                              NUMBER 13-16-00373-CV

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


VICTORIA FLEMING,                                                                     Appellant,


                                                  v.

ISHMAEL FLEMING,                                                                       Appellee.


                      On appeal from the 146th District Court
                             of Bell County, Texas.


                                 MEMORANDUM OPINION 1

  Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Chief Justice Valdez




        1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket

equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West,
Westlaw through 2017 1st C.S.).
       Appellant Victoria Fleming (mother) and appellee Ishmael Fleming (father)

divorced. Under the divorce decree, the trial court granted mother the exclusive right to

designate the primary residence of their three-year-old son, I.F. 2 One year later, father

sought to modify this arrangement, requesting that he be granted the exclusive right to

designate I.F.’s primary residence due to changed circumstances. See TEX. FAM. CODE

ANN. § 156.101 (West, Westlaw through 2017 1st C.S.). Following a bench trial, the trial

court granted father’s requested modification. By two issues, mother contends the trial

court erred:        (1) by impliedly finding that the circumstances had materially and

substantially changed since the divorce decree, see id.; and (2) by admitting harmful

evidence allegedly not disclosed to her during discovery. We affirm.

                                            I.       BACKGROUND

       The following evidence was presented at the modification hearing. Mother and

father divorced in June 2014. Mother was awarded the house in which parties resided at

the time of the divorce. The house was subject to a mortgage in both parents’ names.

Father paid child support. On top of child support, father also agreed to pay half of any

daycare expenses after mother threatened to stop paying the mortgage and move to

Alaska with I.F. if he failed to contribute.

       At the time of the divorce decree in June 2014, mother worked at a military job

during the day. Under mother’s daytime schedule, I.F. attended daycare while mother

worked and then spent a few hours in the evening with father before being returned to

mother for the night.




       2   We will refer to the child by his initials throughout this opinion.

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      This arrangement changed in December 2014, when mother began working the

nightshift. Under the new schedule, I.F. attended daycare during the day while mother

slept and then spent the evenings and nights with father while mother worked.

      In March 2015, I.F.’s maternal grandmother, Katiana Selmon, moved in with

mother and I.F. Over mother’s objection, father testified that he had “a lot of concerns”

about this living arrangement because Selmon repeatedly used profanity and had a

history of drug abuse. 3 Father elaborated:

      If she is the one that's watching him, then my first concern is that lately he
      has been cursing, not a lot. . . . [B]ut every time he comes to my house he
      says at least one cuss word a day, you know, and it's always the—one of
      three words. He says the word “shit” or the word “bullshit” or the word “fuck
      this.”

      ...

      [My other concern] is that . . . [Selmon] has had CPS take her kids away
      from her numerous times. Even [mother] has been removed from her home
      by CPS due to drugs and, you know, a bunch of other reasons. But I just
      know that they were removed and they had to go live with a couple of
      different foster parents, and this is how me and [mother] met. . . . So this is
      another concern that I have. If he is being watched by her mother, then I
      don’t feel comfortable with [Selmon] watching him if she already had her
      kids removed from her for whatever reason.

      3   Specifically, mother objected to the testimony on the following ground:

                Mother:          Objection, your Honor. None of that was provided in discovery.
                                 We've had discovery responses and [father] answered he has no
                                 concerns about the child's present living.

                The Court:       Well, I don't think that's an objection. I think you can raise that in
                                 your cross examination, if you wish to, but I don't believe that's an
                                 objection you can make.

                 Mother:         I don't think he should be able to testify to it if it wasn't disclosed
                                 in discovery.

                The Court:       Well, you just told me that you asked if he had any problems with
                                 the mother and he said he did not.

                Mother:          That the present living circumstances raised no concerns for him.

                The Court:       Overruled.

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      Mother testified that she had been estranged from Selmon for some time until

March 2014 when Selmon reappeared in her life. Mother testified that she believed

Selmon had been sober “since the early 2000s” and that Selmon became a born-again

Christian. However, when pressed further on cross examination, mother testified:

             Q.    Was she arrested in 2012?

             A.    I'm not sure because we have not had that relationship like
                   that. She just come [sic] back into my life.

             ...

             Q.    So how do you know she's been clean that whole time if you
                   didn't have a relationship with her?

             A.    Because we have not had that closeness, but we've always
                   stayed in touch.

             Q.    Are there videos on YouTube of her?

             A.    I'm quite sure there are.

             Q.    Okay. And those were from around 2012?

             A.    I'm not—I'm not sure, to be honest with you. I didn't—I didn't
                   really watch them, so—

             Q.    Do you know what those videos are?

             A.    Yes, I do.

             Q.    What are they?

             A.    They are of her dancing.

             Q.    Was she on drugs at the time?

             A.    I'm not sure. I cannot tell you that.




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When asked whether she would allow someone to babysit I.F. with a drug history without

knowing how recently the person had last been on drugs or arrested, mother answered:

“Everybody has a past, so I would say, yes.”

       From March through July 2015, I.F. continued to attend daycare during the day

and spend evenings and nights with father. Around that time, mother decided to sell to

father the house awarded to her in the divorce decree. After the sale, mother moved to

another house with Selmon and father began making arrangements to move into the

house his ex-wife sold to him.

       In early August 2015, mother returned to working the dayshift at her job. With the

change in work schedule came a new living arrangement for I.F.              Under the new

arrangement, mother took I.F. out of daycare so that Selmon could babysit the child during

the day while mother worked. Mother also limited father’s access to the I.F. only to days

specifically permitted in the divorce decree, which generally set visitation at 6:00 p.m. the

day of visitation. Mother also adopted a strict 6:00 p.m. pick up policy, which deprived

father access to I.F. on his visitation days for being between one to seventeen minutes

late. The denial of access occurred on several occasions, the most significant of which

occurred on the eve of Thanksgiving 2015 when mother refused to release I.F. to father

for the holiday because father showed up at 6:07 p.m. to pick up I.F. Additionally, mother

denied father access to I.F. by claiming that I.F. was not home when, in fact, father could

hear I.F. playing in the back of mother’s house.

       In December 2015, the trial court heard the above evidence and modified the

custody order granting father the exclusive right to designate I.F.’s primary residence.

This appeal followed.



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                                      II.     DISCOVERY

       By her second issue, which we address first, mother contends the trial court erred

in admitting evidence regarding Selmon because father allegedly failed to disclose or

supplement his answers to interrogatories to state that he sought modification based on

Selmon moving into mother’s house.

       When responding to written discovery, a party must make a complete response,

based on all information reasonably available to the responding party or its attorney at

the time the response is made. TEX. R. CIV. P. 193.1. If a party learns that the party's

response to written discovery was incomplete or is no longer complete and correct, the

party must supplement the response to the extent that the written discovery sought other

information. Id. R. 193.5. If a party fails to make or supplement a discovery response,

the information not disclosed may be excluded at trial unless, among other things, the

trial court finds that the failure to respond did not “unfairly surprise” the other party. Id. R.

193.6(a)(2). The trial court has discretion to determine whether the proponent of the

evidence met its burden to show lack of surprise. See Bellino v. Comm'n for Lawyer

Discipline, 124 S.W.3d 380, 383–84 (Tex. App.—Dallas 2003, pet. denied). A trial court

abuses its discretion if it acts in a manner that is arbitrary or capricious or without

reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex.1985). We will uphold the trial court's determination if the ruling

has any legitimate basis. Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.—Dallas

2005, no pet.).

       Here, whether or not father failed to disclose information that Selmon moved into

mother’s house, Selmon lived with mother during the relevant period and Selmon’s



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checkered past was no secret to mother or father. Therefore, whether or not father was

required by the relevant discovery rules to supplement the information, we cannot say the

trial court abused its discretion in finding that mother was not surprised by the complained-

of information. See In re E.A.G., 373 S.W.3d 129, 145 (Tex. App.—San Antonio 2012,

pet. denied) (holding that trial court did not abuse its discretion in finding that the party

was not unfairly surprised by undisclosed information of which the party was aware prior

to trial); In re M.H., 319 S.W.3d 137, 147 (Tex. App.—Waco 2010, no pet.) (same);

Brunelle v. TXVT Ltd. P'ship, 198 S.W.3d 476, 480 (Tex. App.—Dallas 2006, no pet.)

(finding no abuse of discretion when appellant “knew enough about [an undisclosed]

witness to not be unfairly surprised”) (emphasis in original); see also In Interest of H.A.C.,

No. 06-16-00063-CV, 2017 WL 604064, at *4 (Tex. App.—Texarkana Feb. 15, 2017, no

pet.) (mem. op). We overrule mother’s second issue.

                                     III.   MODIFICATION

       By her first issue, mother contends that the trial court erred in impliedly finding

there was a material and substantial change in circumstances warranting modification.

A.     Standard of Review

       We review a trial court’s determination regarding conservatorship for an abuse of

discretion. See Gray v. Shook, 329 S.W.3d 186, 195 (Tex. App.—Corpus Christi 2010),

aff'd in part and rev'd in part, 381 S.W.3d 540 (Tex. 2012). A trial court abuses its

discretion if its decision is “arbitrary or unreasonable” or if it “fails to analyze or apply the

law correctly.” Id. The trial court does not abuse its discretion if “there is some evidence

of a substantive and probative character to support the decision.” Id. “Under an abuse-

of-discretion standard, legal and factual insufficiency are not independent grounds of



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error, but rather are relevant factors in assessing whether the trial court abused its

discretion.” Id. “[W]e engage in a two-prong analysis [under our abuse of discretion

standard]: (1) whether the trial court had sufficient information upon which to exercise its

discretion; and (2) whether the trial court erred in its application of discretion.” Gardner

v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.). Evidence is

legally insufficient if the record shows one of the following: (1) a complete absence of

evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the

only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is

no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the

vital fact. See Danet v. Bhan, 436 S.W.3d 793, 797 (Tex. 2014) (citing City of Keller v.

Wilson, 168 S.W.3d 802, 810 (Tex. 2005)).             Evidence is factually insufficient if the

evidence that supports a vital fact is so weak as to be clearly wrong and manifestly unjust.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

B.     Applicable Law

       In a suit to modify the parent-child relationship, the petitioner must establish the

modification sought would be in the best interest of the child and that “the circumstances

of the child, a conservator, or other party affected by the order have materially and

substantially changed since the . . . the date of the rendition of the order[.]” TEX. FAM.

CODE ANN. § 156.101.

       In deciding whether a material and substantial change of circumstances has
       occurred, a fact finder is not confined to rigid or definite guidelines; instead,
       the determination is fact specific and must be made according to the
       circumstances as they arise. Material changes may include (1) the
       marriage of one of the parties, (2) poisoning of a child's mind by one of the
       parties, (3) change in the home surroundings, (4) mistreatment of a child by
       a parent or step-parent, or (5) a parent's becoming an improper person to



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       exercise custody. . . . A material and substantial change in circumstances
       may be established by either direct or circumstantial evidence.

Arredondo v. Betancourt, 383 S.W.3d 730, 734–35 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (citations omitted).

       Additionally, “a course of conduct pursued by a managing conservator that

hampers a child's opportunity to favorably associate with the other parent may suffice as

grounds for redesignating managing conservators.” Id. at 735; see Epps v. Deboise, 537

S.W.3d 238, 246–47 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (holding there was a

material and substantial change warranting modification when mother consistently denied

father access to and information regarding the child, thereby interfering with father’s right

to spend time and bond with the child).

       Finally, the fact that a custodial parent must work to make a living and must employ

a babysitter to watch the child does not justify a change in circumstances warranting

modification where there is no evidence that the babysitter chosen by the custodial parent

is an improper person or otherwise abusive or neglectful to the child. See Heiskell v.

Heiskell, 412 S.W.2d 774, 776 (Tex. Civ. App.—Amarillo 1967, no writ).

C.     Analysis

       Mother asserts that there was no evidence that circumstances materially and

substantially changed since the time of the divorce decree and that, if anything, the

evidence conclusively established that the same circumstances existed as they did at the

time of the divorce decree. Specifically, mother points out that she worked the same

daytime schedule at the time of the divorce decree as she did at the time of the

modification. It is true that mother returned to the daytime shift. However, mother

overlooks that the circumstances had changed in other respects. Mother sold the house

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in which she and I.F. lived to father; Selmon moved in with mother without mother knowing

how long it had been since Selmon last did drugs or was arrested; mother removed I.F.

from daycare and allowed Selmon, who routinely uttered profanities, to assume the role

of I.F.’s babysitter; and mother implemented a strict 6:00 p.m. pick-up schedule on

father’s visitation days, which interfered with father’s right to spend time and bond with

I.F. Given the evidence of these changes, we conclude the trial court had sufficient

information upon which to exercise its discretion to grant the requested modification

based on a material and substantial change in circumstance and that the trial court

properly applied its discretion in this case. See TEX. FAM. CODE ANN. § 156.101; see also

Epps, 537 S.W.3d at 246–47; Arredondo, 383 S.W.3d at 734–35; Heiskell, 412 S.W.2d

at 776. We overrule mother’s first issue.

                                    IV.     CONCLUSION

      We affirm the trial court’s order granting father the exclusive right to designate I.F.’s

primary residence.



                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ
                                                         Chief Justice



Delivered and filed the
27th day of July, 2018.




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