Opinion filed January 26, 2017




                                              In The


          Eleventh Court of Appeals
                                           __________

                                   No. 11-16-00010-CV
                                           __________

     IN THE INTEREST OF E.L.W. AND A.C.W., CHILDREN


                        On Appeal from the 42nd District Court
                              Callahan County, Texas
                            Trial Court Cause No. 20347


                        MEMORANDUM OPINION
      Bethany W. appeals the trial court’s order granting Jason W.’s petition to
modify the parent-child relationship with their children, E.L.W. and A.C.W.1 In her
first two issues, Bethany contends that the evidence presented at trial was
insufficient to prove that circumstances had materially and substantially changed
since entry of the agreed decree of divorce and that the modification was in the best
interest of the children. In her third issue, Bethany argues that the trial court erred
by introducing testimony based on its own personal knowledge. We affirm.




      1
       We will refer to the parties to this appeal as “Bethany” and “Jason.”
                                 Background Facts
      Bethany and Jason are the parents of E.L.W. and A.C.W. On February 26,
2015, the trial court entered an agreed final decree of divorce dissolving their
marriage. The agreed divorce decree designated Bethany as the parent with the right
to determine the children’s primary residence. The agreed order also contained a
“Morality Clause” that forbade an unrelated person of the opposite sex with whom
the parent was involved in an intimate relationship from being present between the
hours of midnight and 8:00 a.m. when the children were in the parent’s possession.
      In June 2015, Bethany’s boyfriend, Jason Moore, began living at Bethany’s
home with her and her two children. Moore had a history of drug use, and sometime
in mid-June, Bethany arrived home to find Moore using methamphetamine. Bethany
told Moore to leave the home and enter a drug treatment program. Moore entered a
drug treatment program, but he spent less than a week in the program. Moore lived
with Bethany after leaving the treatment program. Bethany testified that she knew
Moore had been sober since he left the program because she and his ex-wife
conducted random drug tests on Moore. Other individuals with criminal and drug
use histories had also stayed in Bethany’s home during the months following the
divorce.
      On July 14, 2015, Jason filed his petition to modify the parent-child
relationship due to his concerns regarding the safety and well-being of his children.
The trial court considered the petition at a bench trial conducted on October 1, 2015.
The trial court subsequently entered a written order granting Jason’s petition and
ordered that Jason would have the exclusive right to determine the children’s
primary residence. The trial court also ordered that Bethany would have possession
of the children in accordance with a standard possession order and that she would
pay child support to Jason.


                                          2
                                       Analysis
      Bethany challenges the sufficiency of the evidence supporting the trial court’s
decision to modify the conservatorship of the children. A trial court may modify the
terms and conditions of conservatorship if circumstances of the child or a
conservator have materially and substantially changed since the prior order and if
the modification would be in the best interest of the child. TEX. FAM. CODE ANN.
§ 156.101(a)(1) (West 2014). Bethany’s first issue addresses the “material and
substantial change” element, and her second issue addresses the “best interest of the
child” element. See id.
      “A trial court has broad discretion to decide the best interest of a child in
family law matters such as custody, visitation, and possession. Accordingly, we
review a decision to modify conservatorship for a clear abuse of that discretion.”
In re A.J.E., 372 S.W.3d 696, 698 (Tex. App.—Eastland 2012, no pet.); see
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its
discretion when it acts arbitrarily or unreasonably or when it fails to correctly
analyze or apply the law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
242 (Tex. 1985). In any case involving an issue of conservatorship, the best interest
of the child must always be the primary consideration of the trial court. FAM.
§ 153.002.
      Under the abuse of discretion standard, issues relating to the legal and factual
sufficiency of the evidence are not independent grounds of error, but only factors
used in assessing whether the trial court abused its discretion. In re A.J.E., 372
S.W.3d at 698. In determining whether an abuse of discretion has occurred because
the evidence is legally or factually insufficient to support the trial court’s decision,
we must inquire as follows: (1) Did the trial court have sufficient information upon
which to exercise its discretion and (2) did the trial court err in its application of
discretion? Id. at 698–99. The trial court does not abuse its discretion so long as the
                                           3
record contains some evidence of substantive and probative character to support its
decision. Id. at 699.
      Bethany contends that the trial court did not expressly find that there was a
material and substantial change in circumstances since the agreed divorce decree
was entered in February 2015 and that there was no evidence presented of the
conditions that existed in February 2015. She cites In re W.C.B. in support of this
contention.   337 S.W.3d 510, 514 (Tex. App.—Dallas 2011, no pet.) (“In
considering whether a material and substantial change of circumstances has
occurred, the trial court compares the evidence of the conditions that existed at the
time of the entry of the prior order with the evidence of the conditions that existed
at the time of the hearing on the petition to modify.”).
      We agree that the trial court did not expressly make a finding of a material
and substantial change in circumstances. However, when a court makes findings of
fact but omits an essential element of a ground of recovery or defense, the
presumption of validity will supply by implication any omitted, unrequested element
that is supported by evidence. In re P.H.R., No. 01-14-00101-CV, 2014 WL
7474207, at *6 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem. op.)
(citing TEX. R. CIV. P. 299). To prevent a missing element from being implied on
appeal, an appellant may request additional findings on omitted elements. Id. (citing
TEX. R. CIV. P. 298). Bethany requested findings of fact and conclusions of law after
entry of the order modifying conservatorship. However, nothing in the record shows
that Bethany requested additional findings on the omitted element.
      The evidence presented at trial shows that, after entry of the agreed order,
Bethany allowed Moore to move into her home and live with her and the children.
Bethany knew Moore had a history of drug use, and she continued to allow him to
live in the home after finding Moore using methamphetamine in the home. Further,
Bethany allowed other individuals with drug and criminal histories to stay in the
                                           4
home following entry of the agreed decree of divorce. This evidence shows a
material and substantial change in circumstances after the entry of the agreed decree
of divorce. Because the trial court expressly found that modification was in the best
interest of the children and because there is some evidence to support that there had
been a material and substantial change in circumstances, we will presume that the
trial court found a material and substantial change in circumstances. We also
conclude that the trial court did not abuse its discretion in making this implied
finding based upon the evidence outlined above. We overrule Bethany’s first issue.
      Bethany directs her second issue at the trial court’s best interest finding. We
review a trial court’s best interest finding in conservatorship proceedings by using
the Holley factors. In re M.C.M., No. 11-13-00375-CV, 2014 WL 3698283, at *5
(Tex. App.—Eastland July 17, 2014, no pet.) (mem. op.); see Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976). These non-exhaustive factors include (1) the
desires of the child, (2) the emotional and physical needs of the child now and in the
future, (3) the emotional and physical danger to the child now and in the future,
(4) the parental abilities of the individuals seeking custody, (5) the plans for the child
by these individuals, (6) the stability of the home, (7) the acts or omissions of the
parent that may indicate that the existing parent-child relationship is not a proper
one, and (8) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d
at 371–72.
      Although there is no evidence in the record as to every factor, Bethany’s
decision to permit Moore and others with drug abuse problems to be in her home
was a significant factor in the trial court’s decision. This evidence indicated an
impact on the children’s emotional and physical needs, as well as posing an
emotional and physical danger to the children (the second and third factors). It was
also relevant to Bethany’s parental abilities and the stability of the home (the fourth
and sixth factors). Conversely, Jason testified that he is able to provide food, a home,
                                            5
and clothing for the children. He stated that he is able to get the children to all
appointments and to school on time. Additionally, he testified that he has looked
into after-school and summer programs for the children to participate in while he is
working and that he also has his mother to assist him when necessary. After
reviewing the entire record and considering all of the evidence, we cannot conclude
that the trial court’s best interest determination constituted an abuse of discretion
because there was some evidence of a substantive and probative character to support
its decision. See In re A.J.E., 372 S.W.3d at 699. We overrule Bethany’s second
issue.
         In her third issue, Bethany argues that the trial court improperly introduced
testimony in violation of TEX. R. EVID. 605 based upon its own personal recollection
of past events regarding Moore. On the record at the conclusion of the bench trial,
the court recalled Moore’s divorce case wherein Moore admitted to being a
methamphetamine user. The trial court stated that it had knowledge of Moore’s
history and asked Bethany: “You know, but for Jason Moore, you wouldn’t be here
today. You understand that?” Bethany replied in the affirmative.
         Bethany contends that the trial court’s comments amounted to the presiding
judge testifying as a witness in the case in violation of Rule 605. We disagree.2
Rule 605 simply provides that “[t]he presiding judge may not testify as a witness at
the trial.” TEX. R. EVID. 605. In analyzing a complaint under Rule 605, the question
is whether the judge’s statement is the functional equivalent of witness testimony.
Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990). We conclude that
the trial court’s comments in this case did not constitute the functional equivalent of
witness testimony because they did not convey factual information not in evidence.
See In re C.C.K., No. 02-12-00347-CV, 2013 WL 452163, at *33 (Tex. App.—Fort


         2
        We note at the outset that the underlying proceeding was a bench trial, rather than a jury trial where
the harm from the presiding judge testifying as a witness would be much greater.
                                                     6
Worth Feb. 7, 2013, no pet.) (mem. op.). The trial court’s statements primarily
consisted of facts previously presented at trial regarding Moore and his
methamphetamine use.
      The trial court posed some questions to Bethany about the timing of Moore’s
divorce in comparison to when he started living with her. A trial court’s right to
examine witnesses in a bench trial is well established. Bhamani v. Citizens Enters.,
Inc., No. 11-13-00041-CV, 2015 WL 1779055, at *8 (Tex. App.—Eastland Apr. 16,
2015, no pet.) (mem. op.) (citing In re Estate of Vigen, 970 S.W.2d 597, 600 (Tex.
App.—Corpus Christi 1998, no pet.)). Bethany did not object to any of these
questions, thereby waiving any complaint on appeal to the questions. See id. With
respect to the question that the trial court posed to Bethany about Moore being the
reason why she was in court, the trial court’s comment was similar to the comment
made by the trial court in State v. Stewart where the trial court provided an
explanation at a hearing on a motion for new trial as to why it believed its initial
sentence was disproportionate. 282 S.W.3d 729, 736–37 (Tex. App.—Austin 2009,
no pet.). The Austin Court of Appeals concluded that Rule 605 was inapplicable to
the trial court’s comment. Id. We hold that the trial court’s comments in this case
did not implicate Rule 605 for the same reason. The trial court’s comments were
akin to an explanation to Bethany for the trial court’s eventual ruling. We overrule
Bethany’s third issue.
                                   This Court’s Ruling
      We affirm the order of the trial court.




January 26, 2017                                     JOHN M. BAILEY
Panel consists of: Wright, C.J.,                     JUSTICE
Willson, J., and Bailey, J.

                                            7
