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   Reversed and Remanded=20 and Opinion = filed October=20 25, 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-01271-CV

____________

 

TRUDIE LYNNE=20 BALTZER, = Appellant

 

V.

 

LARRY RUIZ=20 MEDINA, = Appellee

 

 

On Appeal from the = 310th District Court

Harris County, = Texas

Trial Court Cause = No. 95-24669

 

 

O P I N I=20 O N

A mother=20 appeals the trial court=3Ds order=20 modifying the primary conservatorship of her fifteen-year-old = son. =20 She also challenges the propriety of the trial court=3Ds orders=20 for possession and visitation, as well as its award of=20 attorney=3Ds=20 fees.  We reverse and remand.

I.  Factual and Procedural=20 Background

Appellant=20 Trudie Lynne Baltzer (hereinafter ALynne@) and=20 appellee Larry Medina (hereinafter ALarry@) were=20 divorced after eleven years of marriage.  Under the original = divorce=20 decree, Lynne and Larry were named joint managing conservators of = their=20 two children, and, as to the parties=3D = child=20 S.M., Lynne was given the following exclusive rights and=20 duties:

(1)    =20 the right to establish his primary residence, and

(2)    =20 the right to consent to medical, dental, and surgical treatment = involving=20 invasive procedures and to consent to psychiatric and = psychological=20 treatment.[1]  =20

Both Lynne=20 and Larry remarried.

After his=20 parents=3D = divorce=20 and following his mother=3Ds=20 re-marriage, S.M. lived with his mother, step-father, and = step-siblings in=20 Katy, Texas.  On February 28, 2005, S.M. went to visit a = friend in=20 the neighborhood.  During this visit, the Harris County=20 Constable=3Ds Office=20 was contacted because S.M. allegedly told his friend and his=20 friend=3Ds parents=20 that his Astep-dad=20 had been hitting him.@  The=20 constable contacted both Lynne and Larry, and told Larry that he = could=20 take possession of S.M., but that the child could not return = home. =20 Lynne stated that her husband had not hit S.M. on that = night.  She=20 explained that S.M. Awas a=20 little bit upset with us the night he left,@ = and she=20 felt as though S.M. were making the allegations so that he could = live with=20 his father, whom Lynne stated was more lenient.

Soon after=20 this incident, on March 4, 2005, Larry filed a petition to modify = the=20 parent-child relationship and requested that he be given the = following=20 exclusive rights:

(1)    =20 the right to establish the primary residence of S.M.; = and

(2)    =20 the right to make decisions concerning S.M.=3Ds education.[2] =20

Larry also=20 asked the court to limit Lynne to only supervised visitation with = the=20 child.  The trial court appointed an amicus attorney under = Chapter=20 107 of the Texas Family Code.  On August 2, 2005, the trial = court=20 issued a temporary order that both parties remain as joint = managing=20 conservators, but named Larry as the conservator with the = temporary=20 exclusive right to determine S.M.=3Ds primary=20 residence.  The trial court also gave Larry the temporary = exclusive=20 right to make educational decisions for the child.  =

About six=20 weeks later, the trial court conducted a bench trial. Lynne, who = appeared=20 pro se,  made several requests for a continuance.  No=20 continuances were granted.  Larry and Lynne testified.  = S.M. did=20 not testify, but the trial court admitted into evidence a document = signed=20 by S.M., in which S.M. states he prefers that Larry have the = exclusive=20 right to determine S.M.=3Ds primary=20 residence.[3] =20 The trial court signed a final order finding that Athe=20 material allegations in the petition to modify are true and a = material and=20 substantial change has occurred since the last order and the = requested=20 modification is in the best interest of the child.@  The=20 court then signed an order (1) removing Lynne as joint managing=20 conservator of S.M., (2) appointing Larry as sole managing = conservator of=20 S.M., and (3) appointing Lynne as possessory conservator of = S.M. =20 Under the trial court=3Ds order,=20 Larry now has the exclusive right to (1) designate the primary = residence=20 of S.M., (2) consent to medical, dental, and surgical treatment = involving=20 invasive procedures and to consent to psychiatric and = psychological=20 treatment of S.M., and (3) make decisions concerning = S.M.=3Ds=20 education.  The trial court also found that credible evidence = had=20 been presented that Lynne had Aa history=20 or pattern of physical abuse and/or neglect directed against=20 S.M.@  The=20 trial court therefore ordered that all visitation between Lynne = and S.M.=20 is to be supervised under the Harris County ASAFE=20 Program.@  =20

The trial=20 court assessed, as Achild=20 support,@ = $12,322.28 in attorney=3Ds fees in=20 favor of Larry and against Lynne.  Additionally, the trial = court=20 assessed as Achild=20 support@ =20 $7,143.75 in attorney=3Ds fees in=20 favor of the amicus attorney and against Larry.  However, the = trial=20 court simultaneously ordered Lynne to reimburse Larry for the = amount of=20 $7,143.75 in attorney=3Ds fees=20 paid to the amicus attorney.  Finally, Lynne was ordered to = pay=20 retroactive child support to Larry in the amount of = $1,200.  =20

II.  Issues and=20 Analysis

A.     =20 Did the trial court reversibly err by failing to file findings of = fact and=20 conclusions of law?

In her=20 first issue, Lynne contends the trial court reversibly erred by = failing to=20 file findings of fact and conclusions of law.  Lynne claims = she=20 cannot determine the trial court=3Ds reasons=20 for its rulings in the final order.

Lynne=20 timely requested findings of fact and conclusions of law after the = trial=20 court signed its order modifying the parent-child relationship and = awarding attorney=3Ds fees as=20 child support.  See Tex. R. Civ. P. = 296.  The=20 trial court failed to make findings or conclusions within the = allotted=20 time, and Lynne timely filed a notice of past-due findings of fact = and=20 conclusions of law.  No findings or conclusions were ever = made.=20

A trial=20 court must file written findings of fact and conclusions of law = when=20 timely requested by a party.  See Tex. R. Civ. P. =  296, 297;=20 Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. = 1989). =20 The trial court=3Ds failure=20 to respond to a timely request constitutes error and is presumed = harmful=20 unless the record affirmatively shows that the complaining party = has=20 suffered no harm.  Id.  An appellant is harmed if = there=20 are two or more possible grounds on which the court could have = ruled and=20 the appellant is left to guess the basis of the trial = court=3Ds=20 ruling.  Goggins v. Leo, 849 S.W.2d 373, 379 (Tex.=20 App.CHouston=20 [14th Dist.] 1993, no writ).  The proper remedy in that = situation is=20 to abate the appeal and direct the trial court to correct its = error. =20 Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.CHouston=20 [14th Dist.] 1996, no pet.).  Lynne contends that she was = harmed by=20 the trial court=3Ds failure=20 to make findings and conclusions because she has to guess as to = why: (1)=20 she was removed as joint managing conservator and named only as a=20 possessory conservator of S.M.; (2) certain parental rights (such = as=20 healthcare and educational decision making authority) were granted = exclusively to Larry; and (3) the trial court assessed all of the=20 attorney=3Ds fees=20 against Lynne and awarded them as Ain the=20 nature of child support.@ =

Although=20 the trial court did not set forth findings in a separate document, = the=20 trial court erroneously included findings in its order modifying = the=20 parentBchild=20 relationship.  These findings have probative value as long as = they do=20 not conflict with those in a separate document.  See In re = U.P.,=20 105 S.W.3d 222, 229, n.3 (Tex. App.CHouston=20 [14th Dist.] 2003, pet. denied).   In its final order, = signed on=20 September 27, 2005, the trial court found that Athe=20 material allegations in the petition to modify are true and a = material and=20 substantial change has occurred since the last order and the = requested=20 modification is in the best interest of the child.@  =20 In addition, the trial court=3Ds order=20 clearly reflects that it considered the fact that S.M. (a child = over=20 twelve years)  prefers that Larry have the exclusive right to = determine S.M.=3Ds primary=20 residence.  The trial court had the authority to modify the=20 conservatorship rights of S.M. upon a showing that it was in=20 S.M.=3Ds best=20 interest and that he had filed with the court, in writing, the = name of the=20 person whom he preferred to have authority to determine his = primary=20 residence.  See Tex.=20 Fam. Code Ann. ' = 156.101(2) (Vernon Supp. 2006).  Because there are no = findings in a=20 separate document that conflict with the findings set out in the = trial=20 court=3Ds order,=20 these findings will not be denied probative value.  See = U.P.,=20 105 S.W.3d at 229, n.3.  Thus, the trial = court=3Ds failure=20 to enter findings of fact or conclusions of law did not leave = Lynne to=20 guess the basis for the trial court=3Ds ruling=20 and did not prevent her from making a proper presentation of her = case to=20 this court.  See Tenery v. Tenery, 932 S.W.2d 29, 30 = (Tex.=20 1996) (finding trial court=3Ds failure=20 to issue findings and conclusions to be harmless as it related to = the=20 division of property because there was ample evidence in the = record to=20 support the judgment).  Therefore, we conclude that the trial = court=3Ds error in=20 failing to file findings of fact and conclusions of law is = harmless. =20 We overrule Lynne=3Ds first=20 issue.

B.     =20 Did the trial court abuse its discretion in limiting the=20 mother=3Ds periods of = possession to=20 less than that provided in a standard possession order, and in = ordering=20 that her periods of possession be supervised?

In her=20 second issue, Lynne contends the trial court abused its discretion = by=20 ordering that her periods of possession of S.M. be = supervised.  In=20 her third issue, Lynne contends the trial court abused its = discretion in=20 limiting these periods to less than those provided in a standard=20 possession order.  Because Lynne=3Ds argument=20 under both issues is essentially that the trial court abused its=20 discretion in deviating from the standard possession order[4]=20 by ordering supervised visitation, we address these two issues = together.=20

Lynne=20 contends the trial court abused its discretion because the = evidence is=20 insufficient to support the trial court=3Ds finding=20 that she Ahas a=20 history or pattern of physical abuse and/or neglect directed = against=20 S.M.@  We=20 evaluate a trial court=3Ds decision=20 to modify an order for conservatorship or possession of a child = under an=20 abuse-of-discretion standard.  See Roosth v. Roosth, = 889=20 S.W.2d 445, 451 (Tex. App.CHouston=20 [14th Dist.] 1994, writ denied).  Generally, the test = for abuse=20 of discretion is whether the trial court acted without reference = to any=20 guiding rules and principles or whether the trial court acted = arbitrarily=20 and unreasonably.  See McDaniel v. Yarbrough, 898 = S.W.2d 251,=20 253 (Tex. 1995).  Under an=20 abuse-of-discretion standard, legal and factual insufficiency are = not=20 independent grounds of error, but rather are relevant factors in = assessing=20 whether the trial court abused its discretion.  In re = T.J.L.,=20 97 S.W.3d 257, 266 (Tex. = App.CHouston [14th=20 Dist.] = 2002, no=20 pet.).  There is no abuse of discretion as long as some = evidence of a=20 substantive and probative character exists to support the trial=20 court=3Ds=20 decision.  Id.

We now=20 consider whether the evidence is sufficient to support the trial=20 court=3Ds finding=20 that Lynne has Aa history=20 or pattern of physical abuse and/or neglect directed against=20 [S.M.]@  At=20 the modification hearing, Larry was the only witness who testified = as to=20 any alleged danger he believed his son would be in should he = remain with=20 Lynne.  Larry testified that S.M. would be in danger without=20 supervised visitation, and that S.M. Aexpressed=20 a fear of his step-dad@ = and that=20 his step-dad Ahad been=20 hitting him.@ =20 Larry also introduced a copy of an incident report from the Harris = County=20 Constable=3Ds=20 office.  This report states that deputies responded to an = information=20 call regarding injury to a child by bodily force on February 28, = 2005, and=20 that the deputies completed a report.  This document, = however, does=20 not include a copy of the deputies=3D = report=20 and does not identify the parties or the child that allegedly was=20 injured.

The record=20 is utterly devoid of evidence that Lynne ever abused or neglected = S.M. or=20 that she allowed him to be abused or neglected while in her=20 presence.  Though the record contains some evidence that S.M. = expressed a fear of Lynne=3Ds husband,=20 the record contains no evidence that would suggest that Lynne = witnessed=20 her husband (Juan Guerra) strike S.M. on the evening S.M. ran to a = neighbor=3Ds home, or=20 on any other occasion.  Lynne testified that she and her = husband=20 Ado not=20 believe in spanking@ = and have=20 never spanked any of her children. Lynne stated that S.M. did have = two=20 bruises on his arm but that they were old bruises and that S.M. = told her=20 that Ahe got=20 them from his bed.@ =20 Lynne further testified that S.M. never told her that his = step-father had=20 hit or abused him.  Though the trial court was free to = disbelieve=20 Lynne=3Ds=20 testimony, there is nothing in the record that suggests even a = single=20 incident of abuse or neglect by Lynne.  Reviewing the = evidence in the=20 light most favorable to the challenged finding, indulging every = reasonable=20 inference that would support it, crediting favorable evidence if a = reasonable factfinder could, and disregarding contrary evidence = unless a=20 reasonable factfinder could not, we conclude the evidence at trial = would=20 not enable reasonable and fair‑minded people to find that = Lynne exhibited=20 a history or a pattern of abuse or neglect toward S.M.  = See City=20 of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. = 2005). =20 Therefore, the evidence presented at trial is legally insufficient = to=20 support the trial court=3Ds finding=20 that Lynne had exhibited a history or a pattern of abuse or = neglect toward=20 S.M.  Moreover, there is no evidence in the record of any = other basis=20 upon which the trial court could have exercised its discretion to = order=20 that Lynne=3Ds=20 visitation be under the supervision of the Harris County = ASAFE=20 Program.@  On=20 this record, the trial court abused its discretion in deviating = from the=20 guidelines of a standard possession order and in ordering that=20 Lynne=3Ds periods=20 of visitation with S.M. must be supervised.  See Roosth, = 889=20 S.W.2d at 450B52. =20 (holding trial court abused its discretion in limiting = parent=3Ds=20 visitation periods with child).  Accordingly, we sustain=20 Lynne=3Ds second=20 and third issues.

C.     =20 Did the trial court abuse its discretion in designating the father = sole=20 managing conservator when the father did not request such=20 relief?

In her=20 fourth issue, Lynne contends the trial court abused its discretion = in=20 modifying the joint managing conservatorship and in naming Larry = the sole=20 managing conservator because Larry never requested this = relief.  The=20 Texas Rules of Civil Procedure applicable to the filing of an = original=20 lawsuit apply to Larry=3Ds petition=20 to modify.  See Tex.=20 Fam. Code Ann. ' = 156.004=20 (Vernon 2002).  Therefore, the trial court=3Ds judgment=20 must conform to the pleadings; however, if issues not raised by = the=20 pleadings are tried by express or implied consent of the parties, = these=20 issues shall be treated as if they had been raised by the = pleadings.[5] =20 See Tex. R. Civ. = P.=20 67, 301; Halla v. Halla, No. 14B06-01126-CV,=20 2007 WL 2367600, at *2 (Tex. App.CHouston=20 [14th Dist.] Aug. 21, 2007, no pet. h.). 

Although=20 Larry requested certain exclusive rights in his petition to = modify, the=20 trial court was free to grant Larry these exclusive rights while, = at the=20 same time, ordering Larry and Lynne to remain as joint managing=20 conservators.  Larry did not seek to be appointed sole = managing=20 conservator in his petition.  During direct examination at = trial,=20 Larry testified that he wanted certain exclusive rights, without = referring=20 to the right to be sole managing conservator.  Larry then = stated that=20 he wanted all other rights to be shared.  Larry never = requested the=20 trial court to appoint him as sole managing conservator.  To = the=20 contrary, through this testimony, Larry expressly requested that = the=20 conservatorship be shared.  Thus, the issue of sole managing=20 conservatorship was not tried by consent of the parties.  = Therefore,=20 the trial court erred in granting Larry relief that he did not = request in=20 his petition.  See Binder v. Joe, 193 S.W.3d 29,=20 32B33 (Tex.=20 App.CHouston=20 [1st Dist.] 2006, no pet.) (holding that trial court erred in = naming party=20 as sole managing conservator because party did not seek this = relief in his=20 pleading in restricted appeal from default judgment, which is also = required to conform to the pleadings).  We conclude the trial = court=20 erred in naming Larry as sole managing conservator and in not = continuing=20 the conservatorship with Larry and Lynne serving as joint managing = conservators.  Accordingly, we sustain Lynne=3Ds fourth=20 issue.

D.     =20 Did the trial court abuse its discretion in granting the father = the=20 exclusive rights to make certain medical and educational decisions = for the=20 child?

In her=20 fifth issue, Lynne contends that the trial court abused its = discretion in=20 granting Larry the exclusive rights to (1) consent to medical, = dental, and=20 surgical treatment involving invasive procedures as well as = psychiatric=20 and psychological treatment of S.M., and (2) make decisions = concerning=20 S.M.=3Ds=20 education.  Lynne asserts that the evidence is legally and = factually=20 insufficient to support this relief.[6]=20

 First=20 of all, we note that Lynne has not challenged on appeal the trial=20 court=3Ds granting=20 to Larry of the exclusive right to designate the primary residence = of=20 S.M.[7] =20 In addition, the record shows evidence at trial of the=20 following:

!      =20 Lynne lives in Katy, and Larry lives in Clear Lake.

!      =20 When S.M. started living with Larry, he was enrolled in Katy = Independent=20 School District (AKaty = I.S.D.@).  Every = school day for=20 the last few months of school, Larry drove S.M. back and forth = from Clear=20 Lake to his school in Katy.

!      =20 S.M.=3Ds grades improved = after he=20 started living with Larry.

!      =20 S.M. has expressed a desire to live with Larry.

!      =20 At the time of trial, S.M. was attending Clear Lake High = School.  He=20 likes that school and wants to continue going to that = school.

!      =20 In the six months prior to trial, Lynne had visited S.M. only one=20 time.

!      =20 Lynne refused to give Larry S.M.=3Ds personal = belongings after=20 S.M. started living with Larry.  Therefore, Larry had to buy = S.M. all=20 new clothes. 

!      =20 Even though Lynne had some of S.M.=3Ds=20 textbooks for Katy I.S.D., she refused to give them to her son = after he=20 started living with Larry.

The record=20 contains evidence demonstrating Larry=3Ds=20 commitment to S.M.=3Ds=20 well-being and education and Lynne=3Ds=20 indifference or non-responsiveness to some of S.M.=3Ds needs in=20 these areas.  The trial evidence is legally and factually = sufficient=20 to support the trial court=3Ds=20 determination that it is in S.M.=3Ds best=20 interest that Larry have the exclusive right to make decisions = concerning=20 S.M.=3Ds=20 education, as well as the exclusive right to consent to medical, = dental,=20 and surgical treatment involving invasive procedures and to = consent to=20 psychiatric and psychological treatment of S.M.  The trial = court did=20 not abuse its discretion in granting Larry these exclusive=20 rights.  See In re Z.B.P., 109 S.W.3d 772, = 779B80 (Tex.=20 App.CFort Worth=20 2003, no pet.) (concluding that the record supported trial=20 court=3Ds finding=20 that naming the father as the joint managing conservator with the=20 exclusive right to determine children=3Ds=20 residence, health care, and education was in the = children=3Ds best=20 interests); London v. London, 94 S.W.3d 139, 150 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.) (holding that the evidence supported = trial=20 court=3Ds award to=20 father of exclusive right to make education decisions for the=20 children).  Accordingly, we overrule Lynne=3Ds fifth=20 issue.

E.     =20 Should this court reverse the attorney=3Ds fees=20 awards?

In issues=20 six through eight, Lynne asserts various challenges against the = trial=20 court=3Ds award of=20 attorney=3Ds fees,=20 its assessment of attorney=3Ds fees and=20 costs as Ain the=20 nature of child support,@ = and its=20 award to Larry of reimbursement of attorney=3Ds fees=20 that Larry had paid to the amicus attorney.  Prior to the = trial=20 court=3Ds=20 modification order, Lynne was a joint managing conservator with = exclusive=20 rights to determine residence and to consent to invasive medical, = dental,=20 and surgical treatment.  In the modification order, the trial = court=20 (1) removed Lynne as joint managing conservator of S.M., (2) = appointed=20 Larry as sole managing conservator of S.M., and (3) appointed = Lynne as=20 possessory conservator of S.M., whose visitation with S.M. is less = than=20 that provided in a standard possession order and must be = supervised. =20 Under the trial court=3Ds order,=20 Larry has the exclusive right to (1) designate the primary = residence of=20 S.M., (2) consent to medical, dental, and surgical treatment = involving=20 invasive procedures and to consent to psychiatric and = psychological=20 treatment of S.M., and (3) make decisions concerning = S.M.=3Ds=20 education.  On appeal, we have held that (1) the trial court = should=20 have left Lynne and Larry as joint managing conservators, and (2) = the=20 trial court erred by limiting Lynne=3Ds periods=20 of possession to less than that provided in a standard possession = order=20 and by ordering that her periods of possession be = supervised. =20 Because this court is not reasonably certain that the trial=20 court=3Ds=20 attorney=3Ds fees=20 determination was not significantly affected by its errors = regarding=20 conservatorship, periods of possession, and supervision, we = reverse all=20 attorney=3Ds fees=20 awards and remand these issues to the trial court for = reconsideration=20 based on the outcome following this appeal.  See Young v.=20 Qualls, 223 S.W.3d 312, 314B15=20 (Tex.  2007) (per curiam).

           = ;            =             &= nbsp;           &n= bsp;=20 III.  Conclusion

The trial=20 court did not reversibly err in failing to file findings of fact = and=20 conclusions of law or in granting Larry the exclusive right to = make=20 decisions concerning S.M.=3Ds=20 education, as well as the exclusive right to consent to medical, = dental,=20 and surgical treatment involving invasive procedures and to = consent to=20 psychiatric and psychological treatment of S.M.  The trial = court,=20 however, abused its discretion by (1) limiting Lynne=3Ds periods=20 of possession to less than that provided in a standard possession = order,=20 (2) ordering that her periods of possession be supervised, and (3) = designating Larry as sole managing conservator rather than = continuing=20 Larry and Lynne as joint managing conservators.  Given these = errors,=20 we reverse all attorney=3Ds fees=20 awards and remand these issues to the trial court for=20 reconsideration.  Accordingly, the trial court=3Ds order is=20 reversed and remanded  for rendition of a modification order = in=20 accordance with this opinion, for reconsideration of the=20 attorney=3Ds fees=20 awards, and for any further proceedings that may be = necessary.

 

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

 

Judgment rendered = and Opinion=20 filed October 25, 2007.

Panel=20 consists of Justices Frost, Seymore, and Sears.* =


[1]  In the divorce decree, the trial = court also=20 gave Lynne other exclusive rights and made various determinations=20 regarding K.M., the other child of the marriage.  However, = these=20 provisions of the divorce decree are not relevant to this=20 appeal.

[2]  Larry also requested other = exclusive=20 rights.  However, these requests are not relevant to this=20 appeal.

[3]  The record indicates that the = trial court=20 conferred with S.M. in chambers some time before the bench = trial.  At=20 the beginning of trial, Larry=3Ds counsel suggested that the trial court = again=20 confer with S.M. in chambers.  The trial court stated it = would=20 consider doing so if it deemed it appropriate after hearing the = testimony=20 at trial.  The record does not reflect that the trial court = conferred=20 with S.M. in chambers at any time during the bench = trial.

[4]  In its order, the = trial court=20 deviated from the standard possession order by ordering that=20 Lynne=3Ds visitation be = under the=20 supervision of the Harris County ASAFE = Program@ on the second and = fourth=20 Saturday of each month at the times prescribed by the ASAFE = Program@ at the SAFE = location nearest=20 the child=3Ds residence.  = The trial=20 court stated that it did so based on its finding that credible = evidence=20 had been presented that Lynne has a history or pattern of physical = abuse=20 and/or neglect directed against S.M. 

 

[5]  In Leithold v. Plass, the = Texas=20 Supreme Court held that the petitioner=3Ds pleadings for modification were=20 sufficient.  See 413 S.W.2d 698, 701 (Tex. = 1967).  This=20 case predated the enactment of the Texas Family Code, and it is = not clear=20 what issue was presented regarding the petitioner=3Ds pleading.  See id.  = It appears=20 that respondent argued that petitioner=3Ds pleading was insufficient to request a = modification of visitation rights because petitioner requested = that he be=20 given Acustody and control@ of his son rather than Avisitation.@  See id.  The Texas = Supreme=20 Court held that petitioner=3Ds pleading was sufficient.  See=20 id.  In this case the high court did not hold that the = civil=20 procedure rules regarding pleadings and judgments do not apply to = cases=20 involving custody of minor children.  See id.  = Even if it=20 had so held, the enactment of section 156.004 of the Texas Family = Code=20 would supersede this holding.  See Tex. Fam. Code Ann. = ' 156.004 (Vernon = 2002).    =20

[6]  Lynne also asserts that the trial = court=20 erred in awarding this relief in its order because it did not = mention this=20 relief in its oral rendition in open court following trial.  = However,=20 the trial court signed its order within thirty days after the oral = rendition, and, therefore, it had plenary power to modify its = earlier=20 rendition. Such a modification is not erroneous merely because the = subsequent order does not mirror the earlier rendition.  = See=20 Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex. = App.CDallas 2006, no pet.).  =

[7]  Even if Lynne had challenged this = ruling,=20 we would conclude the trial court did not abuse its discretion in = this=20 regard based on S.M.=3Ds preference that Larry have the = exclusive right=20 to determine S.M.=3Ds primary residence and based on = Larry=3Ds testimony at trial.

*  Senior Justice Ross A. Sears = sitting by=20 = assignment.

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