Opinion filed March 29, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-17-00190-CV
                                   __________

      IN THE INTEREST OF A.D.C. AND E.N.C., CHILDREN

                    On Appeal from the 318th District Court
                           Midland County, Texas
                       Trial Court Cause No. FM 50087


                     MEMORANDUM OPINION
      Father appeals the trial court’s order granting Mother’s petition to modify the
parent-child relationship with their children, A.D.C. and E.N.C. The trial court
entered the order based upon the jury’s verdict in favor of Mother. Father brings
two issues on appeal. We affirm.
                                 Background Facts
      Father and Mother are the parents of A.D.C. and E.N.C. On February 25,
2010, the trial court entered a final decree of divorce dissolving their marriage. The
divorce decree appointed Father and Mother as joint managing conservators of the
children. Under the divorce decree, neither parent had the exclusive right to
determine the primary residence of the children.        Instead, the divorce decree
provided as follows:
      [T]he primary residence of the children shall be restricted to Midland
      County, Texas and any county contiguous thereto, and the parties shall
      not remove the children from Midland County, Texas and any county
      contiguous thereto for the purpose of changing the primary residence
      of the children until modified by further order of the court of continuing
      jurisdiction or by written agreement signed by the parties and filed with
      the court.
Furthermore, the divorce decree provided that the parties would have equal
possession of the children to be exercised on alternating weeks.
      On June 18, 2015, Mother filed a petition to modify the parent-child
relationship based upon an allegation of a material and substantial change in
circumstances. In the petition, Mother requested that she be permitted to designate
the primary residence of the children without regard to geographic restriction.
Mother also requested the trial court to implement a standard possession order to
modify Father’s access and possession. Subsequently, Father filed a counterpetition
to modify the parent-child relationship seeking to be the parent to designate the
primary residence of the children.
      The trial court considered the petitions seeking modification at a final hearing
conducted as a bench trial on November 12, 2015. The trial court notified the parties
of its decision in a letter ruling issued on that date. The trial court subsequently
entered a written order on January 20, 2016, wherein it denied each party’s request
seeking appointment as the conservator with the exclusive right to designate the
children’s primary residence. Furthermore, the trial court did not modify the prior
order restricting the children’s primary residence to Midland County or counties
contiguous thereto. In its findings of fact and conclusions of law, the trial court
found that modification was not in the best interests of the children. Accordingly,


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the provisions of the divorce decree remained intact with respect to the parents’
possession of the children and the children’s residence.
        On January 11, 2016, Mother filed a new petition to modify the parent-child
relationship.1 In this petition seeking to modify the terms of the divorce decree, she
alleged a material and substantial change based upon an allegation that the paternal
grandfather was arrested for indecency with a child in January 2016. The alleged
victim was not one of the children that are the subject of this appeal. Mother sought
appointment as the person with the authority to designate the primary residence of
the children. Mother also sought to deny Father access to the children until a doctor
had the opportunity to evaluate the children. Mother also requested temporary
orders seeking this requested relief.
        On February 12, 2016, the trial court held a hearing regarding Mother’s
request for temporary orders. The trial court orally pronounced that a material and
substantial change warranted the parties’ appointment as temporary joint managing
conservators with Mother appointed as the parent with the exclusive right to
determine the primary residence of the children.
        On April 20, 2016, the trial court entered written temporary orders with
respect to the February 12, 2016 hearing. These written orders contained a finding
that the children’s circumstances had materially and substantially changed since the
rendition of the most recent final order. The trial court appointed both parties as
temporary joint managing conservators and gave Mother the exclusive right to
designate the primary residence of the children within Midland County. The trial
court also adopted the standard possession order regarding Father’s access to and
possession of the children, and it prohibited contact with the paternal grandparents.

        1
         Mother filed this new petition after the hearing and letter ruling of November 12, 2015, but before
the entry of the written order of January 20, 2016, denying the parties’ motions seeking to modify the
possession provisions of the divorce decree.

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Father subsequently filed a counterpetition for the same relief and requested a jury
trial on the matter. Mother later filed a supplemental motion to modify the order to
remove the prior geographic restriction of Midland County and adjacent counties.
      On December 12, 2016, a jury trial on the parties’ requested modifications
began. After hearing the evidence, the jury returned a verdict to the effect that the
2010 divorce decree should be modified. The jury determined that Mother should
have the exclusive right to designate the primary residence of the children with
geographic restrictions. The geographic restriction imposed by the jury was Midland
County, within a 150-mile radius of Midland County, or within a 50-mile radius of
DFW Airport or Dallas Love Field. Based on this verdict, the trial court entered a
final order on April 27, 2017.
      Father subsequently filed a motion for new trial. The grounds asserted in the
motion included failure to grant a mistrial, improper jury argument, legal and factual
insufficiency, and newly discovered evidence. The trial court denied the motion for
new trial without conducting a hearing.
                                      Analysis
      In his first issue, Father asserts that the trial court abused its discretion by
entering the February 12, 2016 temporary order appointing Mother as the temporary
joint managing conservator with the exclusive right to establish the children’s
primary residence. Father contends that the trial court used the wrong legal standard
of a “material and substantial change” to analyze whether the temporary order at
issue was appropriate.       Father asserts that the pleading requirement of
Section 156.102 of the Texas Family Code governed the trial court’s decision for the
entry of temporary orders. See TEX. FAM. CODE ANN. § 156.102(a) (West 2014).
To the extent that Father is complaining in his first issue about the entry of the
temporary orders, his complaint is moot. See Mauldin v. Clements, 428 S.W.3d 247,
261–62 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (noting that temporary orders
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of a trial court issued during the pendency of a proceeding are superseded by the trial
court’s final order); see also Rafferty v. Finstat, 903 S.W.2d 374, 378 (Tex. App.—
Houston [1st Dist.] 1995, writ denied).
        Father also asserts that the final order was invalid under the pleading
requirements of Section 156.102(a). Specifically, Father contends that the jury trial
should have never occurred because Mother did not comply with the pleading
requirements of Section 156.102(a). We disagree with this assertion because we
conclude that the pleading requirements of Section 156.102(a) did not apply to
Mother’s subsequent petition to modify.
        Section 156.102 addresses a petition “to modify the designation of the person
having the exclusive right to designate the primary residence of a child [that] is filed
not later than one year after” the previous order established the same. See FAM.
§ 156.102(a). If Section 156.102 is applicable, the trial court is not permitted to
schedule a hearing or grant the relief sought unless an affidavit is attached to the
motion detailing specific facts supporting one of three allegations. Id. § 156.102(c).
One such allegation is “that the child’s present environment may endanger the
child’s physical health or significantly impair the child’s emotional development.”
Id. § 156.102(b)(1) (emphasis added).2
        We note at the outset that Mother’s second petition to modify filed on
January 11, 2016, sought to modify the original divorce decree. We further note that
the trial court’s order of January 20, 2016, did not modify any of the provisions of
the original divorce decree. To the contrary, the January 20, 2016 order denied the
modifications requested by each party. Accordingly, the provisions of the 2010




        Contrary to Father’s assertion, there is no requirement in Section 156.102 that there be a showing
        2

of “imminent” physical or emotional danger. See FAM. § 156.102(b).

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divorce decree remained in force when Mother filed her January 11, 2016 petition
to modify.
      The divorce decree did not grant either party the right to establish the primary
residence of the children. Section 156.102 does not apply to a suit seeking “an order
designating a person with the right to determine the primary residence of the children
in the first instance, instead of a modification of the person so designated.” In re
C.R.A., 453 S.W.3d 623, 631 (Tex. App.—Fort Worth 2014, no pet.) (quoting In re
R.C.S., 167 S.W.3d 145, 148 (Tex. App.—Dallas 2005, pet. denied)); see Ellason v.
Ellason, 162 S.W.3d 883, 886 (Tex. App.—Dallas 2005, no pet.) (noting “affidavit
requirement does not apply when at the time suit is filed no person possesses th[e]
exclusive right” to determine the primary residence of a child). Thus, even if Mother
filed her second petition to modify within a year of the entry of the divorce decree,
the pleading requirements of Section 156.102 would not have applied to her petition.
See In re C.R.A., 453 S.W.3d at 631; In re R.C.S., 167 S.W.3d at 148.
      The heightened pleading requirement of Section 156.102 did not apply to
Mother’s second petition to modify because it was not filed within one year of a
prior order designating a parent with the right to designate the primary residence of
a child. The fact that Mother had filed a previous petition seeking the same relief is
of no consequence under the statute because Section 156.102 is triggered by the
entry of a previous order designating a parent with the right to designate the primary
residence of a child rather than the filing of a previous motion seeking that relief.
We overrule Father’s first issue.
      In his second issue, Father complains that the trial court abused its discretion
by denying his motion for new trial. We review a trial court’s ruling on a motion
for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009). Under this standard, we must determine whether the
trial court acted without reference to any guiding rules or principles. Downer v.
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Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The exercise of
discretion is within the sole province of the trial court, and an appellate court may
not substitute its discretion for that of the trial court. Johnson v. Fourth Ct. App.,
700 S.W.2d 916, 918 (Tex. 1985). Rather, an abuse of discretion occurs only when
the trial court reaches a decision that is “so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law.” Id. at 917.
      As noted previously, Father presented multiple grounds in his motion for new
trial. He only raises two of these grounds on appeal: legal and factual sufficiency of
the evidence and newly discovered evidence. Both of these grounds involve the
same operative fact. Specifically, “Petitioner’s spouse’s testimony that he was and
is unable to practice his trade in Midland and surrounding/contiguous Texas counties
due to a provision in a ‘whistle-blowers’ settlement agreement--a claim which was
false and which was the foundation of Petitioner’s motion to modify the underlying
order.” Father claims that the evidence supporting the modification was legally and
factually insufficient because Mother’s spouse was not actually required to move in
order to continue practicing his occupation as a nurse anesthetist. He also contends
that his discovery that Mother’s spouse was not actually required to move constituted
newly discovered evidence.
      When a motion for new trial is based on a challenge to the sufficiency of the
evidence supporting the verdict, we apply the appropriate sufficiency standards to
evaluate the trial court’s denial of the motion. Enright v. Goodman Distrib., Inc.,
330 S.W.3d 392, 396 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The test for
legal sufficiency is whether the evidence at trial would enable reasonable and fair-
minded people to reach the verdict under review. City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). When reviewing the legal sufficiency of the evidence,
we consider the evidence in the light most favorable to the verdict and indulge every
reasonable inference to support it. Id. at 822. We credit favorable evidence if a
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reasonable juror could and disregard contrary evidence if a reasonable juror could
not. Id. at 827. Because jurors are the sole judges of the credibility of witnesses and
may choose to believe one witness and disbelieve another, we must not substitute
our opinion for that of the jury. See id. at 819. It is the role of the jury to resolve
conflicts in the evidence; accordingly, we must review the evidence in a light
favorable to the verdict and assume that jurors resolved all conflicts in accordance
with that verdict. Id. at 820. In evaluating a factual sufficiency challenge, we
consider and weigh all the evidence in a neutral light and will set aside the finding
only if the evidence is so weak or the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
      The record indicates that one of the reasons for Mother’s requested
modification was the fact that her new husband, B.G., had accepted a new position
in the Dallas/Fort Worth Metroplex. Mother testified that B.G. searched for a
position outside of Midland because of a confidential whistleblower settlement
agreement and employment contract that restricted his ability to work for
competitors within fifty miles of the Medical Center Hospital in Odessa. Both
Mother and B.G. were under the impression that the employment contract and
settlement agreement limited B.G.’s ability to work within fifty miles of Odessa after
his contract ended. However, during cross-examination, it was discovered that the
non-compete provision in the employment contract was only applicable during the
term of the contract. B.G. testified that he believed the non-compete clause was in
both the employment contract and the settlement agreement. B.G. further testified
that his attorneys told him that the geographic restriction was enforceable against
him after the settlement.
      Contrary to Father’s contention on appeal, B.G.’s belief that he was prohibited
from working near Odessa was not the only reason for Mother’s requested
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modification. Mother testified to other reasons why the modification was in the best
interests of the children—the primary reason being the paternal grandfather’s
commission of the offense of indecency with a child. To the extent that the jury
relied on Mother’s and B.G.’s reason for moving from Midland, B.G.’s testimony
that his attorneys told him that he was prohibited from working in the area constitutes
legally and factually sufficient evidence supporting the jury’s verdict.
      A trial court’s decision regarding whether to grant a new trial based on newly
discovered evidence is reviewed under an abuse of discretion standard. Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); In re C.J.O., 325 S.W.3d
261, 268 (Tex. App.—Eastland 2010, pet. denied). A party seeking a new trial based
on newly discovered evidence must show that (1) the evidence has come to light
after trial, (2) it was not owing to want of due diligence that the evidence did not
come to light sooner, (3) the new evidence is not cumulative, and (4) the evidence is
so material that it would likely produce a different result if a new trial were granted.
In re C.J.O., 325 S.W.3d at 268.
             A movant’s mere allegations will not suffice to obtain a new trial
      on the basis of newly discovered evidence; rather, admissible evidence
      must be introduced at a hearing on the motion for new trial establishing
      such essential facts as no prior knowledge on the part of the movant,
      the prior diligence exercised by the movant, and the nature of the newly
      discovered evidence.

Strong v. Strong, 350 S.W.3d 759, 772 (Tex. App—Dallas 2011, pet. denied).
      By definition, the evidence that Father cites did not constitute newly
discovered evidence because it was known at trial. See Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex. 1983) (listing the elements of a claim of newly discovered
evidence), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715,
720–21 (Tex. 2003). Evidence is only newly discovered if it comes to light after
trial. See In re C.J.O., 325 S.W.3d at 268. Furthermore, Father failed to establish

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in his motion for new trial that he exercised due diligence to discover this evidence
sooner. Therefore, the trial court did not abuse its discretion in denying Father’s
motion for new trial. We overrule Father’s second issue.
                                         This Court’s Ruling
        We affirm the trial court’s order of modification.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


March 29, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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