INTEREST OF v. << (2025)

OPINION ON REHEARING

We deny appellants’ motion for rehearing. On our own motion, we withdraw our December 27, 2024 memorandum opinion and vacate the judgment of that date. This is now the opinion of the Court.

Appellants are the maternal grandparents of C.T.H. and H.V.H. They appeal the trial court's order in this suit to modify the parent–child relationship. They sought to be appointed sole managing conservators of the children. Raising seven issues, Grandparents contend the trial court erred in entering permanent injunctions against them and contend the trial court abused its discretion in failing to render judgment on a ten-year-old mediated settlement agreement that arose out of a previous divorce action, in denying their motion to reopen the evidence, and in finding Mother and Father are fit parents. We affirm the trial court's order.

Background

C.T.H. was born in 2009. Mother and C.T.H. lived with Grandparents—Mother's mother and stepfather. In 2012, Mother and Father married, and Mother and C.T.H. moved out of Grandparents’ house. H.V.H. was born in 2013. Mother and her children eventually moved back in with Grandparents and lived with them until 2017. Mother and Father are the parents of both C.T.H. and H.V.H.

In 2012, Grandparents filed an Original Suit Affecting the Parent-Child Relationship where they sought possession and access to C.T.H. Mother and Father later filed for divorce, and Grandparents’ original suit was consolidated with Mother and Father's divorce action. Grandparents became intervenors in the divorce case.

In 2012, all the parties went to mediation and reached a settlement in the form of a Mediated Settlement Agreement (“MSA”). This agreement, filed with the trial court on November 28, 2012, comported with Texas Family Code § 153.0071 and was fully enforceable. It contained the statutory warning that it was irrevocable. It was signed by all the parties and their respective counsel. Among other things, the MSA gave Grandparents visitation with C.T.H. It did not address H.V.H., however, because he was not yet born. The trial court never adopted the MSA as an order of the court. Nothing in the record reflects the MSA was brought to the court's attention before the divorce decree was signed. Grandparents were fully entitled to a judgment on the MSA at the time. However, Grandparents did nothing but agree to entry of the Final Decree of Divorce as it was written. (Grandmother signed it.)

On October 28, 2016, Mother and Father's divorce became final. The divorce decree appointed both parents joint managing conservators, with Mother being the primary conservator, and provided for possession, access, and support of the children.² As agreed to by the parties, Grandmother, intervenor in the divorce case, was ordered to provide secondary health insurance for each of her grandsons as long as child support was payable for that child. Grandparents did not seek any court-ordered visitation with C.T.H. or H.V.H. The plenary power of the trial court expired.

In March 2017, Mother filed a petition to modify the divorce decree for reasons involving Father. A few months later, in September 2017, Mother and the children moved out of Grandparents’ home. Mother claimed Grandmother had been controlling the first time she and C.T.H. lived with her and had become more controlling after Mother's divorce. In July 2018, Mother and the children moved in with Mother's boyfriend. In August 2019, Mother and her boyfriend married.

Three months after Mother moved out of their house, in December 2017, Grandmother and Step-Grandfather intervened in Mother's modification suit.³ Grandparents sought to be appointed sole managing conservators of C.T.H. and H.V.H. They claimed that the children's present circumstances may significantly impair the children's physical health or emotional development. Alternatively, they asked to be named nonparent joint managing conservators or possessory conservators. They also asked for the right to continue providing secondary insurance for the children.

In June 2019, Mother filed an application for temporary restraining order and request for injunctive relief against Grandparents. In September 2019, the associate judge issued a temporary restraining order that enjoined Grandparents from certain conduct, including contacting Mother or the children, and coming within 1,000 feet of the children's home, child-care facilities, or schools. In her live pleading, Mother requested permanent injunctions against Grandparents, the release of Grandmother from her obligation to provide secondary insurance, and dismissal of Grandparents from the suit. Father had no pleadings on file.

A bench trial was held on November 1 and 2, 2021. Much of the testimony involved the mental health of C.T.H. It was undisputed that C.T.H. struggled with mental-health issues most of his life. He was diagnosed with major depression, disruptive mood dysregulation disorder, generalized anxiety, and social anxiety. Before trial, the court appointed two psychiatrists, Dr. Mark Blotcky and Dr. Benjamin Albritton, to conduct forensic examinations of him. The doctors met with the parties and reviewed many documents, including records from the divorce proceeding.

C.T.H.’s mental health suffered on an increasing scale in 2021. In April 2021, he attempted suicide by wrapping a swing around his neck, and in July 2021, he cut his wrists while at a summer camp. Two months before trial, C.T.H. was admitted to inpatient treatment for suicidal ideations at a facility called Mesa Springs. By the time of trial, he had been released from inpatient treatment but was in an intensive outpatient treatment program. Grandmother disagreed with Mother and Father's decisions for C.T.H.’s care and believed he should be placed in a residential treatment center.

At the conclusion of trial on November 2, the judge made an oral ruling. In June 2022, in the interim between the trial and a written order, Grandparents filed a “Motion to Sign Mediated Settlement Agreement” asking the trial court to enter judgment in accordance with the 2012 divorce MSA between them, Mother, and Father. The trial court declined to enter a judgment containing the terms from the MSA relating to the 2016 divorce decree.

The trial court signed a final order on August 5, 2022, which granted Mother's request for modification. It ordered that Mother and Father are the joint managing conservators of the children, with Mother having the exclusive right to designate the primary residence of the children. The trial court released Grandmother from her obligation to provide secondary health insurance. It also found that because of Grandparents’ behavior, a permanent injunction should be granted against them. Grandparents were permanently enjoined from:

1. Contacting or communicating in person, by telephone, or in writing with the children of this suit, Mother, and Mother's husband;

2. Coming within 1,000 feet of the residence, child-care facilities, or schools the children attend, including their current residence;

3. Contacting child-care facilities or schools the children attend;

4. Coming within 1,000 feet of Mother;

5. Disturbing the peace of the children of this suit, Mother, and Mother's husband; and

6. Stalking the children of this suit, Mother, and Mother's husband.

Grandparents filed a combined motion for new trial, motion for reconsideration, and motion to reform and correct judgment. The trial court signed a reformed final order on December 9, 2022, to include an award of attorney's fees omitted from its earlier order. The trial court denied Grandparents’ motions for new trial and reconsideration and made findings of fact and conclusions of law.

Permanent Injunctions

In their first issue, Grandparents contend two of the permanent injunctions violate the United States and Texas Constitutions because they impose prior restraints on speech. Grandparents refer to the provisions of the final order that enjoin them from contacting or communicating with the children, Mother, and Mother's husband and contacting the children's child-care facilities or schools. They assert that before it could impose a prior restraint on their speech, the trial court was required to make certain findings and it failed to do so.

To preserve a complaint for appellate review, the record must show that a party presented to the trial court a timely request, objection, or motion that states the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, and that the trial court ruled on the request, objection, or motion or refused to rule. Tex. R. App. P. 33.1(a). Even constitutional claims must be preserved for appellate review. In re S.V., 599 S.W.3d 25, 40 (Tex. App.—Dallas 2017, pet. denied) (citing In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003)).

Grandparents have not directed this Court to where in the record they made the trial court aware of their complaint that the injunctions were an unconstitutional prior restraint on speech, and we have not found such a complaint. They mentioned the First Amendment in their motion for new trial: “A parent can make decisions regarding their children, but that does not vest the Court with authority to grant injunctive relief enjoining one from asserting their constitutional rights – namely their first amendment rights.” The motion does not mention the right to free speech, prior restraint, or the Texas Constitution. This assertion was not specific enough to apprise the trial court of the complaint they now make, that the permanent injunctions constitute a prior restraint on their right to free speech under the Texas and United States Constitutions. As such, Grandparents failed to preserve this complaint for appellate review. See id. (father who did not argue in trial court that injunctions against him in SAPCR order were prior restraint on his right to free speech failed to preserve argument for appellate review).

Even if Grandparents preserved their complaint, it is without merit. The term “prior restraint” is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Alexander v. U.S., 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). Prior restraints on the right to free speech under the Texas and the United States Constitutions are presumptively unconstitutional. Kinney v. Barnes, 443 S.W.3d 87, 90 (Tex. 2014). The Texas Supreme Court has expressed a preference to sanction a speaker after, rather than before, speech occurs. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992). Gag orders in civil judicial proceedings withstand constitutional scrutiny only when the trial court makes specific findings, supported by the evidence, that (1) an imminent and irreparable harm will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Id. at 10.

Grandparents argue the injunctions at issue cannot stand because the trial court did not make the findings required by Davenport. They rely on two family–law cases in which the trial court enjoined parents from making derogatory remarks about the other party. See Grigsby v. Coker, 904 S.W.2d 619, 620 (Tex. 1995) (per curiam); In re Rigg, No. 05-21-00342-CV, 2022 WL 908951, *7 (Tex. App.—Dallas 2022, orig. proceeding) (mem. op.). In each case, the injunctions were found to be unconstitutional prior restraints because the trial court did not make the necessary findings to support them. Grigsby, 904 S.W.2d at 621; Rigg, 2022 WL 908951, at *7–8.

This case is factually distinguishable from Grigsby and Rigg because the permanent injunctions are not content based. The trial court's order enjoined Grandparents from contacting or communicating with the children, Mother, and Mother's husband and from contacting the children's child-care facilities or schools. These restrictions were not directed at the contents of Grandparents’ communications. Because the injunctions at issue are not content based, the trial court was not required to perform a prior restraint analysis. See, e.g., Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763 n.2, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). We overrule Grandparents’ first issue.

In their second issue, Grandparents contend the evidence does not support any of the six permanent injunctions against them. Before we consider this issue, we address our standard of review. In their seventh issue, Grandparents ask the Court to review whether the traditional requirements of a permanent injunction—a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law—were met, as the Second Court of Appeals does in family–law cases. See, e.g., In re A.A.N., No. 02-13-00151-CV, 2014 WL 3778215, at *1–2 (Tex. App.—Fort Worth July 31, 2014, no pet.) (mem. op.) (per curiam). This Court, however, has long held that the general standards applicable to permanent injunctions in civil cases do not apply in family–law cases. In re J.A.A., No. 05-22-00578-CV, 2023 WL 4944505, at *3 (Tex. App.—Dallas Aug. 3, 2023, no pet.) (mem. op.); In re B.H.W., No. 05-15-00841-CV, 2017 WL 2492612, at *8 (Tex. App.—Dallas June 9, 2017, pet. denied) (mem. op.); Peck v. Peck, 172 S.W.3d 26, 35–36 (Tex. App.—Dallas 2005, pet. denied). In family–law cases, we review a permanent injunction enjoining a party from specific conduct for an abuse of discretion. In re J.A.A., 2023 WL 4944505, at *3.

Grandparents contend the evidence does not support the injunctions under either standard. We decline to address their complaint that the injunctions did not meet the traditional standard for injunctive relief. We will review their argument that the trial court abused its discretion in enjoining their conduct because there was insufficient evidence the injunctions were in the best interest of the children.

A trial court has broad discretion in determining the best interest of a child in family–law matters. In re S.B., No. 05-20-00338-CV, 2023 WL 6284703, at *12 (Tex. App.—Dallas Sept. 27, 2023, no pet.) (mem. op.). In family–law cases, the abuse–of–discretion standard overlaps with traditional sufficiency standards of review. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). As a result, legal and factual sufficiency are not independent grounds of reversible error, but instead are factors relevant to our assessment of whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and whether it erred in its exercise of that discretion. Id. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. In re A.V., No. 05-20-00966-CV, 2022 WL 2763355, at *3 (Tex. App.—Dallas July 15, 2022, no pet.) (mem. op.).

The trial court found the permanent injunctions were necessary due to the high level of animosity between the parties and were in the best interest of the children. It also found that Grandmother had engaged in conduct contrary to the best interest of the children with her continual efforts to impose her decisions and usurp Mother's authority. The court found Grandmother's behavior had risen to the level that it was in the best interest of the children that she be enjoined from contacting their school. It further found it was in the best interest of the children to enjoin Grandparents from interfering with the parenting and co-parenting of Mother and Father, including interfering in their health care decisions.

Grandparents argue the evidence does not link the prohibited conduct to the children's best interest. They assert Mother's testimony was insufficient because it was conclusory. When Mother's counsel asked her at trial what led to her request to enjoin Grandparents from having any contact with her, her children, and her husband, Grandparents’ counsel objected “because there was a pleading on file” about what led Mother to request an injunction. Counsel did not want to “open this up beyond that.” The trial court took judicial notice of the filing and told Mother's counsel to “get to the end.” In accordance with the court's wishes, Mother did not testify in detail about the conduct that led her to seek injunctive relief against her parents.

Nonetheless, the record contains numerous exhibits that document Grandparents’ intrusive behavior after Mother and the children moved out of their house and show Grandparents did not respect the boundaries Mother and Father set for them regarding access to the children. There are pictures of large birthday and holiday gifts Grandparents left for the children outside Mother's home with poster-size notes for the children to read. One note said, “God knows we would never hurt you. You do not need to be afraid.” Grandmother also dropped off a birthday present for H.V.H. at the home of Mother's new in-laws. Along with the present, Grandmother gave Mother's in-laws a letter that was a “grandparent to grandparent” appeal to them to talk to their son about reuniting Grandparents with the boys. In the letter, Grandmother accused Mother of “severe child psychological abuse” against C.T.H. and H.V.H. She included transcripts from Mother and Father's divorce proceeding and other legal documents, among other things.

In addition, prior to the restraining order, both Mother and Father had asked Grandparents not to come to school and sporting events where the children would be. Grandparents continued to do so. Father testified about Grandparents attending C.T.H.’s basketball game after he and Mother asked them to not attend. According to Father, Grandparents were very disruptive. On May 2, 2019, Mother's attorney emailed Grandparents’ attorney to ask that Grandparents stop sending gifts to the boys and stop entering Mother's property. Grandmother posted the letter on her Facebook page, causing Mother's lawyer to write Grandparents’ lawyer again on May 7 demanding Grandparents stop their harassment and unsolicited interactions with Mother and the boys. Even so, Grandparents showed up uninvited to H.V.H.’s kindergarten graduation at the end of May 2019. Further, Grandmother acknowledged she had showed up at the children's school to try to observe them. She further admitted picking through Mother's trash in April 2018. Grandparents’ own witness, court-appointed psychiatrist Dr. Blotcky, testified Grandparents harassed Mother.

Under these facts, the restrictions the trial court put in place are reasonably related to the children and to protecting their best interests. See In re S.B., 2023 WL 6284703, at *13. The trial court had discretion to enjoin Grandparents’ conduct and did not abuse its discretion in doing so. We overrule Grandparents’ second issue.

In their third issue, Grandparents assert there is a conflict between the final order and one of the court's fact findings. The trial court's order contains mutual permanent injunctions between Mother and Father, agreed to by them. Mother and Father were each permanently enjoined from allowing the children to contact Grandparents, allowing Grandparents to babysit for the children or pick them up from school, inviting them to the children's activities, and communicating with Grandparents about the children. The trial court's findings of fact state Mother “has the discretion to choose to allow the grandmother to have access to the children or allow the grandfather to have access to the children.” Grandparents assert that because the order and findings are in conflict, the fact findings control and the injunctions prohibiting Mother from allowing contact between them and the children should be vacated.

When a trial court makes findings of fact, the findings “shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein.” Tex. R. Civ. P. 299. If there is a conflict between findings of fact and the judgment, the findings of fact control. In re N.E.C., No. 05-18-01350-CV, 2020 WL 3286521, at *3 (Tex. App.—Dallas June 18, 2020, pet. denied) (mem. op.). Here, the conflict is harmless error. See Tex. R. App. P. 44.1(a). Even if the injunctions prohibiting Mother from permitting Grandparents to contact or see her children were vacated, as discussed above, there are separate injunctions against Grandparents enjoining them from contacting or communicating with the children. If Mother changed her mind and decided to give her parents access to the children, she would need to seek a modification of the order. We overrule Grandparents’ third issue.

Mediated Settlement Agreement

In their fourth issue, Grandparents contend the trial court abused its discretion by refusing to render judgment on the 2012 MSA. Citing § 153.0071 of the Texas Family Code and related case law, they contend the trial court was required to enforce the terms of the MSA. Because the parties entered into the MSA in the original divorce proceeding, and not in this modification proceeding, we disagree.

In general, a properly executed MSA is binding upon the parties. See Tex. Fam. Code Ann. § 153.0071(d). With certain exceptions that do not apply in this case, if an MSA meets the statutory requirements, a trial court must enter judgment on the agreement.⁴ Id. § 153.0071(e); In re J.A.S.C., 430 S.W.3d 544, 547 (Tex. App.—Dallas 2014, no pet.). An MSA cannot be revoked or modified, even on agreement of the parties. In re D.G.M., No. 05-22-00049-CV, 2023 WL 5030186, at *4–5 (Tex. App.—Dallas Aug. 8, 2023, no pet.) (mem. op.). Nor can the trial court conduct an independent best-interest inquiry. Highsmith v. Highsmith, 587 S.W.3d 771, 775 (Tex. 2019) (per curiam); In re Lee, 411 S.W.3d 445, 450 (Tex. 2013) (orig. proceeding). There is no looking back, no having a change of heart, and no rethinking the deal. An MSA brings finality to the case in which it arose and resolves those issues it covers.

In In re Lee, the Texas Supreme Court described the importance of mediation in contentious child–custody disputes:

Encouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children involved in high-conflict custody disputes. Indeed, the Texas Legislature has recognized that it is “the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code § 154.002 (emphasis added). This policy is well-supported by, inter alia, literature discussing the enormous emotional and financial costs of high-conflict custody litigation, including its harmful effect on children. Children involved in these disputes—tellingly, referred to as “custody battles”—can face perpetual emotional turmoil, alienation from one or both parents, and increased risk of developing psychological problems. All the while, most of these families have two adequate parents who merely act out of fear of losing their child. For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to a divorce or custody dispute. The Legislature has thus recognized that, because children suffer needlessly from traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.

Id. at 449–50 (footnotes omitted). Consistent with this policy, § 153.0071 encourages parents to peaceably resolve their child-related disputes through mediation and ensures that time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized. Id. at 455.

Grandparents rely on § 153.0071, Lee, and our opinion in D.G.M. to show they are entitled to judgment on the 2012 MSA. Lee and D.G.M. are distinguishable. In both cases, the plenary power of the trial court had not expired at the time the party sought judgment on the MSA. See Lee, 411 S.W.3d at 447–48; D.G.M., 2023 WL 5030186 at *2. Here, the trial court lacked plenary power to grant Grandparents’ request for judgment on the MSA in the modification proceeding.

The trial court signed the final judgment in this family's original divorce–grandparent intervention case on October 28, 2016. At that time, Grandparents did not assert or demand their rights to possession pursuant to the 2012 MSA. Grandmother clearly had read the decree and understood its provisions, as she signed off that she “AGREED AS TO FORM AND SUBSTANCE AS TO THE PROVISIONS RELATED TO CHILD SUPPORT, HEALTH INSURANCE ․ AGREED AS TO FORM ONLY AS TO ALL REMAINING ISSUES.” The trial court's plenary power in that case expired on January 26, 2017, 30 days after it denied a motion for new trial. See Tex. R. Civ. P. 329b(e). Grandmother unsuccessfully appealed to this Court on grounds that did not involve the MSA. See In re C.T.H., No. 05-16-01398-CV, 2018 WL 2926737 (Tex. App.—Dallas June 7, 2018, no pet.) (mem. op.).

The trial court retained continuing, exclusive jurisdiction to modify its decree providing for the conservatorship, support, or possession of and access to the children. See Tex. Fam. Code Ann. §§ 155.001(a), 156.001. But the court's continuing and exclusive jurisdiction did not alter its plenary power. In re M.V., No. 01-15-01058-CV, 2016 WL 2744945, at *3 (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op.); see In re Marriage of Cobb, No. 07-23-00311-CV, 2024 WL 3448486, at *2 (Tex. App.—Amarillo July 17, 2024, no pet.) (mem. op.); see also In re M.A.S., 233 S.W.3d 915, 925 (Tex. App.—Dallas 2007, pet. denied). Once the trial court's plenary power expired in the divorce proceeding, the method for Grandparents to attempt to change the decree was through a modification suit. See Marriage of Cobb, 2024 WL 3448486, at *2; see also Lee, 411 S.W.3d at 456–57; Tex. Fam. Code Ann. § 156.101(a) (grounds for modification). A petition seeking a modification in a SAPCR is considered a separate lawsuit. In re S.V., No. 05-18-00037-CV, 2019 WL 516730, at *6 (Tex. App.—Dallas Feb. 11, 2019, no pet.) (mem. op.).

Mother filed her petition to modify on March 27, 2017. Grandparents followed the appropriate procedure to seek a change in conservatorship. They intervened in the new lawsuit and eventually requested full custody of the children. After two days of trial, the trial court denied Grandparents’ request to be named sole managing conservators, removed Grandmother's right to provide secondary health insurance for the children, and issued injunctions which essentially barred Grandparents from the lives of Mother, her husband, and the children. After they did not prevail at trial, Grandparents asked the trial court to enforce the 2012 MSA, by then nearly 10 years old.

Grandparents ask this Court to read into § 153.0071 language that would require a trial court to enter judgment on an MSA after its plenary power expired in the case in which the MSA was mediated. There is no language in the statute to support Grandparents’ interpretation, and we decline to add it. Such an interpretation would lead to an absurd result the legislature could not possibly have intended. See Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). Grandparents have been litigating with their family since 2012. The policy behind § 153.0071 is to bring custody battles to an end and stop the overwhelming emotional and financial burdens that such a case places upon a family. See Lee, 411 S.W.3d at 450–51. Grandparents’ continued litigation over the MSA turns the statute upon its head—exacerbating litigation long after it was concluded in the divorce case. The statute is not a forever statute. An MSA does not apply to any and all cases that happen to involve the same family members at some point in the future. When the plenary power of the trial court expired in the original case and Grandparents had done nothing with the MSA, the MSA simply evaporated. Unlike Lee and D.G.M., the MSA no longer applied because the case in which it was mediated was over.

Although Grandparents may have been “entitled to judgment on the mediated settlement agreement” in 2016 when the final decree was signed, they did not raise that complaint in the trial court in 2016, or seek appellate review of that issue, and the court lost plenary power to correct that 2016 judgment. Tex. Fam. Code Ann. § 153.0071(e). Grandparents’ assertion that they are entitled to judgment on the 2012 MSA is in effect a collateral attack on the 2016 divorce decree that did not incorporate the terms of the 2012 MSA. A collateral attack seeks to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes. In re D.S., 602 S.W.3d 504, 512 (Tex. 2020). Collateral attacks on final judgments are generally impermissible because “it is the policy of the law to give finality to the judgments of the courts.” Id. (quoting Browning v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005)). Such attacks run counter to the strong policy of finality by attempting to bypass the appellate process in challenging the integrity of a judgment. Id. Only a void judgment may be collaterally attacked. Id. A judgment is void when it is apparent that the court rendering judgment had no jurisdiction over the parties or property, no jurisdiction over the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act. Id. Grandparents do not contend the trial court's original decree is void. We decline to set the 2016 judgment aside to give effect to the 2012 MSA.

The doctrine of res judicata also precludes enforcement of the MSA. Res judicata bars relitigation of a claim that has been finally adjudicated or could have been litigated in a prior action. Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017). In family–law cases, the modification statute's requirement that the party seeking modification must establish a material and substantial change in circumstances is predicated upon the doctrine of res judicata. In re S.N.Z., 421 S.W.3d 899, 911–12 (Tex. App.—Dallas 2014, pet. denied) (citing Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969)). The statute reflects the understanding that the first judgment, at the time it was entered, was res judicata of the question of the child's best interest and of custody issues. In re C.J.C., 603 S.W.3d 804, 818 (Tex. 2020). The 2016 final decree is res judicata of the children's best interests as to the conditions existing at that time. See Knowles, 437 S.W.2d at 817. Once the 2016 judgment became final, it was also res judicata of whether “a party is entitled to judgment on the mediated settlement agreement.” Tex. Fam. Code Ann. § 153.0071(e); see Highsmith, 587 S.W.3d at 778 (holding that “judgment on an MSA is not automatic,” and a party is entitled to notice of a hearing to enforce or contest entry of judgment on an MSA.). It would be contrary to res judicata principles to now recognize the 2012 MSA. For all these reasons, Grandparents were not entitled to judgment on the MSA. The time for Grandparents to seek judgment on the MSA was during the original divorce–intervention proceeding. We overrule their fourth issue.

Request to Reopen the Evidence

In their fifth issue, Grandparents argue the trial court abused its discretion in denying their motion to reopen the evidence after trial. On June 24, 2022, Grandparents filed a motion to reopen their case in chief. They alleged that after the court made its oral ruling on November 2, 2021, Mother engaged in conduct that significantly impaired the children's mental health.

The alleged conduct included several interviews that discussed C.T.H.’s sexuality and mental-health issues in a “public and permanent forum.” Grandparents wished to present evidence of Mother's November 2021 discussion of C.T.H.’s case on yahoo.com; a November 15, 2021 international article on the Daily Mail's website quoting Mother regarding C.T.H.’s sexuality and suicidal behaviors; a March 8, 2022 interview C.T.H. did with NBC News, as well as Mother's posting the interview on her Facebook page; and a March 8, 2022 podcast interview with C.T.H. and Mother. The trial court denied the motion.

A trial court has discretion to reopen a case for the purpose of admitting additional evidence. Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.—Dallas 2004, pet. denied); see also Tex. R. Civ. P. 270 (court may permit additional evidence to be offered at any time). Although that discretion should be exercised liberally so both parties are permitted to fully develop their cases, unless a trial court has clearly abused its discretion, an appellate court should not disturb its refusal to open a case for the purpose of admitting additional evidence. Naguib, 137 S.W.3d at 372. In determining whether to permit additional evidence, a trial court may consider: (1) the movant's due diligence in obtaining the evidence, (2) the decisiveness of the proffered evidence, (3) any undue delay the reception of the evidence could cause, and (4) any injustice the granting of the motion could cause. Id. at 373. If not all of these factors are satisfied, a trial court's denial of a motion to reopen evidence should not be disturbed. Id.

Here, not all of the factors have been satisfied. The trial court had discretion to determine that Grandparents were not diligent in asking the court to reopen the case. Some of the interviews were conducted in November 2021 and others took place in March 2022, and Grandparents waited until June 2022 to ask the trial court to reopen their case. The trial court also had discretion to determine that reopening the case would cause undue delay. In addition, the substance of the evidence Grandparents sought to present was available to the trial judge. As the finder of fact in this nonjury trial, the judge was in the best position to determine whether the proffered evidence was decisive. The motion to reopen is nearly 30 pages long. It contains links to and/or excerpts of the interviews and news articles Grandparents wanted the trial court to consider. The trial court's written order denying the motion indicates the judge considered the substance of the proffered evidence. The trial judge made handwritten edits to the order to indicate she denied the motion “after consideration of the motion and content thereof.” The trial court did not abuse its discretion in denying Grandparents’ request to reopen their case. We overrule Grandparents’ fifth issue.

Parental Fitness

In their sixth issue, Grandparents contend the trial court abused its discretion by appointing Mother and Father joint managing conservators and denying Grandparents’ request for sole managing conservatorship and possession. The court expressly found that Mother is a fit custodial parent who had substantial objections regarding Grandparents continued participation in their lives and impliedly found Father was a fit parent. Grandparents maintain the evidence is factually insufficient to show parental fitness.

We review a trial court's conservatorship determination for an abuse of discretion. In re A.V., 2022 WL 2763355, at *3. A grandparent's rights are generally subordinate to a parent's rights. In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (per curiam). The right to custody, care, and nurture of a child always resides first in the parents. In re C.J.C., 603 S.W.3d at 812. There is a legal presumption that it is in a child's best interest to be raised by his or her parents. Id. The fit-parent presumption is “deeply embedded in Texas law” as part of the determination of a child's best interest. Id.; see also Tex. Fam. Code Ann. § 153.131 (presumption that parent should be appointed managing conservator). A fit parent presumptively acts in the best interest of his or her child and has a fundamental right to make decisions concerning the care, custody, and control of that child. In re C.J.C., 603 S.W.3d at 808.⁵

Grandparents had the burden to prove by a preponderance of the evidence that Mother and Father were not fit.⁶ See In re A.V., 2022 WL 2763355, at *4 . “[So] long as a parent adequately cares for his or her children, (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re C.J.C., 603 S.W.3d at 818.

Grandparents do not dispute that the fit-parent presumption applies. They contend they rebutted that presumption with “overwhelming evidence” of lack of parental fitness. They argue that evidence falls into four categories: (1) Mother's and Father's history of instability and conflict; (2) Mother's personality disorder, which prevents her from making good parenting decisions and providing stability; (3) Mother's decision to take the children away from Grandparents and prevent them from having contact with them; and (4) Mother's alienation of the children against Grandparents.

First, Grandparents contend Mother and Father are unfit because they have a history of instability and conflict. Grandparents’ evidence included many text messages between Mother and Father. Grandmother reviewed the messages and testified they showed “long-term constant parental conflict.” From our review of the evidence, the trial court as fact finder could have concluded the amount of conflict shown in the messages was not inappropriate for divorced parents who are caring for a child with serious mental-health issues and also showed an effort to communicate and co-parent with the children's best interest in mind.

Next, Grandparents contend Mother has a personality disorder. In their brief, they represent that Dr. Blotcky testified Mother had a personality disorder that prevents her from providing long-term stability. Dr. Blotcky did not personally diagnose Mother with a personality disorder, and the record is not clear that Mother has one. In evaluating C.T.H., Dr. Blotcky reviewed records from a Dr. Robert Gordon. Dr. Gordon reviewed Mother's “MMPI-2” and interpreted it to reflect a personality disorder that would likely interfere with parenting. Dr. Blotcky was asked if he agreed with Dr. Gordon's description of Mother. Mother objected on various grounds, and the trial court sustained the objections. Dr. Gordon's records predated the 2016 divorce, and in determining whether the divorce decree should be modified, the trial court limited its review to the circumstances of a party that have material and substantially changed since the entry of the decree of divorce. Tex. Fam. Code Ann. § 156.101. It is unlikely the judge gave much weight to evidence of any personality disorder. Further, at the time of trial Mother was in a stable home and marriage and had lived in the same place for three years.

Grandparents’ remaining two arguments about fitness are related. They contend Mother is unfit because she decided to prevent the children from having contact with them and also because she intentionally alienated the children against them. Evidence showed Grandparents were actively involved in the care of the children when the Mother and children lived with them. However and as discussed in connection with our review of the injunctions against Grandparents, there is evidence in the record to reflect that Mother had legitimate reasons to disassociate herself and her children from her parents.

A parent is fit if they adequately care for their children. In re A.V., 2022 WL 2763355, at *5. Grandparents have not shown the children were not adequately cared for. To the contrary, the record reflects they were more than adequately cared for. The trial court found that Mother “has gone to monumental efforts to assist her sons with their behavioral issues.” The record supports this determination. Mother testified C.T.H. had mental-health issues from a young age. She sought treatment for him; he saw a counselor and a psychiatrist. When Mother found out about C.T.H.’s suicide attempts, she contacted Father, and C.T.H.’s counselor and psychiatrist. When Mother became aware in early September 2021 that C.T.H. was having suicidal ideations, within about 12 hours she admitted him to Mesa Springs for inpatient therapy.

C.T.H.’s mental-health caregivers also presented evidence of Mother's level of fitness. A psychiatrist who treated C.T.H. at Mesa Springs indicated Mother participated in his treatment there. Jody Payson was C.T.H.’s counselor before he went into inpatient care. She testified Mother asked for guidance on how to handle C.T.H.’s suicide attempts and followed through with her recommendations. Payson also believed Father was following her recommendations. In Payson's professional opinion, Mother and Father are attempting to meet C.T.H.’s needs. Even Dr. Blotcky and Dr. Albritton, Grandparents’ witnesses, thought Mother was addressing C.T.H.’s mental-health needs.

While the focus at trial was on the parenting of C.T.H., the record reflects Mother and Father were also addressing H.V.H.’s needs. We conclude Grandparents did not meet their burden to prove that Mother and Father are unfit parents. The trial court had sufficient evidence upon which to exercise its discretion to determine that Mother and Father were fit parents. The trial court did not abuse its discretion in denying Grandparents’ request for conservatorship rights and in appointing Mother and Father joint managing conservators. We overrule Grandparents’ sixth issue.

We affirm the trial court's reformed order of December 9, 2022.

FOOTNOTES

2.   See Tex. Fam. Code Ann. § 153.133(a)(1).

3.   In their petition for intervention, Grandmother and Step-Grandfather alleged they have standing as persons who have had actual care, control, and possession of the children for at least six months ending not more than 90 days preceding the date of the filing of the petition. Tex. Fam. Code Ann. § 102.003(a)(9) (effective September 1, 2025, this section requires exclusive care, control, and possession, but the version in effect at the time of the intervention in this case required actual care, control, and possession). Further, the trial court could have considered § 102.004(b) of the family code and determined Grandparents had standing to intervene as persons “with substantial past contact with the child.” The trial court determined that Grandparents had standing to bring the intervention. No one challenged this issue before the trial court.

4.   See Tex. Fam. Code Ann. § 153.0071 (e-1). Further, parties may challenge the validity of an MSA through contractual defenses such as illegality, fraud, duress, or coercion. In re D.G.M., No. 05-22-00049-CV, 2023 WL 5030186, at *5 n.5 (Tex. App.—Dallas Aug. 8, 2023, no pet.) (mem. op.).

5.   For SAPCRs pending in a trial court on or after September 1, 2025, the family code now provides: “In a suit between a parent and a nonparent, it is a rebuttable presumption that: (1) a parent acts in the best interest of the parent's child; and (2) it is in the best interest of a child to be in the care, custody, and control of a parent.” Tex. Fam. Code Ann. § 153.002(b).

6.   For SAPCRs pending in a trial court on or after September 1, 2025, the family code now provides: “In a suit between a parent and nonparent, the nonparent may overcome the presumption under Subsection (b) [the fit parent presumption] by proving by clear and convincing evidence that denial of the relief requested by the nonparent would significantly impair the child's physical health or emotional development.” Tex. Fam. Code Ann. § 153.002(c) (emphasis added).

Opinion by Justice Jackson