  airfare.
(Emphasis added).

      In May 22,  2009,  Sheri's  counsel  sent  a  letter  to  James's
counsel indicating that Sheri wanted to  extend  the  Temporary  Orders
for an additional year before she made a  final  decision  whether  she
would return to Texas or seek to remain in  Alaska.   She  received  no
response  and,  in  June,  notified  James's  counsel  that   she   was
exercising her option under the Temporary Orders to seek a final  order
removing the geographic restriction.  A  final  hearing  was  scheduled
for October 22, 2009.   Prior  to  that  hearing,  Sheri  responded  to
discovery requests from James's counsel although James did not  respond
to discovery requests from Sheri's counsel.

      Trial

      At trial, Sheri testified that after the  divorce  in  2003,  she
was financially strapped, causing her to work long hours  in  order  to
make enough to  survive.   Her  schedule  caused  her  to  either  have
someone stay  with  the  boys  when  she  wasn't  there  or  have  them
accompany her on calls.  Because of her schedule, it was difficult  for
the boys to have their own activities.   As  a  result,  she  began  to
consider options other than  operating  her  own  veterinary  practice.
She testified that  Brazos  County  was  saturated  with  veterinarians
because of its proximity to the veterinary  school  at  Texas  A&M  and
that there were no job options for her locally.

      In 2007, they traveled to Alaska to  visit  friends.   While  she
was there, she met some veterinarians and, when she returned to  Texas,
the  Alaskan  veterinarians  offered  her  a  position  as  a  salaried
employee working regular  hours  from  8:00  a.m.  to  5:00  p.m.   She
discussed the opportunity  in  Alaska  with  the  boys  and  they  were
excited about making the change.  James did not want  the  boys  to  go
and,  when  she  sought  a  temporary  order  to  lift  the  geographic
restriction, James would not  agree.   Eventually  she  and  James  did
agree to temporarily lift the  geographic  restriction  for  one  year.
The temporary order gave Sheri the option of seeking a permanent  order
removing the geographic restriction, and  it  provided  that  the  boys
would attend one of two private schools in Alaska.

      During the next  year  in  Alaska,  the  boys  were  very  happy,
relaxed, made straight "A's"  in  school  and  were  very  involved  in
church and school activities.  Their teachers  believed  the  boys  had
adjusted remarkably well.  Sheri was working 8:00 a.m.  to  4:00  p.m.,
no longer on call, had a much better life doing small  animal  medicine
and anticipated long term employment.  Her  office  was  only  one-half
mile from the boys' school.

      Sheri  and  the  boys  regularly  attended  church  at  Anchorage
Baptist Temple where the boys were involved  in  Sunday  school  and  a
youth group on Wednesdays.  The boys  were  also  involved  in  hiking,
fishing, snowmobiling, skiing, and dog sledding.   Sheri  testified  as
to the stress the dispute between her and James was causing  the  boys.
As a result, Sheri requested that the court remove  the  Brazos  County
domicile  restriction  and  give  her  the  exclusive  right  to   make
decisions for the boys' education.  Sheri also testified that  she  was
willing to terminate James's  obligation  to  pay  for  private  school
tuition if he would be responsible for paying airfare  for  himself  or
the boys to visit.  According to her  testimony,  one-half  of  private
school costs were $4,725, while the cost of flying both boys  to  Texas
four times a year was approximately  $4,000,  or  $1,000  per  trip  if
tickets were purchased in advance.

      James testified he has been employed at  a  utility  company  for
thirty-two years and was in charge of the electrical equipment  at  the
plant.  He works at the utility company from 7:00  a.m.  until  usually
3:30 p.m. to 5:00 p.m., but he is on call.  He indicated he gets  calls
in the middle of the night and his  company  works  24/7.   At  varying
points in his  testimony,  he  estimated  his  income  was  $80,000  to
$85,000 per year.[3]  James also owns and operates a foundation  repair
company which he indicated broke even.

      On December 15, 2009, the trial court issued its  order  granting
Sheri's request that she have the  exclusive  right  to  designate  the
primary residence of the children  and  make  decisions  regarding  the
boys' education.  The order also provided that James  and  Sheri  would
have possession of the children annually  on  alternating  Thanksgiving
and Christmas holidays and that James would be responsible for 100%  of
any travel expenses associated with his  possession  of  the  children.
Finally, the order relieved James of the obligation to pay one-half  of
the  children's  educational  expenses,  but  it  increased  his  child
support obligation to $1,322 per month.  James's motion for  new  trial
was denied after a hearing.  On March 5,  2010,  by  agreement  of  the
parties, the trial  court  amended  provisions  of  its  earlier  order
pertaining  to  logistics  for  the  airline  transportation   of   the
children.[4]  This appeal followed.

                               Discussion

      James asserts the trial court abused its discretion by  modifying
the decree's provisions related to geographic  restrictions,  Christmas
possession, private school attendance in Alaska and provisions  related
to educational decisions when Sheri did not specifically plead for  the
relief  granted.   He  also  questions  whether   the   trial   court's
allocation of travel expenses was fair and equitable.

      Modification of a SAPCR Order

      A court with continuing, exclusive  jurisdiction  may  modify  an
order that provides for the conservatorship, support, or possession  of
and access to a child; Tex. Fam. Code Ann. §  156.001  (West  2008),[5]
if modification would be in the best interest of the child and (1)  the
circumstances of the child, a conservator, or other party  affected  by
the order have materially and substantially changed since  the  earlier
of the date of the rendition of the order or the date  of  the  signing
of a mediated or collaborative law settlement  agreement,  or  (2)  the
child is at least twelve years of age and has expressed  to  the  court
in chambers, as provided in Section 153.009, the  name  of  the  person
who is the child's preference to have exclusive right to designate  the
primary residence of the child.  Id.  at  §  156.101(a)(1),  (2).   The
Texas Rules of Civil Procedure applicable to the filing of an  original
proceeding apply to a suit  for  modification  of  a  SAPCR  order.   §
156.004.  In addition, if a change in residence  results  in  increased
expenses for a party having possession or access to a child, the  court
may also render orders to allocate the increased  expenses  on  a  fair
and equitable basis, taking into account the  cause  of  the  increased
expenses and the best interests of the child.  § 156.103.

      Standard of Review

      In a SAPCR proceeding, we review  a  trial  court's  decision  to
modify under an abuse of discretion standard.  See  Seidel  v.  Seidel,
10 S.W.3d 365, 368 (Tex.App.--Dallas 1999, no  pet.).   A  trial  court
abuses its discretion when it acts  in  an  arbitrary  or  unreasonable
manner or when it acts without reference  to  any  guiding  principles.
Id.

      Pleading Requirements

      Texas Rule of Civil Procedure 90 provides that  "[e]very  defect,
omission or fault in a pleading either of form or of  substance,  which
is not specifically pointed out by exception in writing and brought  to
the attention of the judge in the trial court . . .  .  in  a  non-jury
case, before the judgment is signed,  shall  be  deemed  to  have  been
waived by the party seeking reversal on such account" except as to  any
party against whom default judgment is rendered.[6]  (Emphasis  added).
 Tex. R. Civ. P. 90.

      Here,  James  failed  to  object  in  writing  or  bring  to  the
attention of the trial court any  insufficiency  in  Sheri's  pleadings
when Sheri's counsel informed the trial court that  Sheri  was  seeking
to modify the decree's provisions related to  geographic  restrictions,
Christmas  possession,  private  school   attendance   in   Alaska   or
provisions related to educational decisions.  He also failed to  object
at trial when Sheri testified as to the  modifications  she  sought  or
when the trial court  gave  its  oral  pronouncement  addressing  these
issues at  the  trial's  conclusion.   Accordingly,  James  waived  his
complaints regarding Sheri's lack of adequate pleading.  See  Horne  v.
Harwell, 533 S.W.2d 450, 451-52 (Tex.Civ.App.--Austin 1976, writ  ref'd
n.r.e.) (issue waived where no special exception  taken  to  appellee's
failure to plead that the circumstances of the child had materially  or
substantially changed); Gonzalez v. Gonzalez, 484  S.W.2d  611,  612-13
(Tex.Civ.App.--El Paso 1972, no writ) (issue waived  where  no  special
exception  or  objection  made  to  appellee's  failure  to  plead  the
residence requirement in her divorce action).

      Furthermore, the jurisdiction of the  trial  court  was  properly
invoked by Sheri's motion to modify the  decree  with  respect  to  the
custody, control, visitation and possession of the boys.  As such,  the
trial  court  was  "vest[ed]  with  decretal  powers  in  all  relevant
custody, control,  possession  and  visitation  matters  involving  the
child[ren]."  Eliason v.  Eliason,  162  S.W.3d  883,  887  (Tex.App.--
Dallas 2005, no pet.) (quoting Liehold v. Plass, 413  S.W.2d  698,  701
(Tex. 1967)).  Moreover, although Rule 301 of the Texas Rules of  Civil
Procedure generally requires a judgment to conform  to  the  pleadings.
"Technical rules of practice and pleadings are of little importance  in
determining issues concerning the custody of children."   Liehold,  413
S.W.2d at 701. (citing Conley v. St. Jacques,  110  S.W.2d  1238,  1242
(Tex.Civ.App.--Amarillo 1937)).

      After having heard the bases  for  Sheri's  modification  of  the
decree, James failed to object and  participated  fully  in  the  trial
through argument, testimony and cross-examination.   Therefore,  it  is
of no legal consequence whether Sheri pled that she be  given  all  the
rights that she ultimately received.  See Liehold, 413 S.W.2d  at  701.
See also Tex. R. Civ. P. 67 ("When issues not raised by  the  pleadings
are tried by express or implied consent of the parties, they  shall  be
treated in all respects as if they had been raised by the  pleadings.")
 Mayo v. Hall, 571 S.W.2d 213, 215 (Tex.Civ.App.--Waco 1978,  no  writ)
(issues as to modification of visitation  and  support  tried  by  both
express and implied consent of the parties).  Accordingly, under  these
circumstances,  we  cannot  say  that  the  trial  court   abused   its
discretion in granting Sheri the modifications she  requested.   Issues
one, two, four and six are overruled.

      Travel Expenses

      The only evidence at trial on the issue  of  whether  the  decree
should be modified to make Sheri entirely responsible  for  paying  the
boys' private school expenses and  James  responsible  for  all  travel
expenses was Sheri's testimony  indicating  that  one-half  of  private
school tuition was $4,725 while the cost of flying both boys  to  Texas
four times a year was approximately $4,000.  At trial,  James  did  not
counter or object to Sheri's estimate that the  boys  would  make  four
trips to Texas a year[7] or offer any evidence of  the  frequency  with
which he intended to visit Alaska or  have  the  boys  come  to  Texas.
Neither did he present any alternative evidence to Sheri's estimate  of
the cost  of  airlines  tickets  at  the  bench  trial.[8]   Under  the
circumstances, we cannot say that the trial  court's  modification  was
arbitrary, unreasonable or without reference to guiding  principles  in
making the modification.  Issue five is overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                             Patrick A. Pirtle
                                                   Justice

-----------------------
[1]Originally appealed to the 10th Court  of  Appeals,  this  case  was
transferred to this Court by the Texas Supreme Court  pursuant  to  its
docket equalization efforts.  See Tex. Gov(t Code Ann. (  73.001  (West
2005).  We are unaware of any conflict between precedent  of  the  10th
Court of Appeals and that of this Court on any  relevant  issue.    See
Tex. R. App. P. 41.3.



[2]The decree provided that "the parties shall not remove the  children
from Brazos County, Texas, for the  purpose  of  changing  the  primary
residence of the children until modified by further order of the  court
of  continuing  jurisdiction  or  by  written  agreement."    (Emphasis
added).

[3]Although he received a letter asking  for  discovery  regarding  his
income, James did not respond.

[4]Although the parties agreement moots James  third  issue  pertaining
to airline exchanges, his complaint that  Sheri  did  not  specifically
plead for that relief would subject to the same analysis  and  fate  as
his complaint in issues one, two, four and six.

[5]Throughout the remainder of this opinion, provisions  of  the  Texas
Family Code will be cited as "§ ____" or "section ____."



[6]James's motion for a new trial was filed in January after the  trial
court had  issued  its  oral  pronouncement  at  the  bench  trial  and
memorialized its rulings in a written judgment or order nearly a  month
earlier.  The terms of that order were restated in  the  Amended  Order
signed March 5, 2010.

[7]Sheri's estimate assumed that James  would  exercise  his  right  to
have the boys visit Texas for  Thanksgiving  or  Christmas  each  year,
Easter vacation, forty-two days of summer possession and an  additional
long weekend.  The evidence at trial,  however,  indicated  there  were
long periods in which James did not exercise his  right  to  possession
and once exercised his right to summer possession of  only  two  weeks.
In 2008, the boys visited James in Texas during  Easter  vacation  and,
in 2009, spent two weeks in the summer with him in  Texas  in  addition
to another visit.  In 2009, James also visited the boys in Alaska.

[8]In his appellate brief, we  note  that  James's  recitation  of  the
facts contains one or more statements of fact  which  are  outside  the
record and not supported  by  the  evidence  presented  at  trial.   An
appellate court may not consider matters, or information,  outside  the
record.  See In re M.S., 115 S.W.3d 534, 546 (Tex. 2003)  ("this  Court
- or any appellate court - may only consider the  record  presented  to
it"); In re: Allstate Ins. Co., 232 S.W.3d  340,  343  (Tex.App.--Tyler
2007, no pet.) ("our review is limited to  the  record  as  it  existed
before the trial court at the time it made its decision");  Siefkas  v.
Siefkas, 902 S.W.2d 72, 74 (Tex.App.--El Paso 1995, no writ).



