In the Interest of A.J.L. and V.C.L. Childern

This is an appeal from the grant of a no-evidence summary judgment motion

in a suit to modify the parent-child relationship. The appellant contends that the noevidence

motion is legally defective and that she presented evidence raising a

genuine issue of material fact on the challenged elements of material and substantial

change in circumstances and best interest of the child. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father, the parents of two children, were divorced in 2010. The

parties signed a mediated settlement agreement (MSA) on June 27, 2013, which

made them joint managing conservators of the children and did not require either

parent to pay child support. The trial court incorporated the terms of the MSA in an

order modifying the parent-child relationship rendered on July 12, 2013 (the 2013

Order). In August 2014, Mother sued Father to modify the 2013 Order. In response,

Father filed a counter-petition for modification.

In her live pleading, Mother requested that she be appointed sole managing

conservator; alternatively, Mother requested that she be appointed the person having

the right to designate the primary residence of the children, as well as the exclusive

right to consent to certain medical procedures and care, to make educational

decisions, and to receive and disburse child support. Mother also sought to modify

Father’s access and possession to provide for a standard possession order, and

requested that Father be ordered to pay child support. Further, Mother requested that

Father be ordered to submit to random alcohol testing and that Father be permanently

enjoined from consuming alcohol during periods of access and possession of the

children.1

In 2016, Father filed a hybrid no-evidence and traditional motion for summary

judgment and Mother filed a response. After a hearing, the trial court granted

Father’s motion for no-evidence summary judgment and dismissed Mother’s

modification action by order signed September 20, 2016. The trial court’s order

specifically granted only the no-evidence summary judgment motion and did not

1 The 2013 Order included a provision permanently or enjoining both Mother and Father

from consuming alcohol during any period of possession or access to the children. This and other

specified conduct was ordered enjoined “because of the conduct of the parties.”

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mention Father’s traditional summary judgment motion. Two days later, Father

nonsuited his counter-petition. On September 27, 2016, the trial court signed an

order granting the nonsuit, making the trial court’s order granting Father’s motion

for no-evidence summary judgment final and appealable.

ISSUES AND ANALYSIS

On appeal, Mother first contends that the trial court erred in granting Father’s

no-evidence summary judgment motion because the motion is legally defective.

Mother also contends that she presented evidence raising a genuine issue of material

fact that there was a material and substantial change in the circumstances of Father

and the children, and that her proposed changes were in the best interest of the

children.2 We address each in turn.

I. The No-Evidence Summary Judgment Motion is Legally Sufficient

In her first issue, Mother contends that Father’s no-evidence summary

judgment motion is legally defective because it does not strictly comply with Rule

166a(i) of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 166a(i). Rule

166a(i) requires that a no-evidence motion specifically state the element or elements

for which there is no evidence. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310

(Tex. 2009) (citing Tex. R. Civ. P. 166a(i)). The motion must be specific in

challenging the evidentiary support for an element of a claim or defense; conclusory

motions or general no-evidence challenges to an opponent’s case are not authorized.

2 Mother also contends that, to the extent this court considers the trial court’s order as

granting Father’s traditional summary judgment motion, the trial court erred because the traditional

motion is legally defective, genuine issues of material fact exist as to whether there was a material

and substantial change in the status of Father and the children, and res judicata does not apply.

Because the trial court expressly granted the no-evidence summary judgment motion only, we

decline to consider Mother’s alternative arguments. See Morris v. Deutsche Bank Nat’l Trust Co.,

___ S.W.3d ___, 2017 WL 3045789, at *5 (Tex. App.—Houston [14th Dist.] July 18, 2017, no

pet.) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)).

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Id. The underlying purpose of the requirement is to provide the opposing party with

adequate information for opposing the motion, and to define the issues for the

purpose of summary judgment. Id. at 311.

Mother argues that Father’s no-evidence motion is defective in four different

and independently fatal ways. Specifically, Mother maintains that the motion: (1)

cites to a nonexistent section of the Family Code; (2) references an incorrect time

period in which Mother was required to show a material and substantial change in

circumstances; (3) fails to identify which of the specific “requested changes” Mother

requested as being in the child’s best interest were challenged; and (4) fails to specify

which child is the subject of the motion.

A trial court with continuing, exclusive jurisdiction may modify an order

regarding conservatorship or the possession of and access to a child. Tex. Fam. Code

§ 156.001. A court may modify such an order if the evidence shows: (1) a material

and substantial change in the circumstances of the child, a conservator, or other party

affected by the order; and (2) that the change would be in the child’s best interest.

See id. § 156.101(a)(1). And, if the parties have agreed to an order under which the

amount of child support differs from the amount that would be awarded in

accordance with the child support guidelines, the court may modify the order “if the

circumstances of the child or a person affected by the order have materially and

substantially changed since the date of the order’s rendition.” See id. § 156.401(a-

1).

Mother cites the following paragraph of the no-evidence motion to support

her complaints that the motion is legally insufficient:

After adequate time for discovery, [Mother] has absolutely no

evidence raising a genuine issue of material fact that there has been a

material or substantial change of circumstances as contemplated by

Texas Family Code sections 156.101(1) and 156.401(a-1) since this

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court’s rendition of the 2013 Order. Without proving these elements by

a preponderance of the evidence, her claims for modification must fail.

As such, this Court should grant summary judgment and finally dispose

of all claims by [Mother].

Mother’s first complaint is that because Father omits the “(a)” in section

156.101(a)(1), his citation to a “non-existent” section of the Family Code fails to

comply with Rule 166a(i)’s strict requirement to specify the elements as to which he

alleges there is no evidence. In context, however, the basis of Father’s no-evidence

motion is clear. Father’s motion begins with an introductory section in which the

relevant text of sections 156.101 and 156.401 are set out in full, including all of

sections 156.101(a)(1) and 156.401(a-1). The next section is clearly identified as the

no-evidence portion of the motion and sets out the challenged elements in separate

paragraphs. The paragraph challenging the element of a material and substantial

change in circumstances, cited above, expressly incorporates the applicable statutory

language. Mother cites no case in which a court has held that an obvious

typographical error in a no-evidence motion that otherwise adequately informs the

nonmovant of the challenged elements renders the motion legally insufficient, and

we are aware of none. We therefore reject Mother’s first complaint.

Next, Mother complains that the no-evidence motion is legally insufficient

because Father references an incorrect time frame. In the motion, Father asserts that

Mother has no evidence of a material and substantial change since the trial court’s

rendition of the 2013 Order. Mother argues that because the 2013 Order was based

on a mediated settlement agreement, section 156.101(a)(1) and section 156.401(a-

1) require evidence of a material and substantial change “since the earlier of . . . the

date of the rendition of the order . . . or the date of the signing of a

mediated . . . settlement agreement on which the order is based.” See Tex. Fam.

Code § 156.101(a)(1) (emphasis added); see also id. § 156.401(a)(1). Because

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Father moved for summary judgment based on the lack of evidence of a material or

substantial change since rendition of the 2013 Order—instead of the date of the MSA

that formed the basis of the 2013 Order—Mother argues that Father failed to move

for no-evidence summary judgment on “one or more essential elements of a claim

or defense on which an adverse party would have the burden of proof at trial.” See

Tex. R. Civ. P. 166a(i).

As an initial matter, Mother’s complaint as to Father’s challenge to Mother’s

request for modification of support is misplaced, because Father challenged

Mother’s evidence under section 156.401(a-1), which does not contain the same

language as section 156.401(a). See Tex. Fam. Code § 156.401(a-1) (providing that

court may modify support order “only if the circumstances of the child or a person

affected by the order have materially and substantially changed since the date of the

order’s rendition” (emphasis added)). As to Mother’s section 156.101 complaint,

we conclude that although the challenged element should have more accurately

reflected the statute, we decline to hold that Father’s no-evidence motion was legally

insufficient on this ground. We again note that Father set out the full text of section

156.101(a)(1) and incorporated the text into the challenged element by asserting that

Mother had no evidence of a material or substantial change of circumstances “as

contemplated by Texas Family Code section[] 156.101(1)” since the date of the 2013

Order.

Finally, Mother complains that Father does not identify which of Mother’s

requested modifications pertaining to the best interest of the child were being

challenged and does not identify which of the two children are the subject of the

challenge. But, specific factual theories or allegations within a claim are not

elements of the claim and are not required to be asserted. See Jose Fuentes Co., Inc.

v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. denied) (“A no7

evidence motion for summary judgment may be directed at specific factual theories

or allegations within a claim or defense only if the challenge to the factual allegation

is connected to a no-evidence challenge to a specified element of a claim or

defense.”) (emphasis in original).

Relevant here, the grounds for modification of an order establishing

conservatorship or possession and access require the petitioner to show that: (1)

modification would be in the best interest of the child; and (2) the circumstances of

the child, a conservator, or other party affected by the order have materially and

substantially changed since the date the MSA was signed or the date the modification

order was rendered. See Tex. Fam. Code §§ 156.101(a)(1), 156.401(a-1). Father

specifically challenged both elements; that is all he was required to do. We overrule

Mother’s first issue.

II. The Trial Court Did Not Err in Granting Father’s No-Evidence

Summary Judgment Motion

In her second issue, Mother contends that the trial court erred in granting

Father’s no-evidence summary judgment motion because the record evidence raises

a genuine issue of material fact as to whether there was a material and substantial

change in the status of Father and the children since the signing of the MSA on which

the 2013 Order is based, and whether the proposed changes were in the best interest

of the children. Father argues that Mother has failed to present evidence sufficient

to show a material change in circumstances or that the modification would be in the

best interests of the children.

Under Rule 166a(i) of the Texas Rules of Civil Procedure, a party may move

for a no-evidence summary judgment on the ground that there is no evidence of one

or more essential elements of a claim or defense on which an adverse party would

have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Sudan v. Sudan, 199 S.W.3d

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291, 292 (Tex. 2006) (per curiam). To defeat a no-evidence motion, the nonmovant

must produce evidence raising a genuine issue of material fact as to the challenged

elements. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214,

220 (Tex. 2017). The nonmovant is “not required to marshal its proof; its response

need only point out evidence that raises a fact issue on the challenged elements.”

Tex. R. Civ. P. 166a(i) cmt—1997. A genuine issue of material fact exists if the

evidence rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions. Parker, 514 S.W.3d at 220.

In response to Father’s no-evidence motion, Mother filed a response to

Father’s summary judgment motion with the following attached exhibits, totaling

114 pages: Father’s first amended counter-petition, Mothers’ supplemental

interrogatory answers, Father’s responses to Mother’s disclosure request, two

affidavits of Mother’s attorney, and Mother’s affidavit with five attached exhibits.

After reciting the law generally applicable to no-evidence summary judgment

motions, the entirety of Mother’s substantive response to Father’s no-evidence

summary judgment was one paragraph:

Petitioner claims a genuine issue of material fact exists as to whether a

material and substantial change in circumstances has occurred and

submits affidavits, discovery, documentary evidence and Petitioner’s

pleadings, as summary judgment evidence, referenced in an appendix

attached hereto, filed with this response and incorporated by such

reference for all purposes as if recited verbatim herein.

Mother did not cite, quote, or otherwise point out to the trial court the evidence she

relied on to create a fact issue on the challenged elements, in any portion of her

response. Nor did she make any argument or cite to any legal authority in support of

her position.

When a nonmovant presents summary judgment evidence in response to a no9

evidence motion, that party must specifically identify the supporting proof it seeks

to have considered by the trial court. Moon Sun Kang v. Derrick, Nos. 14-13-00086-

CV, 14-13-0088-CV, 2014 WL 2048424, at *7 (Tex. App.—Houston [14th Dist.]

May 15, 2014, pet. denied) (mem. op.); Burns v. Canales, No. 14-04-00786-CV,

2006 WL 461518, at *4 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet.

denied) (mem. op.). Further, general citation to voluminous records is not a proper

response to a no-evidence motion for summary judgment. Moon Sun Kang, 2014

WL 2048424, at *7; Burns, 2006 WL 461518, at *4. Nor is the trial court required

to search the record for evidence raising a material fact issue without more specific

guidance from the nonmovant. Moon Sun Kang, 2014 WL 2048424, at *7. “A trial

court does not abuse its discretion when it does not consider summary judgment

proof to which a movant does not specifically direct the trial court’s attention.”

Burns, 2006 WL 461518, at *4.

Accordingly, the trial court would not have erred by granting Father’s noevidence

summary judgment motion. See Moon Sun Kang, 2014 WL 2048424, at *8

(affirming grant of no-evidence summary judgment when nonmovants’ responses

contained only general citations to incorporated affidavits and exhibits and failed to

cite to specific evidence); Burns, 2006 WL 461518, at *3–4 (affirming grant of noevidence

summary judgment when response merely incorporated materials by

reference without citing to any authority or specific evidence); see also Levine v.

Unique Beverage Co., No. 05-11-01467-CV, 2013 WL 1281896, at *3 (Tex. App.—

Dallas Mar. 19, 2013, pet. denied) (mem. op.) (holding that trial court was not

required to search through ninety-eight pages of evidence attached to plaintiff’s

response to locate summary judgment evidence raising genuine issue of material fact

without more specific guidance from plaintiff); Stephens v. Precision Drilling

Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 WL 1928797, at *6 (Tex. App.—

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Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.) (holding that nonmovant’s general reference to materials incorporated by reference in summary judgment response was ineffective to point out any particular evidence for the purpose of responding to movant’s no-evidence summary judgment motion); Norris v. Tenet Houston Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, at *9–10 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (holding that trial court did not err in granting no-evidence summary judgment when nonmovant globally stated facts, attached approximately a hundred pages of evidence, and did not explain how the evidence supported any of the challenged elements of her causes of action).

We conclude that on this record, Mother has failed to carry her burden to present evidence raising a genuine issue of material fact that there has been a material and substantial change in the circumstances of a child, a conservator, or other party affected by the 2013 Order, and that modification of the 2013 Order would be in the best interest of the children. Accordingly, we hold that the trial court did not err in granting Father’s no-evidence summary judgment.

We overrule Mother’s issues and affirm the trial court’s judgment.