                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00272-CV


LORI ROSENSTEIN                                                     APPELLANT

                                        V.

HOWARD ROSENSTEIN                                                    APPELLEE


                                    ------------

          FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION1

                                     ----------

      In this appeal from a divorce and suit affecting the parent-child

relationship, Appellant Lori Rosenstein raises no property issues. Instead, Lori

contends that the trial court abused its discretion (1) by conducting with no

notice, in her absence, and over her trial counsel‘s objection a bench trial on

possession, access, and child support after she received a favorable jury verdict

the previous day; (2) by modifying the possession order to give Appellee Howard


      1
       See Tex. R. App. P. 47.4.
Rosenstein more days of possession of their two children than Lori, who the jury

named as joint managing conservator with the exclusive right to determine the

primary residence of the children; and (3) by reducing child support based on

Howard‘s estimate of future earnings instead of relying on actual net resources,

violating section 154.062 of the family code. Lori also contends that (4) the

divorce decree giving Howard possession of the children on holidays based on

his Jewish religion, which are longer than the holidays on which possession of

the children was awarded her, violates the Establishment Clause of the First

Amendment to the Constitution of the United States as read into the Fourteenth

Amendment Due Process Clause. Because we hold that the trial court did not

abuse its discretion by conducting the bench trial in Lori‘s absence when her

lawyer was present and participated, that Lori did not preserve her notice

complaint, and that the trial court did not abuse its discretion in setting child

support, we affirm the trial court‘s judgment as to all matters except the

possession of the children. Because we hold that the possession order violates

Lori‘s rights under the Establishment Clause, we reverse the portion of the trial

court‘s judgment addressing possession and remand this case to the trial court

solely for a new trial on that issue.

I. Summary of Facts and Procedural Facts

      In 2005, Lori filed for divorce from Howard after more than nine years of

marriage. About three and one-half years after she filed her petition, a jury heard

some issues concerning the couple‘s children, R.M.R. and R.D.R., born in 1996


                                        2
and 1999 respectively. Lori chose not to provide the reporter‘s record of the jury

trial. Question 3 of the jury charge asked, ―Which joint managing conservator

should have the following exclusive rights:        1. Choice of religion‖ and ―2.

Educational decisions.‖ The jury found that Lori and Howard should be joint

managing conservators, that Lori should have the exclusive rights to designate

the children‘s primary residence and to make their educational decisions, and

that Howard should have the exclusive right to direct the children‘s religious

training.2

       Lori and Howard reached an agreement on property issues. The day after

the jury portion of the trial ended, the visiting judge hearing this matter conducted

a bench trial on the remaining issues of possession, access, and child support.

Lori was not present at the bench trial, but her trial counsel appeared and

participated. There is no evidence that she requested a continuance. After Lori‘s

trial counsel cross-examined Howard, the sole witness, she stated,

             [LORI‘S TRIAL COUNSEL]:         . . . [I] pass—to the extent that
       we are having a trial and I object. There was no notice. I‘ve got no
       documents to present to the Court what the cost of insurance, and I
       have not had an opportunity to bring my client.

              THE COURT:         Your client had notice of this hearing today.
       It was given to her in open court yesterday. We‘ve been in trial for
       eight days. It‘s overruled.


       2
        See Tex. Fam. Code Ann. § 105.002(c)(1)(B), (D), (2)(C) (West 2008)
(stating that party is entitled to verdict on issue of conservatorship and the
determination of which joint managing conservator has the exclusive right to
designate the child‘s primary residence but that the trial court may not submit to
the jury questions on the issue of any other right or duty of a conservator).


                                         3
      After the trial was completed, the visiting judge who heard this matter

signed a decree on November 21, 2008, awarding Lori the exclusive right at all

times to make decisions concerning the children‘s education and repeatedly

awarding Howard the exclusive right at all times to choose the children‘s religion.

But the decree also awarded Lori the exclusive right to choose the children‘s

religion during her period of possession.       That version of the decree also

awarded Howard superior, exclusive possession of the children on several

Jewish religious holidays:    Rosh Hashanah, Yom Kippur, Sukkot, Shemeni

Atzeret, Simchas Torah, Hanukkah, Tu Bishvat, Purim, Lag Baomer, Passover,

Shavuot, and Tisha B‘Av.

      The visiting judge hearing this matter issued findings of fact and

conclusions of law related to the November 2008 decree on January 5, 2009.

The same visiting judge heard Lori‘s amended motion for new trial, which she

had filed December 19, 2008. The visiting judge denied Lori‘s motion for new

trial but modified the decree on its own motion on January 30, 2009.

      Lori filed a motion for new trial from the modified judgment on February 20,

2009. A different visiting judge issued amended findings of fact and conclusions

of law on March 16, 2009. An elected judge of a civil district court3 granted Lori‘s

motion for new trial on March 26, 2009. On May 12, 2009, however, the visiting

judge who heard this case struck the amended findings of fact and conclusions of

law issued by the other visiting judge. And on May 14, 2009, the visiting judge

      3
       See Tex. R. Evid. 201(b).


                                         4
who heard the case signed an agreed order setting aside the elected civil district

judge‘s order granting Lori‘s motion for new trial and therefore reinstating the

modified judgment. Lori filed another motion for new trial after the reinstatement,

which the visiting judge who heard this case denied. Lori also requested findings

of fact and conclusions of law.

      On June 15, 2009, the visiting judge who heard this case signed the

―Amended Findings of Fact and Conclusions of Law‖ as prepared by Howard‘s

counsel. They provide in relevant part:

             5.    It is in the best interest of the children that LORI . . . and
      HOWARD . . . be appointed joint managing conservators of the
      children and that LORI . . . have the right to designate the children‘s
      primary residence.

      Findings of Fact—Possession

           6.    The periods of possession vary from the Standard
      Possession Order for the following reasons:

            (a)    the children are enrolled in school;

            (b)    HOWARD[‘S] flexible work schedule enables him to
                   provide the children the option to participate in
                   extracurricular activities at their selection;

            (c)    HOWARD . . . requested an extended visitation Order at
                   the time of rendition of the original order;

            (d)    LORI . . . failed to oppose the extended visitation Order
                   with any evidence whatsoever at the hearing when
                   HOWARD . . . requested an extended visitation Order at
                   the time of rendition of the original extended visitation
                   Order;

            (e)    LORI . . . has engaged in a course of conduct during the
                   pendency of the instant proceeding that has the effect of
                   alienating the children from HOWARD . . . ;


                                          5
(f)   HOWARD . . . has demonstrated during the pendency
      of this instant proceeding that he will foster the
      relationship between LORI . . . and the children during
      his periods of possession;

(g)   LORI . . . was given notice in open Court of the date and
      time of the hearing on possession, visitation, and
      access;

(h)   LORI . . . failed to appear at the hearing on possession,
      visitation, and otherwise offer any evidence;

(i)   HOWARD . . . appeared at the hearing on possession,
      visitation, and access and offered testimony supporting
      his request for an extended visitation Order;

(j)   The testimony offered by HOWARD . . . concerning
      possession, visitation, and access was credible and was
      not inconsistent with the current emotional, educational,
      and physical well-being of the children;

(k)   LORI . . . has misinformed the Court of the actual out-of-
      pocket expenses incurred for the insurance for the
      children during the pendency of this cause;

(l)   HOWARD . . . , based on the testimony presented, is a
      positive influence on the children‘s lives;

(m)   HOWARD[‘S] child support obligation as ordered was
      supported by evidence which was not contested by
      LORI . . . ;

(n)   LORI . . . interfered intentionally, on more than one
      occasion, with HOWARD[‘S] superior right to child
      custody during the pendency of the cause, resulting in
      further alienation of the children, necessitating a much
      broader visitation schedule for HOWARD . . . , as
      imposed by this Court.         Based on the evidence
      presented at trial and at hearings, the Court finds that
      the evidence was overwhelming that LORI . . .
      intentionally interfered with HOWARD[‘S] superior right
      to possession of the children during the pendency of
      this cause.      The evidence supporting this finding
      includes, without limitation, the testimony concerning
      LORI[‘S] attempt to withhold the children from


                           6
             HOWARD . . . during a period of his superior right of
             possession on February 28, 2007, secreting the children
             on that day, removing the children from school on that
             day under false pretenses, wrongfully alleging to the
             teachers and this Court that she was instructed to do so
             by Child Protective Services. Subsequent testimony at
             trial by the CPS investigator, teachers, and admissions
             by counsel for LORI . . . confirmed L[ORI‘S] statements
             were false and defamatory, despite the testimony of
             LORI . . . ;

       (o)   LORI . . . additionally intentionally failed to abide by the
             possession and access Order entered by the Court after
             rendition necessitating a writ of attachment for the
             children;

       (p)   LORI . . . made repeated allegations of physical and
             sexual abuse of herself and the children by
             HOWARD . . . at trial and during the pendency of this
             cause which were false based on the testimony
             presented at trial, including, but not limited to the lead
             CPS Investigator[‘]s findings that these allegations ―Did
             Not Occur‖, and further evidenced by the Jury‘s verdict
             appointing HOWARD . . . as Joint Managing
             Conservator; and

       (q)   HOWARD . . . and LORI . . . are not prohibited under
             the terms of the Final Decree of Divorce from exposing
             the children to any religious denomination provided
             such exposure does not physically, mentally, or
             emotionally endanger the children.

Findings of Fact as Conclusions of Law

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

....

Conclusions of Law—Conservatorship

      5.    LORI . . . and HOWARD . . . should be named joint
managing conservators of the children with the rights and duties
stated in the judgment, and LORI . . . should be named as the



                                   7
      conservator with the right to designate the children‘s primary
      residence.

      Conclusions of Law—Possession/Extended Possession Order

             6.    HOWARD . . . is entitled to periods of possession with
      [R.M.R.] and [R.D.R.] under the terms and conditions set forth in the
      order as the terms are in the best interest of the children. The
      standard possession order is not in the best interest of the children
      based on the following factors: (1) the age, developmental status,
      circumstances, needs, and best interest of the children; (2) the
      circumstances of the managing conservator and of the parent
      named possessory conservator; (3) the actions of LORI . . . during
      the pendency of this cause evidencing attempts to alienate the
      children from HOWARD . . . ; (4) LORI[‘S] failure to offer any
      evidence as to what periods of possession and access are in the
      best interest of the children; and (5) any other relevant factors.

             7.    HOWARD . . . and LORI . . . are not prohibited under
      the terms of the Final Decree of Divorce from exposing the children
      to any religious denomination provided such exposure does not
      physically, mentally, or emotionally endanger the children. The
      Court expresses no opinion nor has it in the past preferred the
      religious views of either Respondent or Petitioner. The parties are
      free to choose to expose the children to any religious denomination
      and practices, if at all, provided such exposure does not physically,
      mentally, or emotionally endanger the children.

             8.    The Modified Decree of Divorce signed on or about
      January 30, 2009, and the conditions contained therein are in the
      best interest of [R.M.R.] and [R.D.R].

      Neither party complains of the voiding of the other visiting judge‘s findings

of facts and conclusions of law or the agreed order voiding the civil district

judge‘s granting of Lori‘s motion for new trial.

II. Jurisdiction

      Howard contends that this court lacks jurisdiction because Lori filed her

notice of appeal late. Howard relies on the agreed order voiding the civil district

judge‘s order granting the motion for new trial but cites no law in direct support of

                                          8
his proposition. He makes no argument that the civil district judge‘s order was

void independent of the agreement. We hold that Lori‘s notice of appeal was

timely even though the civil district judge‘s order was voided by agreement.

      On January 30, 2009, the visiting judge who heard this matter signed a

modified divorce decree. Lori filed a timely motion for new trial on February 20,

2009.4 On March 26, 2009, a civil district judge granted the motion for new trial.

Under Baylor Medical Center, the trial court has power to ―ungrant‖ a previously

granted motion for new trial at any time until a new final judgment is signed, and

the appellate deadlines run from the date of that new judgment. 5 On May 14,

2009, the parties entered into an agreed order signed by the visiting judge setting

aside the March 26, 2009 order granting a motion for new trial; that is, the agreed

order ―ungranted‖ the new trial. Thus, the May 14, 2009 order reinstated the

prior judgment of January 30, 2009. 6 The appellate deadlines began anew on

the day of reinstatement, May 14. 7 On May 18, 2009, Lori filed a timely motion

for new trial from the reinstated judgment.8 The filing of a motion for a new trial

extends the filing deadline of a notice of appeal to ninety days from the date of




      4
       See Tex. R. Civ. P. 329b(a).
      5
       In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 230–31 (Tex. 2008).
      6
       See id. at 230.
      7
       See id. at 231.
      8
       See Tex. R. Civ. P. 329b(a).

                                        9
judgment,9 or in this case, reinstatement of judgment. 10 Accordingly, Lori‘s notice

of appeal, filed August 11, 2009, was timely filed.11

      Howard appears to implicitly argue without support that the agreement

voiding the civil district judge‘s order operated to void that order from its inception

and somehow shortened the appellate timetable. But Howard makes no explicit

argument that the civil district judge‘s order was void from inception, nor is there

any basis for such an argument.12 Further, the visiting judge signed the May 14,

2009 agreed order setting aside the civil district judge‘s March 26, 2009 order

granting the motion for new trial on the 104th day after signing the modified

decree, and therefore still within the visiting judge‘s plenary power held by virtue

of the filing of the motion for new trial.13      Accordingly, we reject Howard‘s

contention that Lori filed her notice of appeal too late and hold that this court

therefore does have jurisdiction to address Lori‘s issues.



      9
       Tex. R. App. P. 26.1(a)(1).
      10
          See Baylor Med. Ctr., 280 S.W.3d at 231.
      11
          See Tex. R. App. 26.1(a)(1).
      12
        See Tex. Gov‘t Code Ann. §§ 24.169, 24.303, 24.601 (West 2004 &
Supp. 2010); Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (―In general, as
long as the court entering a judgment has jurisdiction of the parties and the
subject matter and does not act outside its capacity as a court, the judgment is
not void.‖); see, e.g., Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009) (noting
that voidable judgment is not subject to collateral attack and must be appealed to
be corrected).
      13
          See Tex. R. Civ. P. 329b(e).


                                          10
III. Bench Hearing in Lori’s Absence

       In her first issue, Lori contends that the trial court abused its discretion by

conducting the bench trial on possession, access, and child support in her

absence and without notice to her after she received a favorable jury verdict the

previous day. To clarify, we note that the issues of possession, access, and child

support were not submitted to the jury and are issues reserved for resolution by

the trial court.14

       To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable. 15

An appellate court cannot conclude that a trial court abused its discretion merely

because the appellate court would have ruled differently in the same

circumstances.16 An abuse of discretion does not occur when the trial court

bases its decisions on conflicting evidence and some evidence of substantive

and probative character supports its decision. 17




       14
         See Tex. Fam. Code Ann. § 105.002(c)(2).
       15
       Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004).
       16
        E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995); see also Low, 221 S.W.3d at 620.
       17
        Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).


                                         11
         Lori argues that she had no notice of the trial and that we should review

the judgment as a postanswer default judgment. Her counsel, however, was

present and participated in the bench trial. The judgment was therefore not a

default judgment but a judgment on the merits.18 Further, Lori‘s trial counsel did

not object to the absence of notice until after she had completed her cross-

examination of Howard; the objection was therefore untimely and did not

preserve error.19     Accordingly, we cannot say that the trial court abused its

discretion by conducting the bench trial in Lori‘s absence. We overrule Lori‘s first

issue.

IV. Child Support

         In her fourth issue, Lori contends that the trial court abused its discretion

by setting child support based on an estimate of Howard‘s future earnings

instead of leaving it at the temporary child support level of $1,500 per month.

The trial court set child support at $843.25 per month. In the modified decree,

the trial court stated the following findings and conclusions on child support:

               1.   the amount of child support ordered by the Court is in
         accordance with the percentage guidelines;

              2.     the amount of net resources available to Howard . . . per
         month is $3,373.00;

              3.     the amount of net resources available to Lori . . . per
         month is $2,600.00;

         18
          See LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989).
         19
        See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.
1991) (op. on reh‘g); see also Tex. R. Evid. 103(a)(1).


                                           12
            4.     the amount of child support payments per month that is
      computed if the percentage guidelines of section 154.129 of the
      Texas Family Code are applied to the first $7,500 of Howard[‘s] net
      resources is $843.25; and

            5.     the percentage applied to the first $7,500 of Howard[‘s]
      net resources for child support by the actual order rendered by the
      Court is 25 percent.

      A trial court has discretion to set child support within the guidelines

established by the legislature.20 A trial court‘s child support determination will not

be reversed absent an abuse of discretion.21

      Section 154.062 of the family code provides,

      (a) The court shall calculate net resources for the purpose of
      determining child support liability as provided by this section.

      (b) Resources include:

              (1) 100 percent of all wage and salary income and other
              compensation for personal services (including commissions,
              overtime pay, tips, and bonuses);

              (2) interest, dividends, and royalty income;

              (3) self-employment income;

              (4) net rental income (defined as rent after deducting
              operating expenses and mortgage payments, but not including
              noncash items such as depreciation); and

              (5) all other income actually being received, including
              severance pay, retirement benefits, pensions, trust income,
              annuities, capital gains, social security benefits other than
              supplemental security income, unemployment benefits,
              disability and workers‘ compensation benefits, interest income


      20
        Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993).
      21
        Id.


                                         13
            from notes regardless of the source, gifts and prizes, spousal
            maintenance, and alimony.

      (c) Resources do not include:

            (1) return of principal or capital [or]

            (2) accounts receivable . . . .

      (d) The court shall deduct the following items from resources to
      determine the net resources available for child support:

            (1) social security taxes;

            (2) federal income tax based on the tax rate for a single
            person claiming one personal exemption and the standard
            deduction;

            (3) state income tax;

            (4) union dues; and

            (5) expenses for the cost of health insurance or cash medical
            support for the obligor‘s child ordered by the court under
            Section 154.182.

      (e) In calculating the amount of the deduction for health care
      coverage for a child under Subsection (d)(5), if the obligor has other
      minor dependents covered under the same health insurance plan,
      the court shall divide the total cost to the obligor for the insurance by
      the total number of minor dependents, including the child, covered
      under the plan.22

      Lori argues that no evidence received during the bench trial reflected a

change in Howard‘s circumstances or financial condition since the time

temporary child support was set. She also argues that the trial court violated

section 154.062 of the family code in lowering child support based on past



      22
       Tex. Fam. Code Ann. § 154.062 (West Supp. 2010).


                                          14
income tax records of his corporation. Finally, she argues that the amount of

child support falls below the statutory guidelines.

      Lori has not brought any portion of the record demonstrating how the trial

court arrived at the temporary child support amount of $1,500 per month.

Howard was the sole witness at the final bench trial. Howard, a lawyer, testified

that he primarily represents plaintiffs and that his income is typically derived from

contingency fees. In response to his counsel‘s question seeking an estimate of

Howard‘s earnings for 2008, the year of the trial, Howard responded, ―I‘m just

starting to pick back up from ‗07 and my best calculations are maybe this year 40

to 50,000. That‘s pretty much what I‘m getting back up to, and that‘s where we‘re

at right now in October.‖ Howard answered in the affirmative questions indicating

that his tax return for 2007 was already before the court (although Lori did not

bring such record to this court), that it was a bad year, and that he‘d only earned

about $11,000 in 2007 and had been forced ―to margin‖ about $80,000 from his

stock and bond accounts to live on that year. He also testified that his ―income

[was] starting to pick back up‖ and that ―we‘re looking about 40 to 50,000 this

year. It was higher before and then it tanked and then it‘s starting to pick back

up.‖ He further stated that if he ―had to guess, [he] would say that [his income]

would go up higher next year [2009].‖ Although Lori‘s counsel cross-examined

Howard, she did not ask him questions pertaining to child support other than

medical support, which is not at issue here. The trial court stated at the close of




                                         15
the bench trial that it would base child support on Howard‘s anticipated income of

$50,000.

      Using the Office of the Attorney General‘s 2009 Tax Charts, the trial court‘s

finding in the January 30, 2009 modified divorce decree that Howard‘s net

monthly resources are $3,373 indicates that the trial court placed Howard‘s

annual gross income at around $51,000.23 Given Howard‘s testimony and the

absence from the appellate record of any other pertinent evidence before the trial

court, we cannot conclude that the trial court abused its discretion by basing child

support on that figure or that the monthly child support of $843.25 is below the

statutory guidelines. We overrule Lori‘s fourth issue.

V. Possession

      In her third issue, Lori contends that the trial court abused its discretion by

awarding Howard holiday possession based upon his Jewish religion, violating

the Establishment Clause of the First Amendment to the United States

Constitution as applied to the States through the Fourteenth Amendment. On

direct examination by his counsel at the bench trial, Howard testified,

      Q.    . . . [Y]ou are requesting after the jury‘s verdict extended
            visitation, correct?

      A.    That‘s correct.

      Q.    Okay. And what are you requesting from the Court?

      23
        See Tex. Fam. Code Ann. § 154.061(b) (W est 2008); Office of
the     Attorney     General,      2009     Tax      Charts,      available    at
http://www.oag.state.tx.us/cs/taxcharts/2009taxchart.pdf (last visited August 10,
2011).


                                        16
A.     I am requesting that every other week like first, third and fifth
       weekends would be from pick up from school on Wednesday
       to drop off to school on Monday mornings.

....

Q.     And her—her karate classes are on what day of the week?

A.     Her karate class would be on—her pretest would be on
       Thursdays.

Q.     Okay. And you would take her to her pretest on Thursday,
       then her belt test on Friday?

A.     That‘s correct. Right. Both [R.M.R.] and [R.D.R.] used to do
       that. That‘s correct.

Q.     And—

A.     And Wednesdays were—are their midweek Hebrew classes.

Q.     Yeah. Wednesdays are important in a religious sense
       because of why?

A.     Well, that‘s the only way they could prepare for their bar and
       bas mitzvah. Ten years that they need to train for their bar
       and bas mitzvahs starts—the midweek Hebrew classes start
       in third grade.

Q.     And during the weeks that you do not have possession under
       any possession order entered by this Court, what are you
       asking this Court to do concerning Sundays?

A.     Sundays, I just want—I would like to have visitation. I would
       need to pick them up at 8:30 and drop them back off at Lori‘s
       at 1:00 o‘clock.

Q.     And—and what would the purpose of that pick up and drop off
       be on those Sundays?

A.     So that [R.M.R.] and [R.D.R.] do not miss 50 percent of their
       Sunday school teachings at the synagogue for their bar and
       bas mitzvahs. They‘ve been missing 50 percent of them for
       three and a half years.


                                  17
Q.     And as far as—[R.M.R.]‘s bar mitzvah is coming up in
       January, correct?

A.     That‘s correct.

Q.     Okay. And what is that—what date is that scheduled for?

A.     The Saturday the 20—January 24th.

Q.     Okay. So you are asking this Court to grant you some—a
       period of time of exclusive possession surrounding that bar
       mitzvah?

A.     Yes. I—I have some days with them under the regular
       schedule, but I‘m asking for some extra days so that it would
       end up being: I‘d have him for one week before his bar
       mitzvah and one week after so that—that he would be
       prepared for his bar mitzvah and there would be no—no
       disturbance or interruptions. I‘d get him ready. And then we
       can go do something for him after his bar mitzvah.

Q.     Okay. So that period is from January 19th to January 27th,
       correct?

A.     Yes. I be—that‘s correct. I think it‘s an eight-day period I‘m
       asking for there because the other days I already have.

Q.     That surrounding his bar mitzvah so you can prepare and then
       celebrate afterwards?

A.     Yes. He deserves it.

Q.     And you would want [R.D.R.] with you also during that time
       period?

A.     Absolutely. It wouldn‘t be the same without them together.
       They‘ve always done everything—they go to mid-Hebrew
       together. They study together. Yes.

....

Q.     Now, let‘s talk about the—you were granted by the jury
       exclusive right to the religious decisions concerning the
       children?


                                 18
A.     Yes, sir.

Q.     Okay. And—

       [HOWARD‘S COUNSEL]:                 May I approach, Your Honor?

       THE COURT:         Yes, sir.

Q.     . . . I‘ll show you what I marked as Respondent‘s Exhibit 1. Do
       you recognize that document?

A.     Yes.     These are—these are Additional Temporary Orders,
       yes.

....

Q.     Okay. And they‘ve since then been altered and/or amended,
       correct?

A.     Correct.

....

       (Respondent‘s Exhibit No. 1 was admitted.)

....

Q.     Okay. And in that order it addresses approximately 12 Jewish
       holidays, correct?

A.     Yes. Twelve Jewish holidays, correct.

Q.     Twelve of the 30-something Jewish holidays, correct?

A.     Yeah. Yeah, there‘s a lot of holidays.

Q.     Right.

A.     We picked only the major ones that we as a family celebrate.

Q.     Okay. So the holidays addressed in that order were holidays
       that [the children] grew up celebrating on a regular basis?

A.     Yes. Those are the 12, yes.

Q.     Okay. And—and—and when I say ―celebrate the holidays,‖
       it‘s not simply a prayer at dinner—


                                      19
A.   No.

Q.   —there are actual activities involved?

A.   Oh, yes. Yes. For example, like the Shavuot holiday, which is
     the giving of the torah. We used to have all the kids come
     spend the night at our house and do grab bags. They would—
     we would do bible questions, bible study. And if the kids got
     the questions right, they get the girl grab bag or the boy grab
     bag. And whoever stood up the longest, they answered the
     questions, won.

            So these holidays aren‘t just go to services, say
     prayers, go home. We lived these holidays. That‘s the
     difference. You know, it wasn‘t just a reform Jewish existence
     like you‘re—you‘ve seen in the standard court schedule that
     Jeff Kaiser actually wrote the court‘s schedule for the Jewish
     holidays. And—and I talked to him about that. And he says
     he even forgot to even put in Shavuot, which is one of the big
     ones. But these are the real ones that we as a family
     celebrated.

Q.   Okay. And did Lori ever protest or contest the celebration of
     these holidays on a regular basis while y‘all still lived together
     as a married couple?

A.   For many years she just—she wouldn‘t get involved in a lot of
     those holidays. You know, I was the one in charge of all the
     kids when they came, you know, and she wouldn‘t do the
     Shavuot thing with us. She‘d go off to another room. She
     wouldn‘t participate. I couldn‘t get her to participate.

            Or going and lighting the candle ceremonies on
     Hanukkah, that was—the kids and I were going to the
     lightings, Hanukkah ceremony candles every eight nights and
     reading the eight-night stories. Every night, we‘d read, in
     Hanukkah, the eight-night stories. Well, I would read them to
     the kids. She would have little or no part of any of that.

Q.   Okay. For example, one of the most recent holidays was
     Sukkot, correct?

A.   Oh, yeah. We just had seven days of Sukkot.

Q.   Seven days of Sukkot. And what is the traditional celebration
     for Sukkot?

                                 20
A.     You—you build a wooden structure in the back of your house
       to celebrate the fes—

Q.     It‘s called a—

....

A.     Sukkah is the building.

Q.     Okay. Okay.

A.     It‘s called Festival of Booths. It‘s a booth. And you eat dinner
       in there and you—you‘re celebrating the first feast. It‘s like the
       Jewish Thanksgiving. That‘s what I call it because it‘s the first
       harvest.

Q.     Okay.

A.     Celebrates the first harvest.

Q.     So [Lori] this year had possession of the children—

A.     Yeah.

Q.     —during Sukkot?

A.     Yes.

Q.     Pursuant to this flip-flop order every other year that she would
       get Sukkot, correct?

A.     Correct.

Q.     And to your knowledge, did they celebrate Sukkot—

A.     They didn‘t.

Q.     —in any way?

A.     They didn‘t celebrate Sukkot. They didn‘t celebrate Rosh
       Hashanah. They didn‘t celebrate Simchat Torah. They all ran
       in a row. They didn‘t—they didn‘t celebrate anything. I‘m the
       one—when I had them on Yom Kippur, took them to Yom
       Kipp[u]r services and we had everybody come over to the
       house from the synagogue. But they did not—they did not
       celebrate a single holiday when the four of them ran in a row.


                                   21
Q.     Okay. And—and in your opinion, is it important to the
       emotional well-being and the religious education of the
       children that they actually participate in these 12 holidays that
       you‘re asking the Court to award you visitation during?

A.     Yes. It‘s extremely important. In fact, one of the best
       examples I can give you is the Rosh Hashanah example.
       Rosh Hashanah is one of the holiest Jewish holidays that
       there is that we have always—none—none of the Jewish
       children go to school on Rosh Hashanah.           You‘re not
       supposed to go to school. It‘s prohibited. She sent them both
       to school. They‘re not supposed to be in school.

              And when it came to Yom Kippur, the holiest day on
       Yom Kippur, these are the ten days of—Rosh Hashanah is
       two days and Yom Kippur is one day, but it‘s ten days in
       between. They‘re not supposed to go to school on Rosh
       Hashanah. They‘re not supposed to go to school on Yom
       Kippur. Those are the only two days of the whole year that
       they‘re not supposed to go to school. They didn‘t go to school
       when they were with me on Yom Kippur. We were in services.
       And then we celebrate a break—fast at night. But they were
       in—and I sent a letter to the school for Yom Kippur excusing
       them because religious holidays are not considered absences.

....

Q.     The public schools actually excuse these absences for these
       Jewish holidays?

A.     Right. It doesn‘t go against their record at all as an absence.
       It‘s not considered an absence when it‘s a religious holiday,
       but they were sent to school on Rosh Hashanah. And none of
       the kids were—I made sure none of the kids went to school on
       Rosh Hashanah in all the years that we were together.

             But now that she had them, you know—well, I got that
       e-mail from her, [w]ell, I have the kids on Rosh Hashanah from
       X minute to Y minute and not one of those times did she let
       those kids celebrate Rosh Hashanah.

Q.     Now, there are—there are a few extra days here on these
       Jewish holidays. If there comes a time where, you know, [the
       children] say, Hey, we want to go see our mommy today, are
       you going to have a problem with that?

                                  22
A.   I‘ve taken them to her. I have no problem if the kids say, Hey,
     can we go early to Mom‘s? I got half a dozen e-mails saying
     can the—tell—asking Lori, Can the kids come over to you
     early? They want to go see a movie with you or they want to
     have dinner with you or they want to do something with you. I
     said, Can I bring them early? They want to do it. I don‘t—the
     difference is I don‘t use the kids as a sword to get at her.

Q.   Okay.

A.   If the kids want to go see her—

Q.   We‘ve—we‘ve been through all that. We‘re just—we need to
     stay focused on what you want by way of visitation.

A.   Sorry. Sorry.

Q.   Summarize for the Judge. You‘re asking—you‘re asking for
     the periods that you do not have your extended visitation on
     Sundays from 8:30 to 1:00 o‘clock, correct?

A.   8:30 to 1:00, yes.

Q.   And then Wednesdays?

A.   Yes.

Q.   You pick them up at school and take them back—back to
     school on Thursday morning for the periods that are not—

A.   The second and fourth weekends, yes.

Q.   —periods that are not in—when you have them in your
     possession?

A.   Right.

Q.   And for the first, third and fifth weeks, you‘re asking to pick the
     children up on Wednesday from school?

A.   Yes.

Q.   And take them to school Monday morning?

A.   Every other week, yes.



                                 23
Q.     So that on Wednesdays you can take the children to their
       Hebrew lessons?

A.     Yes.

....

Q.     Okay. And then you‘re asking for the—the holidays, not flip-
       flop back and forth because . . .

A.     She does not celebrate the Jewish holidays.

Q.     Okay. So you would like those 12 Jewish holidays as outlined
       in that previous order?

A.     Yes.

Q.     And you‘re also asking for just—just for this year, January
       19th through the 27th, to help [R.M.R.] prepare for and
       celebrate his bar mitzvah?

A.     Yes, sir. Yes. That‘s—that‘ll be the culmination of his ten
       years of studying.

On cross-examination, Howard testified as follows:

Q.     And you are—are not willing, as I understand it, to exchange
       days with [Lori]. If—if the Jewish holidays fall during her
       periods of possession, you‘re not willing to exchange those
       days; is that correct?

A.     I‘m not willing to exchange those days?       No.   I—I—she
       doesn‘t celebrate the Jewish holidays.

Q.     You‘re not willing to give her additional days, not the Jewish
       holidays, but additional days for possession and access if the
       Jewish holidays occurred during her periods of possession?

A.     No, ma‘am. I‘ve lost so much time with my kids. I need a lot
       of make-up time with these kids.

Q.     Okay. And, for instance, if the Court orders the Jewish
       schedule that you‘re requesting during time periods, three
       weeks could go by and [Lori] won‘t have access to her
       children; is that correct?



                                 24
      A.      Ma‘am, it‘s almost been three weeks and I haven‘t seen [the
              children].

      Q.      That‘s correct. And that was you who came to court and
              wanted that Jewish holiday schedule, is it not?

      A.      Yes. I wanted the Jewish holiday schedule. Not to exchange
              with her on Jewish holidays that she doesn‘t celebrate. She
              uses them to just keep them from me and that‘s why [I]
              haven‘t seen them in over three weeks.

      In the original decree, the visiting judge hearing this case awarded Howard

superior, exclusive possession of the children for twelve Jewish holidays and

also awarded him possession of the children

           every first, third, and fifth week for a period beginning at school‘s
           dismissal on Wednesdays (or 3:00 p.m. if school is not in session) and
           ending when the first school day after the weekend, Monday except in
           cases of school holiday, resumes (or 9:00 a.m. on Monday if school is
           not in session);

           every remaining Wednesday after school ends until school resumes
           Thursday (or every Wednesday at 3:00 p.m. until Thursday at 3:00 p.m.
           if school is not in session); and

           every remaining Sunday from 8:30 a.m. until 1:30 p.m.,

except during Lori‘s limited summer period of possession. That original version

also repeatedly awarded Howard the exclusive right at all times to choose the

children‘s religion; at the same time it awarded Lori the exclusive right to choose

the children‘s religion during her period of possession as well as the right to

direct the moral and religious training of the children during her period of

possession. In her motion for new trial, Lori challenged (1) Question No. 3 of the

jury charge on Establishment Clause grounds, citing Larson v. Valente24 and In

      24
        456 U.S. 228, 244, 102 S. Ct. 1673, 1683 (1982).

                                        25
re Knighton;25 (2) the trial court‘s conducting the bench trial in her absence; (3)

the disproportionate awards of periods of possession, again relying in part on the

Establishment Clause to complain that the award of extra possession time to

Howard ―block[ed her] almost entirely from being able to provide her children with

any religious instruction in her religious faith‖ and (4) child support.

      At the hearing on Lori‘s motion for new trial, the visiting judge agreed that

submitting Question No. 3, asking which parent should have the exclusive choice

of the children‘s religion, was improper. He indicated that he had given Howard

―a significant number of additional holidays‖ based on the jury‘s answer to the

improper question and that he would strike that part of the decree that was based

on the jury‘s answer.

      The visiting judge denied Lori‘s motion for new trial but modified the decree

on his own motion on January 30, 2009. The modified decree gives each parent

the right to direct the religious and moral training of the children during each

parent‘s respective period of possession. But the modified decree also awards

Howard possession of the children every Wednesday afternoon and evening and

every Sunday morning from 8:30 a.m. to 1:30 p.m. (except for Lori‘s holiday

possession and limited period of summer possession) and on a majority of

Sunday afternoons and nights.           In addition, the decree awards Howard

possession of both children on their bar and bat mitzvahs and for several days

preceding and following those dates. Further, while the modified decree reduces

      25
        723 S.W.2d 274, 277–78 (Tex. App.—Amarillo 1987, no writ).


                                          26
Jewish holiday time awarded Howard from twelve to four holidays and awards

Lori every Thanksgiving, Christmas, New Year‘s Day, and Easter holidays, the

modified decree also provides,

      3.    Provisions for Jewish Religious Holidays

            To the extent Jewish Religious Holidays conflict in any
      manner with other holidays or possession orders addressed
      herein, the following Jewish Religious Holiday possession
      order prevails. In addition to all other provisions for possession
      provided in this decree, IT IS ORDERED that Howard . . . shall have
      the following exclusive periods of possession on Jewish
      Religious Holidays:

            Rosh Hashanah—In all years for a period beginning at sunset
      the day prior to Rosh Hashanah and ending on the day after Rosh
      Hashanah.

            Yom Kippur—In all years for a period beginning at sunset the
      day prior to Yom Kippur and ending on the day after Yom Kippur.

           Hanukkah—In all years for a period beginning at sunset the
      day prior to Hanukkah holiday and ending on the day after
      Hanukkah.

           Passover—In all years for a period beginning at sunset the
      day prior to the holiday and ending on the day after Passover.
      [Emphasis added.]

      Some observances of Jewish holidays last days. It is unclear from the

decree whether Howard gets possession of the children for two nights and two

days for each Jewish holiday or for the length of the observance for each holiday

plus the day after the observance ends, and we do not need to sort that out here,

except to note that Christmas and Hanukkah celebrations often overlap, as do




                                       27
the celebrations of Passover and Easter.26 We note that in any event, in year

2016, when R.D.R. is still a minor, Hanukkah begins the evening of December

24.27 Under the divorce decree, which provides that Jewish holidays prevail over

all other periods of possession, Lori would lose her Christmas possession of

R.D.R., as well as her New Year‘s Day possession if the decree were intended to

give Howard possession for the entire eight days of Hanukkah.28

      As the Supreme Court of the United States has provided, ―The touchstone

for our analysis is the principle that the First Amendment mandates governmental

neutrality between religion and religion, and between religion and nonreligion.‖29

As our sister court in Amarillo has explained, the Establishment Clause, made

applicable to the states by the Fourteenth Amendment, 30

      mandate[s] a zealous protection of an individual‘s untrammeled right
      to religious belief so long as the teachings and practice of that
      religious belief are neither illegal or immoral. Accordingly, the courts
      of this state would have no more power to, directly or indirectly,
      attempt to effectuate by decree a conformance to, or condemnation
      of, certain religious teachings or practices, than would the

      26
         See Tex. R. Evid 201(b); see, e.g., Tracey Rich, A Gentile’s Guide to
the Jewish Holidays, Judaism 101, http://www.jewfaq.org/holidayg.htm
(last visited August 10, 2011); id. Jewish Holidays, Judaism101,
http://www.jewfaq.org/holiday0.htm (last visited August 10, 2011).
      27
       See Colel Chabad Interactive Calendar, http://www.colelchabad.org/
calendar.bp?gdate=12/1/2016 (last visited August 10, 2011).
      28
       See id.
      29
       McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844,
860, 125 S. Ct. 2722, 2733 (2005) (quotation marks omitted).
      30
       Cantwell v. Connecticut, 310 U.S. 296, 302, 60 S. Ct. 900, 902 (1940).


                                        28
      Legislature or the Congress have the power to establish a state
      religion by law. As relevant here, that means that one‘s religious
      beliefs, teachings, and practices, per se, are not grounds for
      depriving a parent of his or her children unless the teachings and
      practice of such beliefs are illegal or immoral. Thus, it is beyond the
      power of a court, in awarding the custody of a child or children[,] to
      prefer the religious views or teachings of either parent, even though
      the beliefs and practices of one parent might be more ―normal‖ or
      more in accord with majority religious views or practices. Therefore,
      as this Court earlier stated in the first appeal of this case, it is a
      fundamental principle that the State cannot prefer the religious views
      of one parent over the other in deciding the best interest of a child.31

      We do not know Lori‘s religious preference, if any. Howard testified that

she did not participate in the Jewish celebrations. Howard‘s counsel stated at

the hearing on her motion for new trial, ―And my recollection of the—of the trial

testimony was that I‘m really not sure what religion she prefers. If she‘s going to

remain Jewish or become Methodist, I don‘t know. . . . I think the time to give that

testimony would have been at the hearing on visitation and . . . access.‖ Lori‘s

latest motion for new trial, filed after the modified judgment was reinstated,

indicates that giving Howard possession every Sunday ―completely precludes

[her] having any opportunity to provide her children with religious instruction on

Sunday, which is her primary day for attending her church.‖ No evidence at the

trial on access and possession indicated that Lori‘s beliefs about religion,

whatever they are, are ―illegal or immoral.‖

      As Lori notes in her statement of facts in her brief, the decree provides

Howard with additional possession of the children for religious instruction in his


      31
        Knighton, 723 S.W.2d at 277–78 (citations omitted).


                                        29
faith while blocking her almost completely from being able to provide her children

with any religious instruction. Howard argues that Lori requested that he receive

extended possession and the ―four Jewish holidays‖ at trial, yet he does not

present the whole story. Lori indicated at trial that she was willing for Howard to

have the four Jewish holidays as well as Wednesday nights, but not every

Sunday morning. She further sought additional periods of possession of the

children in exchange for his Jewish holiday possession.        As the decree now

stands, absent her limited summer possession, Lori has Easter and Christmas

possession, but otherwise no Sunday mornings, no Wednesday nights, and less

than fifty percent of Sunday afternoons and nights, and all her periods of

possession are subject to Howard‘s superior right of possession during four

Jewish holidays, the extent of which is not made clear in the decree. Given the

total absence of evidence that Lori‘s religious preferences or preferences for no

religion are illegal or immoral or otherwise present a danger to the children, we

hold that the possession order violates Lori‘s rights under the Establishment

Clause. We sustain her third issue. Because of our resolution of this point, we

do not reach her second issue. 32

VI. Conclusion

      Having held that we have jurisdiction over this appeal and that the trial

court did not abuse its discretion in conducting a bench trial in Lori‘s absence or

in setting child support, we affirm the trial court‘s judgment as to child support as

      32
        See Tex. R. App. P. 47.1.


                                         30
well as to all unchallenged portions of the decree, including but not limited to the

divorce, the property division, conservatorship, and medical support. But having

held that the possession order violates Lori‘s rights under the Establishment

Clause, we reverse the trial court‘s judgment as to the possession order and

remand this case for a new trial solely on the issue of the possession of the

children.33




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: August 11, 2011




      33
      See Tex. R. App. P. 44.1(b); In re L.S.C., 169 S.W.3d 758, 764 (Tex.
App.—Dallas 2005, no pet.).


                                        31
