Case Facts:

This is acustody dispute. Leif Erikson and Thorgunna Erikson have one child, S.A.D., who we will refer to as Sara. When Leif and Thorgunna divorced in 2012, Thorgunna was named sole managing conservator, and Leif was named possessory conservator and granted only supervised visits with Sara. In 2016, Leif petitioned to modify the custody order to allow unsupervised visits. Thorgunna resisted the modification, arguing that Leif failed to establish, as a threshold matter, a material and substantial change in circumstances to warrant a modification and, even if he had, Leif failed to meet his burden to obtain unsupervised visitation with Sara. The trial court held an evidentiary hearing and granted the modification. In five issues, Thorgunna contends the trial court abused its discretion in granting the modification.

Leif received a DWI in 2012 while driving a company vehicle. Describing the DWI as the latest in a string of events evincing Leif's on-going issues with alcohol, Thorgunna filed a Suit Affecting Parent Child Relationship (SAPCR) that sought to limit Leif's access to Sara. Thorgunna attached her own multi-page affidavit to her petition in which she recounted numerous events during their marriage when Leif became intoxicated and required law enforcement or family assistance to rectify the situation. Examples included turning on the stovetop burner with an empty pot above the open flame and then, because of his intoxication, walking away with the fire still burning; passing out in public and having the police call Thorgunna in the middle of the night to come pick him up from the jail while Thorgunna was caring for a two-year-old child alone at home; passing out repeatedly in the family home and vehicle; urinating in inappropriate locations in the family home because his intoxication prevented him from finding the bathroom; and mixing alcohol with prescription and illegal drugs. Thorgunna requested that she be named sole managing conservator, that Leif be granted only supervised visits with Sara, and that Leif be prohibited from drinking during the 12 hours preceding periods of supervised visitation and during supervised visitation.

Having returned to his home country of Canada after losing his job and work visa, Leif did not contest the suit. A default judgment was entered. Thorgunna was named sole managing conservator, Leif was named possessory conservator, and Leif was limited to supervised visits. Shortly thereafter, Leif and Thorgunna divorced.

Unlike with the SAPCR, both parties participated in the divorce litigation. It concluded with an Agreed Final Decree of Divorce. The agreed divorce decree incorporated the terms of the earlier SAPCR order and attached that order as an exhibit.Under the terms of the divorce decree, Leif agreed to be limited to supervised visitation and to be prohibited from consuming alcohol before or during his visits with Sara. The decree specified that visitation would be supervised by Thorgunna "or any responsible adult designated by" Thorgunna. As with any other custody order, the agreed final decree of divorce is res judicata as to Sara's best interests at the time of its entry.

Over the next three years, Leif traveled to Texas to visit Sara under Thorgunna's supervision. At times, Leif requested that his mother or someone else be permitted to supervise instead, but Thorgunna always refused. Eventually, Thorgunna began a new relationship. At times, that person and his children would come with Thorgunna and Sara to the supervised visits.

In 2016, Leif filed a petition to modify the custodyorder. Themodifications he sought were to be named joint managing conservator, to have unsupervised visits with Sara, and to be permitted to consume alcohol before and during the visits. After numerous procedural events, including an unauthorized attempt at an interlocutory appeal, the matter was set for an evidentiary hearing in May 2019.

There were three witnesses: Leif, Thorgunna, and Leif's new wife, Freydis. Both sides submitted extensive documentary evidence, including photographs, screenshots of Facebook posts, screenshots of text messages, and child support documents. Thorgunna argued that Leif's Facebook postsmany of which centered on a theme of alcoholshowed that alcohol continued to play a central role in Leif's life and his alcohol use had not diminished. Leif argued he did not have an issue with alcohol and the restrictions were unnecessary. During the proceeding, the trial court ordered Leif to submit to a drug and alcohol test: the test results were negative.

Following the hearing, the trial court entered a modifiedcustody order that permitted Leif unsupervised visits with Sara with a detailed and specific step-up progression that would eventually permit international travel. The order maintained the prohibition against alcohol consumption before and during the visits. Thorguna appealed. We referred the parties to mediation, but Leif objected. After Leif's objection, we notified the parties that the case would be resolved on the briefs.

When asked to identify what had substantially and materially changed since 2012, Leif testified that both he and Thorgunna had gotten married, Sara was older, and his job allows him extended time to be in Houston.

Thorgunna asserted that Leif's alcohol use and the behaviors he exhibited while intoxicated were the reason for supervised visits. Thorgunna argued that there was no evidence those circumstances had improved. She suggested that, if anything, Leif's drinking had worsened. Thorgunna submitted screens of dozens of Leif's Facebook posts, many of which centered on events at which he was visibly drinking or images of alcohol accompanied by Leif's posts speaking approvingly of alcohol. Thorgunna argued that Leif did not show a substantial and material change in his relationship with alcohol or how the changes he cited relate to supervised visitation.

Leif testified that he has since passed pre-hire drug and alcohol tests. He also testified that alcohol is against the law in Saudi where he works a 35-days-on and 35-days-off schedule, meaning he does not drink for 35 days at a time. Leif was asked questions to compare his drinking consumption in 2012 to what it was in 2019 at the time of the hearing. He testified that, in 2012, he "sometimes drank too much" and, on average, would drink four days per week and be intoxicated about one or two days per week. He testified that, in 2019, he would drink three days a week and be intoxicated about once per week, though "it's hard . . . to come up with an average because there's no consistency."

During Leif's testimony, excerpts from his earlier deposition were read, and he confirmed their content. In one of the excerpts, Leif stated he would not agree to stop drinking completely in exchange for unsupervised visits. Leif maintained he did not, and never has, had an alcohol problem.

Issues:

1) What was the reason that Thorgunna asked the Court for supervised visitation and did the original Court agree? Explain in detail giving examples from the facts presented.

2) What does Lief argue are the primary reasons the Court should modify his custody agreement? Explain in detail giving examples from the facts presented.

3) Does Thorgunna agree? Explain in detail giving examples from the facts presented.

4) Finally, do you believe the Court of Appeals will agree with the Trial Court that Lief has met his burden of a material and substantial change? Explain in detail giving examples from the facts presented.