       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-19-00241-CV


                                   Jason O. Gordon, Appellant

                                               v.

                                   Amanda Martin, Appellee


        FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY
       NO. 16-0010-FC3, THE HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Jason Gordon, appearing pro se,1 appeals from a final order modifying his access

to the three children he has with his ex-wife, Amanda Martin. Specifically, Gordon contends the

presiding judge abused his discretion by: admitting an unauthenticated photograph of alleged

drugs; making findings of fact unsupported by the evidence; unreasonably restricting Gordon’s

access to his children; and ordering him to reimburse Martin for certain medical expenses and

attorney’s fees. We will affirm.


                                        BACKGROUND

               Gordon and Martin have three children together: twin twelve-year-old girls and a

younger boy. The couple divorced in 2016. Provisions in the final decree of divorce required



       1  Courts hold pro se litigants to the same standard as those represented by counsel.
United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 n.6 (Tex. App.—Austin 2000,
pet. dism’d).
Gordon to pay child support and to reimburse Martin for certain medical expenses. Martin filed

a motion to enforce those provisions in May of 2018.

               In July of 2018, while the motion to enforce was pending, Martin filed a petition

to modify possession and access and sought a temporary restraining order restricting Gordon’s

access to the children until her petition could be heard. In her petition, she alleged that the two

girls had discovered a ziplock bag of what appeared to be drugs in Gordon’s house while the

children were in his care. The girls allegedly took a photo of the ziplock bag and showed their

mother, who subsequently submitted a copy to the court. The court issued the temporary

restraining order and scheduled a hearing for August 2, 2018.

               At the August hearing, the only witnesses were Gordon, Martin, and an

investigator from the Texas Department of Child and Family Protective Services. Most of the

testimony revolved around the photo and the girls’ reports of unusual activity in the household.

Gordon testified that he did not know what was shown in the photo because he “never found the

bag.” He said he did not know who took the photo but conceded that the only individuals in the

house at the time the photo was taken were his three children. When asked by counsel, he

declined to testify that he believed the substance in the bag to be rock salt (i.e., instead of

methamphetamines) but denied any drug use since the divorce. He submitted to the court the

clean results of a recent urinalysis. He testified that he was opposed to any court-ordered drug

testing because he believed it unnecessary, an invasion of his privacy, and because “[t]he

children are not in danger.” He said he could not consent to testing of his house because he was

not the owner of the home. Gordon denied reports that he had frequent visitors that would stay

for only a few minutes at a time. He conceded to leaving the girls alone or unattended for up to

an hour at a time but denied that he and his girlfriend would lock themselves in the bedroom for

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hours at a time while the girls were in the home. He also conceded that he and his girlfriend had

had “some arguments” recently but was unsure about the accuracy of reports that neighbors

could hear them shouting at one another.

               The investigator testified that he had visited the children and asked them about the

photo. When he began to describe his conversations with the children about the photo and about

what they had observed in the household, counsel for Gordon raised a hearsay objection. The

court sustained the objection but allowed the investigator to continue testifying, explaining, “I’m

going to have an opportunity to interview the children in chambers, okay?” He continued, “[But]

as to what his perceptions are, I will let him testify to that.” The investigator testified that the

substance in the photo looked “suspicious” and that he was concerned that no adults were present

in the home at the time the substance was discovered. He attested to his impression that Gordon

and his girlfriend would retire to their bedroom for sometimes hours at a time behind a locked

door, and that the children’s needs might be neglected during that time. When asked about the

children’s safety, he responded that it was his impression that the children were “concerned” for

their safety but not “scared.” Finally, he testified that it would assist his investigation if Gordon

would submit to hair or fingernail testing and allow the Department to test the home for the

presence of drugs.

               Martin took the stand and testified that the girls showed her the photo, that it had

not been altered since it was taken, and that the timestamp—which with geolocation data

confirmed the girls’ presence in Gordon’s house—was correct. When Gordon’s attorney again

objected to this testimony as hearsay and challenged the authentication of the photograph, the

court answered:



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       Just so you know what the Court is going to do in the interview, I’m going to
       make a copy of [the picture of] that bag and sit down with the girls and say, “Did
       you take that picture?” That’s what I’m going to do.



The court then allowed admission of the photo as movant’s exhibit #1 and a second exhibit

showing geolocation data from the time the photo was taken. Martin continued to testify of her

concerns that Gordon might have relapsed into drug use and of her concerns for the welfare of

her children while in his care. She emphasized that the children love their father very much and

that “[t]hey just want him to be recovered and healthy.”

               On Martin’s motion and over Gordon’s objection, the court then conferred with

the two girls in chambers. See Tex. Fam. Code § 153.009(b) (requiring, on motion of any party

or on court’s own initiative, court to interview in chambers a child 12 years of age or older on

issues of conservatorship). There is no record of the exchange in chambers, and it is unknown

exactly what the girls said, but their testimony clearly impacted the court. When the proceedings

reconvened, the presiding judge summarized his interview as follows:


       [The girls] are really sweet. Completely credible. Smart, articulate. Really
       precious. Love their dad. I firmly believe that we have a problem. I’m cutting
       off access until we get the children in to see a therapist and let therapist work with
       dad. It’s incumbent upon dad to facilitate that. I believe that there is reason,
       clearly reason, to believe that there’s drug usage going on in the house. I believe
       that that is certainly a dangerous circumstance and certainly rises to the level of
       impairment to these children in terms of their emotional development. I want dad
       to participate in that counseling. I want a -- dad has the option to take a nail test
       today. If that is negative, that would be illuminating. If I could get a test of that
       house for drugs, that would also work very strongly in dad’s favor.


The court then issued an order requiring Gordon to submit to same-day fingernail testing, to

undergo counseling, and to pay for the counseling. The court also forbade any visitation



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between Gordon and the children until the court could review his compliance with the terms of

the order.

               When Gordon failed to comply with the order, Martin filed a motion to enforce.

The court ultimately held a final hearing to dispose of all issues. The judge heard additional

testimony from Martin, from the family therapist that had been working with the children, and

from Martin’s attorney. The court also admitted several more exhibits. Gordon did not attend

the hearing, although his attorney was present.

               The Court rendered a final order including provisions requiring Gordon to

undergo counseling for drug addiction and to submit to a series of fingernail tests. The court

ordered restricted supervised possession of the children every other Saturday “until [he] has

provided the negative nail[-]follicle drug test . . . and proof of attending the six counseling

sessions.” The court further provided that if Gordon would produce the clean test results and

proof of counseling, his possessory rights would revert to the unsupervised possession outlined

in the original decree of divorce. Finally, the court ordered increased child support, increased

payments toward health insurance, reimbursement of outstanding medical bills, and

reimbursement of Martin’s attorney’s fees.

               Gordon requested findings of fact and conclusions of law, which the court

provided. He also filed an unsuccessful motion for new trial followed by a motion to recuse the

judge. He timely perfected this appeal.


                                  STANDARD OF REVIEW

               Modification of an existing possessory order is proper when circumstances have

changed and the party moving to modify can demonstrate that the desired modifications are in


                                                  5
the best interest of the child or children subject to the order. See Tex. Fam. Code § 156.101.

The resulting modification order “will not be disturbed on appeal unless the complaining party

can show a clear abuse of discretion.” Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—

Austin 2006, pet. denied).     The trial court abuses its discretion “if it acts arbitrarily and

unreasonably or without regard to guiding rules or principles.” Id. (citing K–Mart Corp.

v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990)).


                                         DISCUSSION

                Gordon raises four issues on appeal.2 First, he argues that the court abused its

discretion in admitting Martin’s exhibit #1, the photograph depicting an unknown substance

resembling methamphetamines. Second, he characterizes several of the findings of fact as

“unsupported by the evidence” and “unreasonable.” Third, he contends that Martin is not

entitled to reimbursement of medical expenses. And finally, he challenges the court’s decision to

award Martin $5,400.00 in attorney’s fees.


Admission of Photograph

                Gordon first complains that the trial court abused its discretion by admitting

Martin’s exhibit #1 without anyone present to authenticate that photograph and its contents. This

       2  For the sake of brevity and clarity, we have consolidated Gordon’s issues based on the
substance of his arguments. See Tex. R. App. P. 47.1 (requiring an opinion “as brief as
practicable”); Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc., 997 S.W.2d 298, 304 n.9
(Tex. App.—Austin 1999, pet. denied) (consolidating points of error for discussion); Niess
v. State, Nos. 03-11-00213-CR, 03-11-00214-CR, 03-11-00215-CR, 03-11-00216-CR,
03-11-00217-CR, 2012 WL 2383300, at *1 (Tex. App.—Austin June 21, 2012, no pet.) (mem.
op.) (not designated for publication) (“Though Niess raises these arguments in thirteen separate
points of error, for convenience we have grouped the points of error into four legal issues
on appeal.”).

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is not an accurate characterization of the record. Martin brought a cell phone with her to the

stand and then testified that it is her phone, that the children had it with them while they stayed

with their dad, that she found the photo on the phone when they returned, and that certain

timestamp and geolocation data confirm the photo was taken in Gordon’s house. The presiding

judge did not ask Martin to authenticate the contents of the photo. Instead, the court explained

that he would confer with the two girls in chambers to authenticate the photo and find out more

about the circumstances that led them to take it. Gordon complains that there is no proof that the

girls authenticated the photo in chambers because no record was taken. However, the photo is

cumulative of other evidence of drug use, so any error in the admission of exhibit #1 would have

been harmless and not reversable on appeal. See Tex. R. App. P. 44.1. We overrule the issue.


Evidentiary Sufficiency and Reasonableness of Court’s Decision

               In his second issue, Gordon complains of eight of the court’s fifteen findings of

fact, arguing that they are “not supported by the evidence” and “arbitrary.” “[L]egal and factual

sufficiency challenges to the evidence are not independent grounds of error, but are relevant

factors in assessing whether the trial court abused its discretion.” Zeifman, 212 S.W.3d at 587

(citing In re D.M., 191 S.W.3d 381, 393 (Tex. App.—Austin 2006, pet. denied)). “The

traditional sufficiency review comes into play . . . however, the inquiry does not end there.” Id.

at 588 (citing Echols v. Olivarez, 85 S.W.3d 475, 478 (Tex. App.—Austin 2002, no pet.)). “The

appellate court then proceeds to determine whether, based on the evidence, the trial court made a

reasonable decision, that is, that the court’s decision was neither arbitrary nor unreasonable.” Id.

“When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he

did not have the burden of proof, the appellant must demonstrate on appeal that there is no


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evidence to support the adverse finding.” Id. (citing Croucher v. Croucher, 660 S.W.2d 55, 58

(Tex. 1983)). “When an appellant attacks the factual sufficiency of an adverse finding on an

issue on which he did not have the burden of proof, the appellant must demonstrate the finding is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly

unjust.” Id. at 589 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).


               Evidentiary Sufficiency

               Gordon challenges the evidentiary support for the following findings:

                   •   Finding 1: [Gordon] through counsel admitted to a prior history of
                       methamphetamine.

Gordon observes that it was he himself, and not counsel, that attested to the history of drug

abuse.   In fact, both he and his attorney referred to his history of drug use, which was

uncontroverted below. Thus, the record supports the finding.

                   •   Finding 2: Part of the evidence were prior court orders wherein [Gordon]
                       was ordered to submit to drug testing and as of the final trial, no
                       nail[-]follicle drug[-]testing results were provided and [Gordon’s]
                       previous testimony and rationale for his refusal to provide a drug test was
                       not credible.

Gordon complains that drug testing was merely optional. That characterization is refuted by the

record. The court’s order of August 2, 2018, unambiguously required Gordon “to submit to a

nail[-]follicle ten[-]panel drug test” “by 3:00 p.m. today.” It is undisputed that Gordon never

provided any testing results to the court. The finding is therefore supported by the record.

                   •   Finding 3: [Gordon] admitted to leaving the children in the home
                       unsupervised and this was consistent with the other testimony.

Gordon complains of this finding, explaining that “leaving two 12-year-old kids to watch a

7-year-old is proper with the age requirements for babysitting in this state.” Setting aside the



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veracity of that statement, Gordon has not shown how this finding is unsupported by the

evidence. To the contrary, multiple witnesses testified—and Gordon conceded—that he leaves

the children at home alone or unsupervised while he and his girlfriend lock themselves in the

bedroom. The record thus provides sufficient support for this finding.

                   •   Finding 4: The Court met with the children in chambers and the court
                       found them credible and then verified that they found a suspicious
                       substance in [Gordon’s] house while they were home unsupervised and
                       they took a photo of the item.

                   •   Finding 5: There was evidence that the children took a photograph of the
                       suspicious evidence that appeared to be an illegal substance, namely
                       methamphetamine, and the proof was that the picture was taken while in
                       [Gordon’s] home.

Gordon complains, “[N]o Record of the meeting was taken and the children never testified so

this is Hearsay.” He further laments, “No person with personal knowledge of the picture

testified and the only circumstantial evidence given was a GPS screen shoot [sic].” We disposed

of these arguments in our earlier discussion of the admission of the photograph.

                   •   Finding 10: [Gordon] was not involved in the children’s counseling with
                       Dr. Martin Eichler regarding the drug issue that resulted in this lawsuit.

Gordon objects to this finding, observing that he attended two sessions. The court, however, had

ordered Gordon to participate in at least six sessions. So while the evidence supports Gordon’s

interpretation that he was “involved” through his partial participation, the court’s finding to the

contrary is also supported by this record and is neither arbitrary nor manifestly unjust. See

Zeifman, 212 S.W.3d at 588.


               Reasonableness of Decisions

               In his challenge to Findings 12 and 13, Gordon disputes the reasonableness of the

court’s ultimate conclusions regarding access to the children:

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                       •   Finding 13: The court finds that the minimal counseling and drug testing
                           requirements are in the child’s [sic] best interest.

Gordon characterizes the counseling and testing requirements as “unreasonable” and

“unsupported by any statute or guiding principle” and therefore an abuse of discretion. But the

judge’s decision to require counseling and testing is reasonable on this record, which includes

Gordon’s concessions of a history of drug use and a current pattern of leaving the children

unattended for long periods of time, along with the children’s reports of the unusual behavior

within the home. Other courts have found similar measures to be in a child’s best interest when

there exists a documented history of drug use. See, e.g., J.A.S. v. A.R.D., No. 02-17-00403-CV,

2019 WL 238118, at *2 (Tex. App.—Fort Worth Jan. 17, 2019, no pet.) (mem. op.) (referring to

trial court’s conclusion that “step-up access” contingent on results of drug testing is in child’s

best interest); White v. Mapel, No. 01-95-01125-CV, 1996 WL 496908, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 29, 1996, no writ) (affirming final decree, including provision declaring

drug testing in child’s best interest); cf. Newell v. Newell, 349 S.W.3d 717, 721 (Tex. App.—Fort

Worth 2011, no pet.) (finding abuse of discretion in lower court’s requirement of random alcohol

testing as condition of access where “no evidence exist[ed] that [Father] has ever had an alcohol

addiction”).   We therefore disagree that the court abused its discretion in imposing the

access restrictions.

                       •   Finding 12: The variations in the Standard Possession Order were the most
                           minimal restrictions on Gordon’s possession and access possible that was
                           also [sic] in the best interest of the children.

Gordon challenges the court’s finding that the access restrictions are the least-restrictive

measures necessary to protect the best interest of his children. See Tex. Fam. Code § 153.193

(“The terms of an order that denies possession of a child to a parent or imposes restrictions or


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limitations on a parent’s right to possession of or access to a child may not exceed those that are

required to protect the best interest of the child.”). Gordon did not propose any lesser-restrictive

measures to the court below and does not do so here. Nor does he point us to any cases

supporting his argument.

               Having reviewed this record under the applicable standards, we conclude Gordon

has not met his burden to show the challenged findings of fact unsupported by the evidence or

unreasonable in light of the evidence before the court. See Zeifman, 212 S.W.3d at 587–88. We

therefore overrule the issue.


Medical Expenses

               Gordon contends the court abused its discretion in granting Martin the requested

enforcement relief with respect to the children’s unpaid medical bills. Specifically, he claims

that Martin did not satisfy a “condition precedent” of reimbursement when she failed to timely

provide him with records of the expenses. But Martin admitted into evidence a copy of all the

records and testified that she had provided Gordon with each record within thirty days of receipt.

Gordon disputes Martin’s characterization of that timeline. But even so, the trial court did not

abuse its discretion by resolving any discrepancy in Martin’s favor.              See In re S.E.K.,

294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied) (“[W]e . . . indulge every

presumption in favor of the trial court’s order” because “[t]he trial court is in the best position to

observe the witnesses and their demeanor.” (citing Garner v. Garner, 200 S.W.3d 303, 306 (Tex.

App.—Dallas 2006, no pet.))). We overrule the issue.




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Attorney’s Fees

               Gordon’s challenge to the award of $5,400 in attorney’s fees is not entirely clear.

In general, “the court may render judgment for reasonable attorney’s fees and expenses and order

the judgment and postjudgment interest to be paid directly to an attorney.” See Tex. Fam. Code

§ 106.002(a). In this case, Martin’s attorney testified that he has practiced law for twenty years

and that his customary hourly rate is $300 per hour. He outlined to the court where he had

invested his time and his efforts to minimize cost. He further testified that the $5,400 in fees

incurred was both reasonable and necessary considering the complexity of the case. Gordon

offered no evidence to the contrary. Where a party’s evidence on fees is uncontested, a trial

court does not abuse its discretion in awarding fees under section 106.002. See In re A.J.L.,

108 S.W.3d 414, 423 (Tex. App.—Fort Worth 2003, pet. denied).             We overrule Gordon’s

final issue.


                                        CONCLUSION

               Having found no error or abuse of discretion in the court’s Final Modification and

Enforcement Order, we affirm that order.



                                             __________________________________________
                                             Edward Smith, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: April 17, 2020




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