Affirmed and Memorandum Opinion filed April 19, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00028-CV

                    MICHAEL JUSTIN JACOBS, Appellant
                                         V.
                             ADANA ALT, Appellee

                    On Appeal from the 395th District Court
                          Williamson County, Texas
                     Trial Court Cause No. 10-0968-F395

                  MEMORANDUM OPINION
      Appellant Michael Justin Jacobs (“Father”) appeals from the trial court’s
final order providing for conservatorship, child support, and possession of and
access to his minor daughter. Father argues that the trial court erred in giving
appellee Adana Alt (“Mother”) the exclusive right to designate the child’s primary
residence and in excluding two pieces of evidence. We conclude that the trial
court did not abuse its discretion in granting Mother the exclusive right to
designate the child’s primary residence and that Father did not preserve error in the
trial court regarding the exclusion of the evidence. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND

        Mother filed a petition to adjudicate parentage as to her daughter
(“Daughter”), seeking a final order regarding conservatorship and possession of
and access to Daughter. In his answer, Father admitted paternity. After Father did
not appear at trial, the trial court rendered a final order regarding conservatorship,
child support, possession of and access to Daughter (“First Order”).

       Father then filed a petition for a bill of review, requesting that the trial court
set aside the First Order because Father did not receive notice of the trial on which
the First Order was based. The trial court granted the bill of review as to the First
Order, though the trial court did not set aside temporary orders that it previously
had signed.1 The trial court subsequently held another trial and made an oral
pronouncement of judgment.

       Father learned that Mother’s brother, a registered sex offender, was about to
be released from prison. Father filed a request for a temporary restraining order to
prevent Mother’s brother from coming within five hundred feet of Daughter and
moved to reopen the trial evidence. The trial court granted the restraining order, an
order granting injunctive relief, and Father’s request to reopen the evidence.

       While the injunction was in place, Daughter told Father that she had been in
the presence of Mother’s brother. After an initial denial, Daughter repeated this

1
  In the statement-of-facts section of his brief, Father states that the trial court granted the bill of
review in October 2013, and Mother has not contradicted this statement. Therefore, we accept as
true that the trial court granted the bill of review in October 2013, and set aside the First Order.
See Tex. R. App. P. 38.1(g) (stating that “[i]n a civil case, the court will accept as true the facts
stated unless another party contradicts them”); Johnson v. Office of Attorney General of Texas,
No. 14-11-00842-CV, 2013 WL 151622, at *1 (Tex. App.—Houston [14th Dist.] Jan. 15, 2013,
no pet.) (mem. op.).


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statement to an interviewer from Child Protective Services. The trial court issued
temporary orders giving Father the exclusive right to designate Daughter’s primary
residence. The trial court ordered that Daughter undergo an interview at the Child
Advocacy Center and continue counseling with the counselor that the Daughter
had been seeing. During the interview at the Child Advocacy Center, Daughter did
not indicate that she had been sexually abused.

       Daughter’s counselor testified that she did not believe the child had been
around Mother’s brother. The counselor also testified that Daughter wanted to live
with Mother and that granting Father the exclusive right to designate the child’s
primary residence was harmful for Daughter. A Child Protective Services
representative testified that Child Protective Services had no qualms about
returning the child to Mother.

       The trial court signed a final order regarding conservatorship, child support,
possession of and access to Daughter. In that order, the trial court granted Mother
the exclusive right to designate Daughter’s primary residence. Father now appeals
from the order.2

                                ISSUES AND ANALYSIS
    A. Is the trial court’s order void?
       As a threshold matter, we address Father’s argument that the order from
which Father appeals is void. In his fourth issue, Father argues that this order is
void because, according to Father, the trial court issued the order based on Father’s
petition to modify the First Order, yet the First Order did not exist when the trial


2
  The Supreme Court of Texas transferred today’s case from the Third Court of Appeals to this
court. In cases transferred by the high court from one court of appeals to another, the transferee
court must decide the case in accordance with the precedent of the transferor court under
principles of stare decisis if the transferee court’s decision otherwise would have been
inconsistent with the precedent of the transferor court. Tex. R. App. P. 41.3.

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court allegedly modified it because the trial court set aside the First Order in
granting Father’s bill of review.

       In April 2010, Mother filed a petition to adjudicate parentage, in which she
sought a final order regarding conservatorship and possession of and access to
Daughter.     In April 2011, after Father did not appear at trial, the trial court
rendered the First Order. Father filed a petition to modify the First Order in
November 2011. Sixteen months later, in March 2013, Father filed a petition for
bill of review in which he asked the trial court to vacate the First Order. The trial
court granted the bill of review as to the First Order.3 In October 2013, the trial
court held another trial and made an oral pronouncement of judgment. Father then
filed a motion to reopen evidence and the trial court granted the motion.

       After hearing additional evidence, the trial court signed the final order from
which Father appeals. This order, signed in August 2014, is entitled “Order in Suit
to Modify Parent-Child Relationship.”                The title indicates that the trial court
rendered the order in a modification suit under Chapter 156. See Tex. Fam. Code
Ann. § 156.001, et seq. (West, Westlaw through 2015 R.S.). Nonetheless, we give
effect to the substance of the order rather than the title or form of the order. See
Curry v. Harris Cty. Appraisal Dist., 434 S.W.3d 815, 819–20 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). In the order, the trial court does not purport to
modify a prior order providing for conservatorship, child support, or possession of
and access to Daughter, nor does the trial court address any of the grounds on
which such an order may be modified. See Tex. Fam. Code Ann. § 156.101, et
seq. (West, Westlaw through 2015 R.S.). The trial court does not refer to Father’s
petition to modify, nor does the court purport to rule on this petition. We conclude
3
  As noted in footnote 1 above, under Texas Rule of Appellate Procedure 38.1(g), we accept as
true that the trial court granted the bill of review in October 2013, and set aside the First Order.
See Tex. R. App. P. 38.1(g); Johnson, 2013 WL 151622, at *1.

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that the substance of the order is not an order rendered in a modification suit, rather
it is an order rendered to take the place of the First Order after the trial court
granted the bill of review and set aside the First Order. See Curry, 434 S.W.3d at
819–20. Father argues that because the trial court granted his request to set aside
the First Order, there was no order to modify and therefore the trial court’s order,
which he characterizes as an order granting modification, is void.            Without
addressing whether an order in a modification suit would be void if there were no
prior order to modify, we conclude that Father’s argument lacks merit because the
order is not a modification order. Once the trial court granted Father’s bill of
review and set aside the First Order, the next step was to retry the issues
determined in the First Order and issue a new order. See Kiefer v. Touris, 197
S.W.3d 300, 302 (Tex. 2006) (per curiam). The trial court’s order did not modify
an order that had been set aside. See Curry, 434 S.W.3d at 819–20. Thus, we
overrule Father’s fourth issue.

   B. Did Father preserve error on his argument that the trial court
      improperly excluded from evidence a telephone call he recorded
      between Mother and Daughter?
      In his first issue, Father contends the trial court abused its discretion by
excluding from evidence a phone call he recorded between Mother and Daughter.
Father asserts this evidence proved Mother was coaching the child. The trial court
stated it would exclude this evidence because it was obtained in violation of state
and federal wiretap statutes.     On appeal, Father argues that he obtained the
evidence legally because he had vicarious consent to record the conversation. The
record does not contain an offer of proof.

      To preserve error on the ground that evidence was improperly excluded, a
party must inform the trial court of the substance of the evidence by an offer of
proof, unless the substance was apparent from the context. See Tex. R. Evid.

                                             5
103(a)(2); Gipson-Jelks v. Gipson, 468 S.W.3d 600, 606 (Tex. App.—Houston
[14th Dist.] 2015, no pet.).      Father did not make an offer of proof showing the
substance of the evidence he sought to introduce, and the substance of this
evidence was not apparent from the context. Thus, Father did not preserve error on
his complaint. See Gipson-Jelks, 468 S.W.3d at 606. We overrule Father’s first
issue.

   C. Did Father preserve error on his argument that the trial court erred in
      excluding expert testimony that Daughter was afraid of her uncle?
         Father asserts in his second issue that the trial court erred in excluding expert
testimony from Dr. Kelley Baker regarding an examination of Daughter by a
psychologist, Dr. Mark White. At trial, Father asked Dr. Baker if coaching a child
to lie fell under the category of terrorizing a child. Father then asked Dr. Baker
how she would recommend proceeding to protect Daughter from emotional abuse
in this case. Dr. Baker responded that she had not met Daughter, so it would be
very hard for her to say what would be in Daughter’s best interest. Dr. Baker
began to give a general opinion about children, but Mother objected and the trial
court sustained the objection.

         Father then asked how Dr. Baker recommended keeping a child from being
“traumatized” if, hypothetically, a child had been coached to lie about being
around “her pedophile uncle,” and then re-coached.             Mother objected on the
grounds that it was “inappropriate” for Father to “create hypotheticals that mirror
[Daughter]” in an attempt to get a diagnosis out of a doctor who had never met the
child. Father’s counsel stated that Dr. Baker had spoken with Dr. White and that
Daughter told Dr. White she was afraid of her uncle. Without ruling on Mother’s
objection, the trial court decided to take a recess. After the recess, the trial judge
stated that he believed Father had violated a court order by taking the child to see
Dr. White. The parties made arguments to the trial court regarding whether or not
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taking the child to see Dr. White violated the trial court’s order. The trial court
then directed Father to continue questioning Dr. Baker, and Father passed the
witness.

       On appeal, Father asserts that the trial court erred in excluding Dr. Baker’s
testimony because the trial court’s order did not prevent Father from taking the
child to see Dr. White for an examination or, in the alternative, Father had the
authority to take the child to see Dr. White for a psychological evaluation under
Family Code section 32.005. Father argues that the trial court should have allowed
Dr. Baker to offer suggestions on how to proceed with therapy.

      Father does not identify the specific ruling that he is challenging on appeal.
To the extent Father takes issue with Mother’s objection that her hypothetical
question to Dr. Baker was inappropriate, the trial court did not rule on that
objection. The trial court took a recess, but did not rule that Father’s question was
impermissible. After the recess, Father passed the witness. There is no trial court
ruling for this court to review. See City of Galveston v. Galveston Mun. Police
Ass’n, 57 S.W.3d 532, 540 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
To the extent Father takes issue with the trial court’s ruling on Mother’s objection
to Dr. Baker beginning to give a general opinion about protecting children from
emotional abuse, Father did not make an offer of proof showing the substance of
the evidence he sought to introduce, and the substance of this evidence was not
apparent from the context. Father did not preserve error in the trial court on his
second issue. See Tex. R. App. P. 33.1(a); City of Galveston, 57 S.W.3d at 540;
Gipson-Jelks, 468 S.W.3d at 606. Father’s second issue is overruled.

   D. Did the trial court abuse its discretion in designating Mother as the
      parent with the exclusive right to designate Daughter’s primary
      residence and in granting Mother unsupervised access to Daughter?
      In his third issue, Father asserts the trial court abused its discretion by
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designating Mother as the parent with the exclusive right to designate the
Daughter’s primary residence, in granting Mother other exclusive rights,4 and in
allowing Mother unsupervised access to Daughter. In particular, Father argues that
Daughter is not safe with Mother because the evidence shows the child was around
a registered sex offender, Mother struck Daughter in the mouth, and Mother drinks
excessive amounts of alcohol.

       In determining issues of conservatorship and possession and access, the
primary consideration is always the best interests of the child. See Fam. Code
Ann. § 153.002 (West, Westlaw through 2015 R.S.); Lenz v. Lenz, 79 S.W.3d 10,
14 (Tex. 2002). We review a trial court’s determination of conservatorship and
possession and access issues under an abuse-of-discretion standard. In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007); Allen v. Allen, 475 S.W.3d 453, 456 (Tex.
App.—Houston [14th Dist.] 2015, no pet.). A trial court abuses its discretion if it
acts arbitrarily, unreasonably, or without reference to any guiding rules of
principles. See Allen, 475 S.W.3d at 456. Under an abuse-of-discretion standard,
legal and factual insufficiency are not independent grounds of error, but rather are
relevant factors in assessing whether the trial court abused its discretion. Id.

       When a court appoints both parents as joint managing conservators, it must
designate one of them as the conservator who has the exclusive right to determine
the child’s primary residence. Tex. Fam. Code § 153.134(b)(1) (West, Westlaw
through 2015 R.S.). Texas public policy is to (1) assure that children will have


       4
          Father asserts in his issue statement that the trial court abused its discretion in granting
Mother “other exclusive rights.” Father does not elaborate on this statement in his briefing by
explaining which other rights he is challenging or why. Father has not provided any analysis or
citation to legal authority explaining this challenge. Even construing Father’s brief liberally, we
cannot conclude Father has adequately briefed this issue and therefore it is waived. See San
Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).

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frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child, (2) provide a safe, stable, and nonviolent environment
for the child, and (3) encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their relationship. Tex.
Fam. Code Ann. § 153.001(a) (West, Westlaw through 2015 R.S.); Allen, 475
S.W.3d at 457. A court may use the following non-exhaustive list of factors to
determine the child’s best interests: (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 programs available to assist these individuals
to promote the best interest of the child; (6) the plans for the child by the
individuals seeking custody; (7) the stability of the home; (8) the acts or omissions
of the parent that may indicate that the existing parent-child relationship is not
proper; and (9) any excuse for the acts or omissions of the parent. See Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); Cain v. Cain, No. 14-07-00114-CV,
2007 WL 4200638, at *3 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (mem.
op.).

        During the time period where the injunction was in place, Daughter stated to
Father that she had seen Mother’s brother and that they played a game of “princess
tag.” In interviews with Child Protective Services, the child initially stated she had
not seen Mother’s brother and then stated that she had seen him.             A Child
Protective Services worker testified at a hearing on temporary orders that Child
Protective Services had concerns about Mother’s family because the family did not
believe Mother’s brother was guilty of the aggravated-sexual-assault-of-a-child
offense of which he was convicted. At the same hearing, Child Protective Services
expressed concerns that the child witnessed fighting between Father and his wife.


                                          9
The record contained evidence that the police were called to respond to an incident
of domestic violence between Father and Father’s wife while Daughter was
present.

      The trial court issued temporary orders granting Father the exclusive right to
designate Daughter’s primary residence and awarded Mother possession of and
access to Daughter with the requirement that Daughter not be in the presence of
Mother’s parents or brother. The trial court ordered Daughter to undergo an
interview at the Child Advocacy Center to determine whether any abuse had
occurred. The trial court also provided specific orders for Daughter to continue
counseling with the private counselor that she already had been seeing. In her
interview with the Child Advocacy Center, Daughter denied having been around
Mother’s brother.    During this time, Father took Daughter to see a second
counselor, in addition to taking Daughter to her established counselor and the
Child Advocacy Center interview.

      At the next hearing, the trial court concluded Father’s actions in taking the
Daughter to a second counselor violated the trial court’s order that Mother had the
exclusive right to consent to psychological treatment.        The trial court also
concluded that this action was not in Daughter’s best interests because the parties
had agreed Daughter’s existing counselor was a neutral party who had established
a rapport with Daughter over a long period of time. The trial court expressed
concern that taking Daughter to multiple counselors could harm Daughter.

      Daughter’s counselor testified that the counselor addressed the issue of
Mother’s brother with Daughter and that the child said she had lied about having
contact with him because she felt shy and nervous. Daughter denied any contact
with Mother’s brother and could not describe him. Daughter stated that she knew
about Mother’s brother because Mother’s mother had talked about him.

                                        10
Daughter’s counselor testified that the child disclosed that Mother asked the child
not to discuss Mother’s brother. When asked about “princess tag,” Daughter stated
that she played “princess tag” with her grandfather. Daughter’s counselor testified
that she did think Mother had coached Daughter not to talk about Mother’s brother,
but the child’s counselor said she did not think Daughter had ever been around
Mother’s brother. Daughter’s counselor testified that granting Father the exclusive
right to designate Daughter’s primary residence could have a serious emotional
impact on the child because Daughter would be away from her routine, her school,
and Mother. Daughter’s counselor said that Daughter wanted to live with Mother
and was asking the counselor why she had to live with Father.

      A Child Protective Services representative stated Child Protective Services
did not have any concerns about returning Daughter to Mother as long as Mother’s
mother did not have unsupervised contact with the child and Mother continued
taking protective parenting classes. Mother admitted she slapped Daughter in the
mouth on one occasion while they were out in public and Daughter cursed. The
incident occurred over a year before trial. Child Protective Services was aware of
the incident but did not have any concerns at the time of trial about that conduct.

      The record also revealed that Father hired a private investigator to search
Mother’s trash. Mother’s trash contained wine bottles. Mother admitted that she
drinks one to two glasses of watered-down wine four nights per week.

      The trial court found that Daughter had been around Mother’s brother on
one occasion, but that after that occasion Mother successfully kept the child away
from all of her extended family members as requested by the trial court. Although
the trial court found Mother had allowed Daughter to be in Mother’s brother’s
presence once, the record revealed that Mother had taken protective parenting
classes since that time and the child’s counselor, as well as the representative from

                                         11
Child Protective Services testified that Mother was protecting the child. Neither
Daughter’s counselor nor the Child Protective Services representative had any
concerns about placing Daughter in Mother’s care or allowing Mother
unsupervised access to Daughter. While the record does contain evidence showing
that Mother did not always make the best parenting decisions, the record also
contains evidence that Father also made detrimental choices.        In addition to
engaging in domestic violence while Daughter was residing at his home, Father
was arrested for driving while intoxicated shortly after completing rehabilitation
for alcoholic addiction.   Even though the trial court found Mother exposed
Daughter to Mother’s brother on one occasion, the record evidence supports the
trial court’s determination that Mother could provide a safe and stable environment
for the child.   Accordingly, the record evidence necessarily supports the trial
court’s determination that Mother could have unsupervised access to Daughter.

      The record contains some evidence that Father was less willing to share in
the rights and duties of raising Daughter. First, after the trial court ordered the
child to continue in counseling with her established counselor and complete an
interview at the Child Advocacy Center, Father took Daughter to a new therapist
without consulting Mother, even though Mother had the exclusive right to consent
to psychological treatment at that time. Both parties acknowledged that seeing
fewer counselors was better for Daughter. Second, while Father had temporary
custody of the child, Father did not make all efforts possible to allow Daughter to
see Mother. The trial court indicated that Mother should have visitation during
Father’s temporary custody, but the trial court did not order a specific amount.
Arranging visitation was difficult because Mother and Father lived so far apart.
But, Father did not work with Mother to allow visitation, even on the occasions
Father had to make long drives to take the child to see a counselor located in the


                                        12
city where Mother resided. Finally, Father spent a significant amount of money
hiring a private investigator to go through Mother’s trash, even though Father was
behind on child support. See Ayala v. Ayala, 387 S.W.3d 721, 730–31 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (considering father’s history of failure to
pay child support in custody determination). In terms of providing the child with
consistency and stability, the record revealed that Mother had been involved in the
child’s life since birth and was consistently employed whereas Father had held
many jobs throughout the child’s life, had an unstable marriage, and had been
involved in the child’s life inconsistently.    Daughter’s counselor opined that
awarding Father the exclusive right to designate the child’s primary residence
would cause Daughter emotional harm because of the interruption to the child’s
routine. The child’s counselor also testified that Daughter wanted to live with
Mother.

      After reviewing the record, we conclude that the trial court did not abuse its
discretion in granting Mother the exclusive right to designate Daughter’s primary
residence or in allowing Mother unsupervised access to Daughter. See Allen, 475
S.W.3d at 456–58; Cain, 2007 WL 4200638, at *4.             Father’s third issue is
overruled.




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                                  CONCLUSION

      The trial court’s order is not void. Father did not preserve error on his
complaints that the trial court improperly excluded evidence. The trial court did
not abuse its discretion in granting Mother the exclusive right to designate
Daughter’s primary residence. We affirm the trial court’s order.



                                             /s/   Kem Thompson Frost
                                                   Chief Justice




Panel consists of Chief Justice Frost and Justices Christopher and Donovan.




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