                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00510-CV

IN THE INTEREST OF A.E.A.,
A CHILD


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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                                     OPINION

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                                  I. INTRODUCTION

      This is an appeal from a bench trial in a high-conflict suit affecting the

parent-child relationship.1 Appellant David Harris appeals from a judgment giving

Appellee Ginger Adams the exclusive right to make decisions concerning the

education of their son, A.E.A. In two issues, David argues that the evidence is

insufficient to support the trial court’s finding of a material and substantial change



      1
      On our own motion, we utilize fictitious names for the parents of A.E.A.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2012).
in circumstances and that the trial court infringed on his due process rights. We

will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

       When David and Ginger divorced in February 2008, A.E.A. was enrolled in

preschool and was about to turn five years old. The divorce decree provided for

joint conservatorship, and both David and Ginger were given ―the right subject to

the agreement of the other parent conservator, and further subject to the orders

of the Court herein below[,] to make decisions concerning the child’s education.‖

The divorce decree also included the following ―Special Provisions for

Education‖:

              18. The Court finds that it is in the best interest of the minor
       child to continue attending Crème de la Crème pre-school until such
       time as the minor child shall begin attending elementary school,
       AND IT IS SO ORDERED.

              19. The court finds that it is in the best interest of the minor
       child to attend Greenhill private school when he becomes eligible,
       AND IT IS SO ORDERED. The Court further finds that the parties
       may agree in writing for the minor child to attend a different school[,]
       and in that event[,] the minor child shall attend the school so agreed
       upon, AND IT IS SO ORDERED.

             20. The Court finds that [DAVID HARRIS] shall continue to
       pay the expenses for the minor child to attend Crème de la Crème,
       AND IT IS SO ORDERED.

              21. The Court finds that [DAVID HARRIS] shall pay all
       tuition and expenses of the minor child to attend Greenhill private
       school including expenses necessary for the minor child to
       participate in school activities, AND IT IS SO ORDERED.

            22. The Court finds that since it will be necessary for
       [DAVID HARRIS] to make arrangements to pay for the expenses of

                                          2
      attending Greenhill private school, that [DAVID HARRIS] shall make
      any necessary application, enroll the minor child[,] and make any
      necessary arrangements with Greenhill private school in order for
      the minor child to attend, AND IT IS SO ORDERED.

      After the divorce decree was signed, A.E.A. completed preschool and

kindergarten at Crème de la Crème but was not granted admission to Greenhill.

A.E.A. attended elementary school in the Plano Independent School District.

      In September 2010, David filed a petition to modify the parent-child

relationship in which he alleged that there had been a material and substantial

change in circumstances since the signing of the divorce decree. Among the

modifications David requested was that he be appointed as the person with the

exclusive right to make decisions concerning the child’s education.

      Ginger answered and filed a counterpetition to modify, alleging that the

circumstances had materially and substantially changed since the date of the

divorce decree.   Ginger requested, among other modifications, that she be

appointed as the person with the exclusive right to make decisions regarding the

child’s education, including the decision of where the child shall attend school.

Ginger also requested that temporary orders be made ordering David to pay child

support.2



      2
       The trial court signed temporary orders, ordering David to pay child
support and retaining Dr. Linda Threats as the parenting facilitator to assist the
parties in resolving parenting issues. David then amended his petition twice but
did not alter his declaration that the circumstances had materially and
substantially changed, nor did he alter his request to be named as the parent
with the exclusive right to make decisions concerning the child’s education.

                                        3
      After hearing argument on the competing motions, the trial court signed a

modification order, setting aside as moot the entire section of the divorce decree

entitled ―Special Provisions for Education‖ and granting Ginger the exclusive right

to make decisions concerning the child’s education. David requested findings of

fact and conclusions of law, which the trial court made, and filed a motion for new

trial raising due process complaints. This appeal followed.

              III. JUDICIAL ADMISSION OF MATERIAL AND SUBSTANTIAL
                             CHANGE IN CIRCUMSTANCES

      In his first issue, David argues that there is no evidence of a material and

substantial change in circumstances since the divorce decree was signed to

warrant a modification of the final decree.

      Under section 156.101 of the Texas Family Code, a trial court may modify

conservatorship of a child if (1) the modification is in the child’s best interest and

(2) the circumstances of the child, a conservator, or other party affected by the

existing conservatorship order have materially and substantially changed since

the rendition of the existing order.    Tex. Fam. Code Ann. § 156.101(a)(1)(A)

(West Supp. 2012); In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013,

no pet.).   One party’s allegation of changed circumstances of the parties

constitutes a judicial admission of the common element of changed

circumstances of the parties in the other party’s similar pleading. L.C.L., 396

S.W.3d at 718 (citing Delaney v. Scheer, No. 03-02-00273-CV, 2003 WL 247110,

at *5 (Tex. App.—Austin Feb. 6, 2003, no pet.) (mem. op.)). Admissions in trial


                                          4
pleadings are judicial admissions in the case in which the pleadings are filed; the

facts judicially admitted require no proof and preclude the introduction of

evidence to the contrary. Id.; see also Houston First Am. Sav. v. Musick, 650

S.W.2d 764, 767 (Tex. 1983). Thus, a ―judicial admission is conclusive upon the

party making it, . . . relieves the opposing party’s burden of proving the admitted

fact, and bars the admitting part[y] from disputing it.‖ Hennigan v. I.P. Petroleum

Co., 858 S.W.2d 371, 372 (Tex. 1993) (quoting Mendoza v. Fid. & Guar. Ins.

Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). This rule is based on the

public policy that it would be absurd and manifestly unjust to permit a party to

recover after he has sworn himself out of court by a clear and unequivocal

statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex. Civ. App.—

San Antonio 1951, writ ref’d).

      As set forth above, David and Ginger both filed motions to modify. David’s

first amended petition—his live pleading at the time of the modification hearing—

alleged that ―the circumstances of the child, a conservator, or other party affected

by the order [t]o be modified have materially and substantially changed since the

date of rendition of the order to be modified.‖ Ginger filed a counterpetition to

modify, alleging that ―[t]he circumstances of the child or a person affected by the

order have materially and substantially changed since the date of the rendition of

the order to be modified.‖ Thus, separately, both parties’ modification claims

required proof of the fact of changed circumstances of the child, a conservator, or

other party affected by the order to be modified. See Tex. Fam. Code Ann.

                                         5
§ 156.101(a)(1)(A). But David’s allegation of changed circumstances constituted

a judicial admission of that fact and established that element of Ginger’s claim for

modification, so Ginger was not required to put on proof of this admitted fact.

And because David judicially admitted this element of Ginger’s claim in his first

amended petition to modify, David is barred on appeal from challenging the

sufficiency of the evidence to support the fact he judicially admitted––a material

and substantial change in circumstances.        See L.C.L., 396 S.W.3d at 719

(holding that because competing motions for modification had been filed,

mother’s allegation of changed circumstances in her counterpetition for

modification constituted a judicial admission of that same essential element in

father’s claim for modification); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305

(Tex. App.—Houston [14th Dist.] 1995, no writ) (holding that in suit with

counterpetitions to modify, mother had judicially admitted to material and

substantial changes in the circumstances of her children in her pleadings and

was therefore barred from challenging the sufficiency of the evidence to support

the change of conservatorship); Thompson v. Thompson, 827 S.W.2d 563, 566

(Tex. App.—Corpus Christi 1992, writ denied) (holding that father had judicially

admitted in his motion to modify that there had been a material and substantial

change of circumstances and was therefore barred from challenging the

sufficiency of the evidence to support the change of conservatorship); Thornton

v. Cash, No. 14-11-01092-CV, 2013 WL 1683650, at *12 (Tex. App.—Houston

[14th Dist.] Apr. 18, 2013, no pet.) (mem. op.) (holding that the Thorntons were

                                         6
barred from arguing on appeal that there was no evidence that the circumstances

had changed because they had judicially admitted this allegation in their petition

in intervention and in their counterpetition for modification).3 We overrule David’s

first issue.

       3
        David argues in his reply brief that the statement in his first amended
petition cannot be treated as a judicial admission because the statement was not
―unequivocal.‖ We reject David’s argument for two reasons.

       First, he argues that the statement is contradicted by a sentence made in
his ―Response to Counter Petitioner’s Notice of Hearing on Temporary Orders
and Request for Temporary Orders‖ that there had ―been no material change in
circumstance that would warrant a temporary order requiring Petitioner to pay
child support.‖ But unlike a motion to modify custody, a motion to modify a child
support obligation does not require a showing of a material and substantial
change in circumstances when three years have elapsed since the order was
signed. See Tex. Fam. Code Ann. § 156.401(a)(2) (West Supp. 2012). Thus,
David’s statement of no change in circumstances for child support does not admit
any element that he was required to prove concerning child support. And David
does not challenge the child support order on appeal.

       Second, the requirement that a statement be ―unequivocal‖ in order to be
treated as a judicial admission is listed, along with four other factors, in Carr. 242
S.W.2d at 229. In setting forth the five factors, the Carr court drew a distinction
between judicial admissions in pleadings and testimonial admissions from the
witness stand. Id. The Carr court warned that ―[t]he attempt of some courts to
draw an analogy between the statements of parties on the witness stand and
judicial admissions contained in pleading and agreements of counsel is not
entirely convincing‖ and then utilized the five factors to determine when a party’s
testimonial declarations would preclude recovery by the party. See id. Some
cases, including two from this court, have nonetheless—despite Carr’s express
language limiting application of the five-factor analysis to testimonial
admissions—applied Carr’s five-factor analysis to judicial admissions set forth in
pleadings. Compare Lee v. Lee, 43 S.W.3d 636, 641–42 (Tex. App.—Fort Worth
2001, no pet.) (setting forth five factors and correctly applying them to appellants’
counsel’s statements approving an inventory), with Dickinson v. Dickinson, 324
S.W.3d 653, 657–58 (Tex. App.—Fort Worth 2010, no pet.) (setting forth five
factors and applying them to statements made in pleadings), and Kaplan v.
Kaplan, 129 S.W.3d 666, 669–70 (Tex. App.—Fort Worth 2004, pet. denied)
(setting forth five factors and applying them to statements in appellant’s petition
                                           7
           IV. NO ABUSE OF DISCRETION, NO DUE PROCESS VIOLATIONS

      In his second issue, David raises five subissues arguing that the trial court

abused its discretion and infringed upon his due process rights when the trial

court (a) entered findings of fact without any evidentiary support, (b) severely

limited his time for cross-examination of a recalcitrant witness, (c) allowed

testimony from documents not previously produced, (d) allowed personal bias to

affect its decision, and (e) made ―a series of decisions . . . throughout the

proceeding [that] resulted in the trivialization and evisceration of standard due

process rights upon which [David had] relied and to which he was entitled.‖ We

address each of David’s subissues below.

                A. Sufficiency Challenges to Findings of Fact

      In subissue (a), David argues that nothing in the record supports the trial

court’s findings that (1) there was a material and substantial change in

circumstances; (2) David made efforts to alienate A.E.A. from Ginger; (3) David

engaged in communications that were vulgar, profane, or indecent toward

Ginger; and (4) David failed and refused to engage in proper communication with

Ginger regarding A.E.A.’s education in a manner that was consistent with good



for bill of review). Because Carr’s five-factor analysis is expressly not applicable
to judicial admissions allegedly made in pleadings, we do not apply them to the
judicial admission in David’s pleading. See L.C.L., 396 S.W.3d at 719 (not
applying five-factor analysis to judicial admission of material and substantial
change in circumstances pleaded in modification suit); Casteel-Diebolt, 912
S.W.2d at 305 (same); Thompson, 827 S.W.2d at 566 (same); Thornton, 2013
WL 1683650, at *12 (same).

                                         8
co-parenting.4 David further argues that the record does not support the trial

court’s conclusion of law that the Greenhill Private School provision in the divorce

decree is moot and that the trial court did not issue adequate findings of fact.

      The pertinent findings of fact and conclusions of law made by the trial court

are set forth below:

      Findings of Fact – SAPCR

             1.    Petitioner and Respondent are the parents of the
      following child:

                   Name: [A.E.A.]
                   Sex: Male
                   Birth date: 03/24/2003

             2. It is in the best interest of the child that [David Harris] and
      [Ginger Adams] be retained as joint managing conservators of the
      child. Further, it is in the best interest of the child that [Ginger
      Adams] have the exclusive right to make decisions concerning the
      child’s education based upon the material and substantial change in
      circumstances of the child and the joint managing conservators
      since the date of the Final Decree of Divorce entered on February 7,
      2008. It is in the best interest of the child that all other rights and
      duties of the parties as joint managing conservators should remain
      as set forth in the Final Decree of Divorce entered on February 7,
      2008.



      4
       During oral argument, David’s counsel asserted that English was not
David’s first language and that his communications with Ginger in English
seemed harsher because of his language barrier. The trial court, however, is the
sole judge of the weight and credibility of the evidence, and the trial court had the
opportunity to observe David’s speech and language in the trial court and to take
any language issues into account prior to making its findings of fact. See, e.g.,
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing
Pool v. Ford Motor Co., 715 S.W.2d 629, 634–35 (Tex. 1986) (op. on reh’g)); In
re Marriage of Collier, No. 07-09-00146-CV, 2011 WL 13504, at *2 (Tex. App.—
Amarillo Jan. 4, 2011, no pet.).

                                         9
Findings of Fact – Possession

      ....

Findings of Fact – Child Support

      ....

Other Findings of Fact

      10. The child has not been accepted to attend Greenhill
Private School.

      11. Dr. Linda Threats has been unable to assist the parties
in dealing with their conflict in her role as parenting facilitator[,] and
the Court further finds as follows:

            a.     the relationship between [Ginger Adams] and
      [David Harris] is a high conflict relationship, especially in the
      context of the child’s education, primarily due to the improper
      conduct and condescending attitude of [David Harris];

             b.     [Ginger Adams] has demonstrated a desire,
      willingness[,] and ability to engage in proper communication
      with [David Harris] regarding the child’s education in a manner
      that is consistent with good co-parenting;

             c.   [David Harris] has failed and refused to engage in
      proper communication with [Ginger Adams] regarding the
      child’s education in a manner that is consistent with good co-
      parenting;

            d.     [Ginger Adams] has demonstrated the ability to
      make decisions regarding the child’s education that are in the
      best interest of the child and to communicate with [David
      Harris] regarding those decisions;

            e.     [David Harris] has failed to demonstrate the ability
      to make decisions regarding the child’s education that are in
      the best interest of the child and to communicate with [Ginger
      Adams] regarding those decisions;



                                   10
             f.    [David Harris] has engaged in conduct intended
      to alienate [Ginger Adams] from the child; and

             g.    [David Harris] has engaged in communications
      that are vulgar, profane, obscene, indecent, coarse, insulting,
      disparaging, condescending, or offensive toward [Ginger
      Adams].

      ....

Findings of Fact as Conclusions of Law

    15. Any finding of fact that is a conclusion of law shall be
deemed a conclusion of law.

Conclusions of Law – Conservatorship

       1.   [David Harris] and [Ginger Adams] should be retained
as joint managing conservators of the child and that [Ginger Adams]
should have the exclusive right to make decisions concerning the
child’s education. All other rights and duties of the parties as joint
managing conservators shall remain as set forth in the Final Decree
of Divorce entered on February 7, 2008.

Conclusions of Law – Possession

      ....


Conclusions of Law – Child Support

      ....


Conclusions of Law – Other

      6.     The Special Provisions for Education contained in the
Final Decree related to the child attending Greenhill Private School
are set aside as moot.

       7.     The appointment of Dr. Linda Threats as the Parenting
Facilitator should be terminated.


                                 11
      8.    The child shall continue to attend Kumon tutoring and
karate as set forth in the Temporary Orders entered in this case on
November 2, 2010, and the payment for such tutoring and karate
shall remain as set forth in the Temporary Orders entered on
November 2, 2010.

       9.     A mutual injunction as to both parties should be entered
as to the following:

               a.   disturbing the peace of the child or of any other
      party.

               b.   hiding or secreting the child from the other party;

            c.    making vulgar, profane, obscene, indecent,
      coarse, insulting, disparaging, condescending, or offensive
      remarks regarding the other party or the other party’s family in
      the presence or within the hearing of the child;

            d.    communicating with the other party in person, by
      telephone, electronically, or in writing in vulgar, profane,
      obscene, or indecent language or in a coarse, insulting,
      disparaging, condescending, or offensive manner;

            e.    threatening the other party in person, by
      telephone, electronically, or in writing to take unlawful action
      against any person; and

             f.   placing  one or     more     telephone calls,
      anonymously, at any unreasonable hour, in an offensive and
      repetitious manner, or without a legitimate purpose of
      communication.

       10. [Ginger Adams] shall be awarded a judgment of
$20,000.00 against [David Harris] for attorneys’ fees and costs, with
post-judgment interest, until paid in full.

      11. The Final Decree of Divorce signed on February 7,
2008 shall continue in full force and effect to the extent it is not
expressly modified herein.




                                   12
      A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions and are reviewable for legal and factual sufficiency of

the evidence to support them by the same standards. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292

S.W.3d 660, 663 n.3 (Tex. 2009).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence 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

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);

                                        13
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983). More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about the

existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d

253, 262 (Tex. 2002).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool, 715 S.W.2d at 635; Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

      1. Finding of Material and Substantial Change in Circumstances

      Regarding David’s first challenge to the findings of fact—that nothing in the

record supports the finding that there was a material and substantial change in

circumstances—as set forth above, David judicially admitted this fact in his

pleadings and is thus precluded from challenging on appeal the sufficiency of the

evidence to support this fact. See L.C.L., 396 S.W.3d at 719; Casteel-Diebolt,



                                        14
912 S.W.2d at 305; Thompson, 827 S.W.2d at 566; Thornton, 2013 WL 1683650,

at *12. We overrule this portion of David’s subissue (a).

    2. Finding that David Has Engaged in Conduct Intended to Alienate
                            A.E.A. from Ginger

      David challenges the trial court’s finding of fact that he had engaged in

conduct intended to alienate A.E.A. from Ginger. Specifically, David argues that

the finding lacks evidentiary support, and he attempts to show that it was Ginger

who attempted to alienate the child from him. The record, however, reveals that

as part of his modification request, David was pursuing a possession schedule in

which A.E.A. would spend seven days with him and then seven days with Ginger.

In addition, David requested that he be allowed to pick up A.E.A. every day from

school and keep him from 2:30 to 6:30 p.m.—even during the weeks that A.E.A.

is supposed to be with Ginger—so that David could work with A.E.A. on his

homework and take him to his afterschool activities. David testified that he was

not willing, however, to let Ginger pick up A.E.A. on David’s days when David is

not available to pick up A.E.A. after school.     Moreover, after Ginger’s father

passed away, David e-mailed Ginger: ―Don’t keep [A.E.A.] in the house with you

for [the] next few days. He should not witness all the sorrow that is going on, it

will be too hard on him.‖ David further urged Ginger: ―Don’t take [A.E.A.] to [the]

funeral tomorrow[;] he is too young and fragile[;] it will be too hard for him to

handle.‖ The preceding, viewed in the light most favorable to the trial court’s

finding of fact, constitutes more than a scintilla of evidence that David engaged in


                                        15
conduct intended to alienate A.E.A. from Ginger and is legally sufficient to

support the trial court’s finding. Furthermore, after considering and weighing all

of the evidence in the record pertinent to that finding, we cannot say that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the finding should be unfound. We

therefore overrule this portion of David’s subissue (a).

        3. Finding that David Engaged in Vulgar, Profane, or Indecent
                         Communications with Ginger

      David also challenges the sufficiency of the evidence to support finding of

fact 11g, which states that David ―engaged in communications that are vulgar,

profane, obscene, indecent, coarse, insulting, disparaging, condescending, or

offensive toward [Ginger].‖ Specifically, David argues that his communications

with Ginger did not rise to the level of ―vulgarity, profanity, or indecency.‖

      Of the 724 pages of exhibits that were admitted at trial, most contain

e-mails from David to Ginger that include statements like the following, which are

set forth exactly as they appear in the record with the exception that the child’s

name has been reduced to initials:

           The way you are steering this child’s education, you can be
            sure he will end up one just like your brothers or yourself who
            is working in dept. store selling cosmetics at age of almost 50.
            What other grade plans do you have for his future? may be
            driving cab like your father does.

           The latest approach that you have taken by sweet talking his
            teacher to make sure he will get passing grade will not work.
            You did the same thing when you were going to school and
            finally got your useless degree, is this what you have in mind
                                          16
   for him, or either marry a professional wife who will work and
   bring money home when he sits at home playing video games.
   I am sure you know who I am referring to, or get a degree like
   you did and work in department store.

 I am trying to figure out what is a good word to use for people
  like you ! if I call you a MOTHER I think I would be insulting
  every good mother in this world, if I call you a NANY I think
  they spend more times with the kids that they take care of and
  do more things for them than you have ever done for [A.E.A.],
  and if you want examples I will give you a few.

 When are you going to make [A.E.A.] priority in your life rather
  than yourself to come first and him second??

 Last Wednesday when I took [A.E.A.] to his Karate class when
  he took his socks off to go to his DoJo, I saw the socks that he
  is wearing don’t match. You send this child out of your house
  without matching socks, don’t even provide him with the bare
  necessity for his school function.

 I don’t know if you understood what Mrs. Stow said about
  [A.E.A.]’s math., ―he is right on the river‖ this is the same child
  who was ahead in math. when he was in first grade. He was
  going to different tutoring classes last year until you pulled him
  out of that one and enrolled in math. in Kumon. This is what
  Mrs. Stow had to say about Kumon ―their academic is
  repetitious, you can buy their works at any grocery store‖ I
  suggest you ask her what she think about Kumon. Why
  haven’t you realized this yourself? don’t you work with
  [A.E.A.] on his Kumon homework’s? He does the same
  homework’s for his reading, writing and math. over and over, it
  has been like this for long time. You had to sign him up for
  Study Buddy for his reading and writing now he is failing math.
  Every time you have tried to make decision for education of
  this child you have made wrong one.

 You are destroying this child’s future with your repeated wrong
  decisions you are making for him. CAN YOU DO ONE THING
  RIGHT FOR HIM????

 I have told you so many times, if you don’t have the time or
  desire to attend to his needs to let me know and I will do it.
                               17
   You don’t have the time to take him to his swimming classes,
   ice scatting classes, study with him, help him on his school
   projects, take him to his Martial art classes, take him to his
   Summer Camp, even attend his birth day parties with his
   friends when you are invited so far ahead of time and then you
   ask me to sign him up for Piano classes. What kind of mother
   are you any way. Take this as the last warning, either start
   taking care of this child the way he needs to be taking care of
   or I will take you back to court and let the legal system make
   you do it.

 Unfortunately these facts are too advance for your
  comprehension and probably don’t even know what I am
  talking about now or ever. You are the cause of his
  unhappiness and being under so much pressure from his unfit
  friends at school, you are the cause of his tears. Does any of
  these matter to you, we both know the answer.

 [A.E.A.] gave me your message about, you not wanting to take
  him to his karate classes if I don’t sign him up in Kumon for
  Summer time. Give me one reason he should go to Kumon in
  Summer time! he needs to rest in Summer time, his mind
  need to relax free of studing so that he will be ready for next
  year. What does him not going to Kumon has anything to do
  with his karate class?, or this is another one of your selfish
  reasons to stop his growth more than you already have.

 [Regarding Ginger’s decisions to not allow A.E.A. to go to a
  friend’s house:] ―It will only takes a sick mind in a sick person
  to make a child cry, three times in two and a half hours.‖

 I looked at the poster you made for [A.E.A.] This poster was
  supposed to be done to show [A.E.A.]’s progression in his life
  by using collage, not about your family picture album. There
  are more pictures of your family and relatives then [A.E.A.]’s
  pictures. What this poster tells everyone who looks at it is
  how you feel about your family and relatives rather than
  subject matter about [A.E.A.]

 The T shirt you put on [A.E.A.] on Tuesday when you sent him
  to school didn’t look good, it is too old and has been used too
  many times. Try to put better clothing on him, he deserves a
  lot better.
                              18
          The 100% Polyester Winter coat that [A.E.A.] was wearing
           today was too hot for him, he was complaining to be too hot
           this afternoon when I picked him up from school. Low this
           morning was only 52, either put on the Fall coat that I got him
           on for him or return it, so he can use it while he is here. There
           is no sense of you holding on to it and him not be able to wear
           it.

          You are taking a half sandwich to [A.E.A.]’s school at 8:15
           a.m. when his lunch break is at 11:15, bread will get soggy by
           the time when he starts eating it, furthermore a half sandwich
           is not nearly enough to fill him up, what happened to salad or
           chips?, that is why some Wednesdays when I pick him up
           from school he tells me he is hungry, pay more attention to
           him. you have one hour for lunch every day and I am sure you
           eat descent meal, how about [A.E.A.]?, can you not take lunch
           to him at your lunch break?, Last week I saw the way you had
           him dressed and now his food. Asking me to take you and
           him to dinner is not what he needs. There are so many other
           important things he needs that you are denying him of. When
           are you going to start paying attention to his needs???

          Try not to give [A.E.A.] fried food such as french fries or
           chicken nugets more than once a week, in order to cut down
           on him eating too much of fried greasy food. Look at
           American Pediatricien Journal for month of July of this year.

          Before you heat up [A.E.A.]’s food in the microwave any
           longer than you already have, call Dr. Shams and let him tell
           you what kind of harm it can do to him.

          Don’t start [A.E.A.] into wearing neckless, the next thing he will
           be asking is ear rings, noise rings and the list will go on. In
           this corrupt society specialy for teen agers, you either have to
           start showing them deciplin at the age that he is or deal with
           concequences later. Don’t let you emotions and motherly love
           get on the way of making the right decisions for him. He is the
           only one you have.

Our review of the record demonstrates that David’s e-mails to Ginger support the

trial court’s finding that his communications were ―coarse, insulting, disparaging,
                                        19
condescending, or offensive.‖ These descriptions are included in finding of fact

11g but are not challenged by David on appeal. Although David’s emails may

not rise to the level of ―vulgar‖ or ―profane,‖ we note that the trial court’s finding is

clearly cast in the disjunctive, using the word ―or‖ at the end of the list of

adjectives modifying the type of communications.            Because the trial court’s

finding is cast in the disjunctive and because the record contains legally and

factually sufficient evidence to support the unchallenged portion of the trial

court’s finding that David’s communications to Ginger were ―coarse, insulting,

disparaging, condescending, or offensive,‖ we hold that the evidence is legally

and factually sufficient to support finding of fact 11g. Accord, e.g., In re Rose,

144 S.W.3d 661, 729 (Tex. Rev. Trib. 2004, no appeal) (stating that when the

constitutional grounds for removal are stated in the disjunctive, error as to one of

the grounds is harmless; in order to prevail, the judge must show that none of the

Commission’s conclusions is correct).           We overrule this portion of David’s

subissue (a).

                            4. Finding on Co-parenting

      David challenges finding of fact 11c—which states that David has failed

and refused to engage in proper communication with Ginger regarding the child’s

education in a manner that is consistent with good co-parenting—arguing in a

portion of one sentence that there is no evidence in the record with respect to his

co-parenting abilities. We cannot agree; the record is replete with evidence of

David’s co-parenting style. The portions of the e-mails from David to Ginger that

                                           20
are set forth above—including those that deal with A.E.A.’s education—show that

many of David’s communications with Ginger are ―coarse, insulting, disparaging,

condescending, or offensive.‖ As such, they demonstrate that David has failed to

engage in proper communication with Ginger regarding A.E.A.’s education and

are inconsistent with good co-parenting.5 After reviewing the record, we hold that

the evidence is legally and factually sufficient to support finding of fact 11c. We

overrule this portion of David’s subissue (a).

      B. Conclusion of Law that Greenhill Provision in Decree Is Moot

      David also challenges the trial court’s conclusion of law that the provision

in the decree regarding Greenhill Private School is moot. He argues that this

conclusion does not flow from the record, from the relief requested, or from the

evidence.

      Following the modification hearing, the trial court gave Ginger the

exclusive right to make decisions concerning A.E.A.’s education. Because the

trial court gave Ginger the exclusive right to decide where A.E.A. attends school,

the Greenhill Private School provision in the divorce decree was no longer
      5
       In the final decree, the trial court

      ORDERED that the parties shall conduct themselves at all times in a
      manner that will minimize the exposure of the child to harmful
      parental conflict. Each party is ORDERED not to make negative
      remarks about the other party or the other party’s family. Each party
      is further ORDERED to be respectful to the other party and the other
      party’s family in the presence of the child. The parties are
      ORDERED to communicate with each other in a polite, civil, and
      cooperative manner and to attempt to resolve disputes concerning
      the child with dignity and by focusing on the best interest of the child.

                                              21
appropriate or necessary. Moreover, as set forth above, finding of fact 10 states,

―The child has not been accepted to attend Greenhill Private School.‖           It is

undisputed that A.E.A. was denied admission to Greenhill Private School by a

letter dated March 13, 2009, and that David did not attempt to reapply for

admission for A.E.A. in 2010, 2011, or 2012.6 The trial court therefore did not

abuse its discretion by entering a conclusion of law declaring the Greenhill

Private School provision in the divorce decree to be moot. See, e.g., Grant v.

Grant, 358 S.W.2d 147, 148 (Tex. Civ. App.— Waco 1962, no writ) (explaining

that ―[a] case, issue, or proposition is, or becomes moot or abstract, when it does

not, or ceases to rest on any existing fact or right‖). We overrule this portion of

David’s subissue (a).

          C. Adequacy of Findings for Both Prongs of Modification

      To the extent that David argues that the ―findings issued by the trial court

are devoid of essential facts to justify the court’s conclusion that its decision met

both prongs that must be satisfied to grant a modification,‖ we cannot agree. We

have held above that the first prong—a material and substantial change in

circumstances—was judicially admitted, and we have also held that the evidence

is legally and factually sufficient to support the findings of fact that were

challenged by David that support the second prong—best interest. The evidence

      6
       Ginger’s counsel argued during oral argument that the trial court also
could have determined that it was not in A.E.A.’s best interest to repeatedly be
rejected from Greenhill Private School, to attend a difficult school he could not
keep pace in, or to transfer to a school away from his friends.

                                         22
is thus legally and factually sufficient to support both of the statutory elements

required for modification,7 and we overrule this portion of David’s subissue (a).

      Having determined that the record contains legally and factually sufficient

evidence to support the trial court’s findings of fact and conclusions of law, we

overrule David’s subissue (a) in total.

 D. David Failed to Object and Make an Offer of Proof Regarding Any Due
      Process Violations that Occurred During Cross-Examination

      In subissue (b), David argues that the trial court infringed on his due

process rights when it refused to allow him to meaningfully cross-examine

Ginger.   Specifically, David complains that he had only ninety-eight seconds

remaining to cross-examine Ginger.         The record reveals that the trial court

allowed each side two and a half hours to present his or her case. Throughout

the course of the modification hearing, the trial court gave each party updates on

the time that he or she had remaining. After the trial court informed David’s

counsel that he had ninety-eight seconds remaining, David’s counsel continued




      7
        As set forth above, finding of fact 2 states, ―It is in the best interest of the
child that [David Harris] and [Ginger Adams] be retained as joint managing
conservators of the child. Further, it is in the best interest of the child that
[Ginger Adams] have the exclusive right to make decisions concerning the child’s
education based upon the material and substantial change in circumstances of
the child and the joint managing conservators since the date of the Final Decree
of Divorce entered on February 7, 2008.‖ [Emphasis added.] See Tex. Fam.
Code Ann. § 156.101(a)(1) (setting forth requirements for modification: that
modification 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 rendition of the order).

                                          23
asking questions that fill three and a half pages in the record but did not object to

the time limit, nor did he make an offer of proof.

      The trial court has ―inherent power‖ to control the disposition of the cases

on its docket ―with economy of time and effort for itself, for counsel, and for

litigants.‖ Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.]

1994, writ denied) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct.

163, 166 (1936), cert. denied, 516 U.S. 868 (1995)). Moreover, assuming that

the effect of the time limit was to exclude evidence, error may not be predicated

on a ruling excluding evidence unless a party makes known to the court the

substance of the evidence by an offer of proof. Tex. R. Evid. 103(a)(2). Because

David did not object to the two-and-a-half-hour time limit nor make an offer of

proof concerning evidence that was excluded because of the allegedly restrictive

time constraints, we have nothing to review. See Health Enrichment & Longevity

Inst., Inc. v. State, No. 03-03-00578-CV, 2004 WL 1572935, at *5 (Tex. App.—

Austin July 15, 2004, no pet.) (mem. op.) (holding that there was nothing to

review because appellants did not make an offer of proof concerning evidence

excluded due to time constraints). We overrule David’s subissue (b).

      E. David Failed to Object to Admission of Testimony from Diary

      In subissue (c), David argues that the trial court abused its discretion by

allowing Ginger, ―over a proper objection,‖ to ―retrieve an unproduced diary, read

it, and then put the information into evidence and the record.‖         The record,

however, reveals that David did not object when Ginger first asked to review her

                                         24
diary containing her work calendar in order to answer questions from David’s

counsel about when she had taken A.E.A. on a summer vacation.                 Ginger

referred to the diary, but she did not testify from it. More than one hundred

twenty pages later in the record, David objected to Ginger allegedly testifying

from the diary. David’s objection was untimely. See Tex. R. App. P. 33.1(a); see

also Tex. R. Evid. 103(a)(1). Because David’s objection was untimely, we hold

that any alleged error is not preserved and that David waived his complaint. See

Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). We overrule

David’s subissue (c).

    F. Record Does Not Support David’s Claims for Bias and Prejudice

      In subissue (d), David argues that the trial court’s negative disposition

toward him deprived him of a proceeding before a fair and impartial judge. David

points to the trial court’s statement on the record that David was ―irritating‖ the

judge and argues that the trial court’s bias directly affected its rulings in allowing

Ginger to use unproduced documents at trial, that is, her diary. As we have held

above, the trial court did not allow Ginger to testify from an unproduced

document; instead, she used the diary to refresh her memory regarding when

she took A.E.A. on a summer vacation. Moreover, the record does not support

David’s claims of judicial bias and prejudice.

      The Texas Supreme Court has stated,

      [J]udicial rulings alone almost never constitute a valid basis for a
      bias or partiality motion, and opinions the judge forms during a trial
      do not necessitate recusal unless they display a deep-seated

                                         25
      favoritism or antagonism that would make fair judgment impossible.
      Thus, judicial remarks during the course of a trial that are critical or
      disapproving of, or even hostile to, counsel, the parties, or their
      cases, ordinarily do not support a bias or partiality challenge.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v.

United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)). Furthermore,

expressions of impatience, dissatisfaction, annoyance, and even anger do not

establish bias or partiality. Id. at 240. A judge’s ordinary efforts at courtroom

administration—even a stern and short-tempered judge’s ordinary efforts at

courtroom administration—remain immune. Id. (quoting Liteky, 510 U.S. at 556,

114 S. Ct. at 1157).

      Here, the record establishes that the trial court instructed David to answer

the questions asked of him without adding nonresponsive material to his

answers, and when David continued to give nonresponsive answers, the trial

court stated its frustration on the record, called for a break in the proceedings,

and suggested that David’s attorney use the break to talk to David about his

responsiveness to questions. We hold that the trial court’s statements did not

establish bias or prejudice.8 See In re D.L.S., No. 02-10-00366-CV, 2011 WL

2989830, at *5 (Tex. App.—Fort Worth July 21, 2011, no pet.) (mem. op.)

(holding that, on the record presented, trial judge did not demonstrate any bias).

We overrule David’s subissue (d).

      8
       Because we hold that the record does not reveal any judicial bias against
David, there is no legal basis to support David’s request that the case be
transferred to another court.

                                        26
            G. No Deprivation of Due Process Rights Occurred

      In subissue (e), David argues that ―a series of decisions by the trial court

throughout the proceeding resulted in the trivialization and evisceration of

standard due process rights upon which [he] relied and to which he was entitled‖

and that such decisions caused ―an unacceptable risk of erroneous deprivation of

[his] right to make decisions regarding the education of the Child.‖ In essence,

David argues that the cumulative effect of the trial court’s allegedly erroneous

rulings deprived him of due process.        Because we have overruled each of

David’s due process arguments, holding that no due process violations are

apparent in the record, we overrule David’s subissue (e) and the entirety of his

second issue.

                                V. CONCLUSION

      Having overruled each of David’s issues and subissues, we affirm the trial

court’s judgment.

                                             SUE WALKER
                                             JUSTICE

PANEL: GARDNER and WALKER, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: July 18, 2013




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