Modification Backfire: Opinions, June 22, 2017

The Fourteenth Court of Appeals released its memorandum opinion in Koenig v. Koenig, No. 14-16-00319-CV, affirming the modification entered by the trial court. The case serves as a cautionary tale about filing a modification when the tables may be turned on the first parent to file.

Mother and Father were divorced in 2013 and both were appointed JMCs, with Father as primary. Subsequently, Father filed a mod requesting Mother’s access be denied or supervised. Mother filed a cross-mod, asking that the Father be denied access to the children and that she be appointed SMC. Father nonsuited his mod and the case went to trial on Mother’s claims.

During a trial to the bench, the court heard testimony from a psychologist and an investigator appointed to conduct a social study. In its final order, the court ordered the parties remain JMCs, but that Father have a step up to an SPO. In other words, even though the father had been the first to file a mod asking the mother’s access be denied or strictly limited, he was the one who wound up with curtailed visitation. Father appealed.

In his first issue, Father alleged legally insufficient evidence and that the trial court erred in relying on the psychologist’s expert testimony. In his second issue, he alleged he received ineffective assistance of counsel during trial. In his third issue, Father contended his due process rights were violated with respect to notice of a hearing on temporary orders.

Taking the last first, the Court of Appeals overruled the third issue because the COA lacks jurisdiction to consider challenges to temporary orders because mandamus is the appropriate vehicle to attack a TO.

Father’s first issue is really two separate inquiries: the psychologist’s expert qualifications and the sufficiency of the evidence. Addressing the expert’s qualifications first, the COA found that the expert has a doctorate in developmental psychology, has a clinical practice in which she works with children and families, and that a large part of her practice includes performing psychological and custody evaluations for courts. Not surprisingly, the COA overruled the father’s objections to her qualifications.

The COA also found that there was some evidence of a substantive and probative character to support the judgment. Specifically, there was evidence of the father’s attempt to alienate the children, including evidence that the father did not notify the mother of the children’s activities and events, the children called her by her first name, the children were demeaning to her after the divorce, the children’s school apparently believed the father was an SMC, etc. The psychologist recommended the father complete counseling for parental alienation. The COA overruled the father’s legal sufficiency challenge.

The father’s third issue was overruled because ineffective assistance of counsel challenges are generally limited to criminal cases.


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