Opinion
06-20-00089-CV
08-19-2021
IN THE INTEREST OF T.I. AND D.I., CHILDREN
Date Submitted: April 27, 2021
On Appeal from the County Court at Law No. 2 Brazos County, Texas Trial Court No. 19-002018-CV-CCL2
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Ralph K. Burgess Justice
When Mother and Father were divorced in 2011 in Harris County, the trial court gave Mother the exclusive right to determine the primary residence of their minor children, T.I. and D.I., within Harris County and contiguous counties. In 2015, Mother moved with the children to College Station and remarried, and in 2018, they moved to Navasota. After the last move, Father filed a suit to modify the original order and a motion to enforce the geographical restrictions. The action was subsequently transferred to Brazos County, where the trial court granted Father's requested modifications.
It is undisputed that College Station is located in Brazos County and that Navasota is located in Grimes County. We take judicial notice that neither Brazos County nor Grimes County is contiguous to Harris County. See TEX. R. EVID. 201(b)(2), (c)(1).
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
By various issues, Mother complains that the trial court abused its discretion by finding (1) that there was a material and substantial change of circumstances warranting the modifications ordered by the court and (2) that the modifications ordered were in the best interests of the children. Mother also asserts (1) that Father was barred by laches, equitable estoppel, and waiver from asserting any change in circumstances based on her moves to Brazos County and Grimes County and (2) that the trial court's order was insufficient under Section 153.072 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.072. Because we find that the trial court did not abuse its discretion, that Mother forfeited her complaint regarding laches, equitable estoppel, and waiver, and that Mother's Section 153.072 complaint is without merit, we affirm the trial court's order.
I. Background
When Mother and Father were divorced in 2011, they were appointed joint managing conservators with Mother having the exclusive right to designate the primary residence of then three-year-old T.I. and two-year-old D.I. within Harris County and contiguous counties. The final decree of divorce (the Original Order) forbade the parties from removing the children from Harris County and contiguous counties for the purpose of changing the primary residence of the children absent an order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court. The parties were also ordered to give written notice to the other party and to the court of any intended change in their residence address before the sixtieth day before the intended change. The Original Order also provided that both conservators had the right to be designated on the children's records as an emergency contact.
On November 1, 2018, Father filed a motion for enforcement of the geographical restriction on the residence of the children (Motion for Enforcement). In the motion, Father alleged that Mother had removed the children from Harris County and the contiguous counties for the purpose of changing their primary residence and requested that Mother be held in contempt and other relief. On the same day, Father filed his suit to modify the parent-child relationship (Suit to Modify). In his Suit to Modify, Father asserted that there had been a material and substantial change in circumstances consisting of Mother's removal of the children to College Station, and then to Navasota; enrolling the children in four different schools since the 3 divorce, which he believed negatively impacted their developmental needs; Mother's training the children to call another man their father; and her intentional interference with his relationship with his children. Father requested that the Original Order be modified to appoint him as the person who had the right to designate the primary residence of the children, to give him the exclusive and independent right to make educational decisions concerning the children, to grant Mother possession under a standard possession order, and to order Mother to pay child support.
Mother filed her answer to the Motion for Enforcement and the Suit to Modify and asserted the affirmative defenses of waiver and estoppel based on Father's failure to contest her move in 2015. Father subsequently filed an amended motion for enforcement of the geographical restriction (Amended Motion for Enforcement), to which Mother filed an answer. In her live pleading responding to the Amended Motion for Enforcement, Mother pleaded the affirmative defenses of waiver, estoppel, and laches. Mother also filed a counter-petition to modify the parent-child relationship (Counter Petition) in which she requested that the Original Order be modified to provide that (1) the primary residence of the children be within 150 miles of Brazos County, (2) holidays be unaffected by distance, and (3) the exchange of the children occur at a specified location in Navasota.
The evidence at trial showed that, between the time of the divorce and June 2015, Mother and the children lived at two residences in Houston. In June 2015, Mother moved with the children to College Station, without obtaining an order from the court of continuing jurisdiction or the written agreement of Father. Mother testified that she verbally notified Father of her planned move in May, but it is undisputed that she did not give him sixty days' written notice. Although Mother testified that Father said he was fine with the move, she admitted that she told him that she was moving because of work but that a week after she relocated to College Station, she and the children moved into an apartment with her then-boyfriend, Benjamin. In August 2018, Benjamin, Mother, and the children moved to Navasota. Although Mother testified that she told Father of her planned move to Navasota in June, Father claimed that he learned of the move after it had happened. Mother and the children's residence in Navasota was located near a state prison.
Mother and Benjamin were married in October 2015.
Father testified that he received written notice of the move to Navasota in 2018. Mother's exhibits show that Mother sent written notification of their new address on August 24, 2018, which was received by Father on August 29, 2018.
Both Mother and Benjamin work for the Texas Department of Criminal Justice (TDCJ). Because Benjamin is a ranking officer with the TDCJ, they can reside in state housing assigned to correctional officers.
Father testified that he resided in Houston and had resided in the same house for over fifteen years and that his mother, father, and younger sister resided with him. He testified that he had not remarried and had no other children. Father had worked for a company that develops oil and gas IT software for thirteen years. He testified that he had family support in raising the children, that his work was flexible, and that his house had six bedrooms, with the children having their own bedrooms.
He testified that he bought two footballs for T.I. so he could have one at both his house and his Mother's house. He explained that he did that so T.I. could learn to catch after T.I. had told him that other kids would not play with him because he could not catch. He said he used the footballs to teach both children life skills such as being determined, leadership, and teamwork. According to Father, T.I. had grown confident and was trying out for the seventh-grade football team. Father said that D.I. was in U.I.L. competition and that Father had been driving from Houston to the house in Navasota to practice with him. Father attended all of D.I.'s competitions.
Father was concerned that Mother and the children were living near a prison. Mother told him that there are patrol vehicles that are equipped with pistols, shotguns, and ammunition and that the correctional officers have firearms and chemical agents. He testified that he was concerned that his children were living in that environment. He also testified that he was concerned with the children having to change schools every time Mother moved and with T.I. attending five different schools, and D.I. four, since the divorce. He was concerned that this caused instability with his sons having to begin new friendships. Father testified that he was never consulted on the changes in schools and only found out about the changes after the fact.
Only one change was because of moving up in grades.
He was also concerned because there had been more frequent behavior issues related to school, and Mother would not discuss those with him. He testified that he had received telephone calls from the school and that he could not go to work because he had to have a parent/teacher or parent/principal conference regarding behavior issues. Father had to leave work to go to the children's school five or more times per child in the last year. It took him one and one-half hours to drive from work to the school. He said that he had attempted to call and text Mother before going, but nine out of ten times he was unsuccessful at reaching her, and he had to attend to it himself. Although he asked Mother about her and Benjamin's work schedules through Our Family Wizard so he could be available when they were not, Mother refused to tell him.
Father also gave other examples of behavioral issues the children had exhibited and Mother's lack of cooperation in addressing them. In February, he received a telephone call from the school regarding a disruption in the cafeteria by T.I. He contacted Mother to see if they could address it together, and she said she would get to the bottom of it. When he heard nothing more, he met with the teacher, addressed it himself, and later followed up with the teacher to make sure he was not regressing. Another time, he had to address a fight at school involving T.I. Although he tried to contact Mother, after receiving no reply, he drove to Navasota and met with the principal and T.I.'s coach.
During the pandemic, both children missed two weeks' worth of school assignments, and Father emailed Mother about it, but she said she did not receive an email from the teacher, and she did not seem to want to address it. Father addressed it and contacted all of the children's teachers and asked them to email him if they were having problems with their assignments. Although he received emails regarding missing assignments, Mother said she never did. Also, D.I. made an allegation against a teacher that was not true.
The principal of D.I.'s elementary school testified that D.I. and Mother accused his math teacher of saying in a small group that God was going to kill D.I. The other children in the group did not confirm it, but D.I. never retracted his statement. D.I.'s math teacher, Ms. Ogden, testified that she found out about the accusation from the principal, then saw it on an online post by D.I. She had a meeting with Mother and D.I., and Mother believed D.I. Father thought that they should have brought it to Ms. Ogden first. She also testified that she had issues with D.I. not completing his work or not completing his work to a passing grade. Ogden testified that she sent notes home regarding missing assignments in his backpack. In February, she sent work on the tenth that was to be completed by the fourteenth that was not done. She sent a note in D.I.'s backpack on the fourteenth and got an email from Mother on the twentieth asking Ogden to email any homework assignments to her. In the email, Mother stated that D.I. had said that he gave the homework to Ogden and that Ogden lost it. Ogden explained to Mother that that was not the case. Ogden testified that she had only met with Mother when D.I. made his accusation against her and that she had 7 met with Father three times at his request. Both Ogden and D.I.'s principal testified that D.I.'s behavior may have been related to the lawsuit.
Father testified that he had had issues with D.I. not being truthful. In addition to the false allegation against his teacher, Father testified that D.I. sometimes said he had turned in homework when he had not. When he told the children that it was okay to make a mistake, but always be honest, D.I. told him that lying was not bad if you do it to protect a person you love. In addition, he had concerns that the children were keeping secrets. For instance, they did not mention it when Benjamin moved in or when Mother and Benjamin's child was born.
Father was also concerned about the supervision the children received at Mother's house. He testified that he received email notifications from an online video game that indicated that the children were accessing the game at 3:00 o'clock one Saturday morning, and another time at 1:00 a.m. on a school night. Mother testified that, when Father told her about these incidents, she removed him from their account so she could monitor D.I.
Father believed that, when he brought the modification suit, Mother brainwashed the children to attack him. He obtained a drawing in discovery that was supposedly by D.I. that accused him of abuse. The drawing indicated that Father beat him, spanked him with a belt, punched him, threw him down, called him the 'N' and 'P' word, and forced him to eat fish and rice, all of which Father denied.
Father also believed that Mother was trying to replace him with Benjamin as the children's father. Father testified that Benjamin had registered the children at school without his knowledge and that Benjamin had taken the children to the doctor and left the impression that he was their dad. Father also obtained records from the school that showed Benjamin as the father of T.I. and that Benjamin had signed the emergency medical authorization. He also testified that he had received drawings in discovery that were signed by T.I. and D.I. that referred to Benjamin as their "Dad," although both children denied calling Benjamin "Dad."
Father testified that, since the case began, the children had gone from being vibrant, energetic, and extroverted to not smiling and introverted. The children changed from running to find their grandparents when they came over, to ignoring them and no longer eating the food they prepared. He attributed these changes to both the instability in their lives and confusion because of Mother's attempt to make their stepdad their dad.
Father's sister, Theresa, confirmed Father's testimony regarding the changes in the children's behavior and demeanor and in the way they related to family members. She also testified that, when the children stayed with Father for thirty days, there was an improvement in their behavior, and they began to smile and interact with the other family members.
Mother testified that she had three children, and the youngest was J.W. She had been a correctional officer for ten years. She, Benjamin, and the three children lived in state housing assigned to correctional officers in Navasota. She explained that their residence was close to a prison but that the prison was not visible from her house. There were between thirty and fifty correctional officers and their families that lived in the State housing. T.I. and D.I. each had their own room.
At the time of the hearing, T.I. was going into the seventh grade, and D.I. was going into the sixth grade, both at Navasota Junior High. The previous year, T.I. made As and Bs, and D.I. made Bs. However, Mother also testified that, after her move to College Station, T.I. was held back a year in school because he struggled with math. They both had friends at school and played sports. Mother was concerned that they would have trouble adjusting if they had to go to school in Houston since they would not be near their friends and the student/teacher ratio was higher. She testified that, when they got in trouble at school, she took away their video games and that the children respected her parental authority. According to Mother, both she and Benjamin helped the children with their homework.
Mother also testified that she encouraged the children, hugged them, and gave them goodnight kisses. She said that she kept communications open and that she was always available to them. She also said prayers with them and encouraged them to write notes and make drawings about their feelings. She maintained that the children's notes regarding their stepdad were made on Father's Day in 2018, before the suit was filed, and that the drawings regarding the alleged abuse by Father were discovered after a weekend with Father. She denied coaching the children when those notes and drawings were made.
Mother explained that she did not have access to her cell phone or to email while she was at work. She also maintained that she and Benjamin did not work at the same time, so one of them was always available. She also testified that the 3:00 a.m. incident with the video games happened while she was asleep and that she grounded D.I. after Father told her about it. After the 1:00 a.m. incident, she cancelled D.I.'s video game account because he did that without permission.
Mother's mother testified that she had lived with Mother for ten months and that she babysat the children when Mother was not available. She affirmed that Mother loved and 10 provided for the children, interacted with them, and helped them with their homework. She also testified the the children were always unhappy when they came back from Father's house.
After the trial court interviewed T.I. and D.I. in its chambers, it denied Father's Motion for Enforcement, but granted Father's Suit for Modification. In accordance with its ruling, the trial court entered an order modifying the Original Order that appointed Father and Mother joint managing conservators, gave Father the exclusive right to designate the primary residence of the children within Harris County and the exclusive right to make decisions concerning the children's education, gave Mother rights of possession under a standard possession order, and ordered Mother to pay Father child support in the amount of $704.16 per month (the Modification Order). In the Modification Order, the trial court found that the material allegation in the petition to modify was true and that the modifications were in the best interests of the children.
II. Standard of Review
"A trial court may modify a conservatorship order if the 'circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed' since the time of the rendition of the divorce decree and if modification is in the child's best interest." In re A.J.M., No. 10-14-00284-CV, 2016 WL 936869, at *2 (Tex. App.-Waco Mar. 10, 2016, no pet.) (mem. op.) (quoting TEX. FAM. CODE ANN. § 156.101(a)(1)(A)). "A court's determination of whether a material and substantial change of circumstances has occurred is not based on rigid rules and is fact-specific." Id. (citing Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.-Austin 2006, pet. denied)). "Material changes may be established by either direct or circumstantial evidence." Id. (citing In re T.M.P., 417 S.W.3d 557, 564 (Tex. App.-El Paso 2013, no pet.)). "Whether a particular change is material and substantial depends on the circumstances of each case." Id. (citing In re T.M.P., 417 S.W.3d at 564).
"A trial court's decision to modify a joint managing conservatorship is reviewed for a clear abuse of discretion." Id. (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). Under this standard, legal and factual sufficiency are not treated as independent grounds, rather they are "factors relevant to our assessment of whether the trial court abused its discretion." Marriage of Chizum, No. 10-11-00167-CV, 2011 WL 6225378, at *3 (Tex. App.-Waco Dec. 14, 2011, no pet.) (mem. op.) (citing Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.-Fort Worth 2004, no pet.)). Consequently, to determine whether the trial court abused its discretion, we consider "(1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in the application of its discretion." In re A.J.M., 2016 WL 936869, at *2 (citing Echols v. Olivarez, 85 S.W.3d 475, 477-78 (Tex. App.-Austin 2002, no pet.)). The trial court does not abuse its discretion "as long as some evidence of a substantive and probative character exists to support the trial court's decision." Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.-Austin 2006, pet. denied).
When no findings of fact and conclusions of law are filed, it is "implied that the trial court made all the findings necessary to support its judgment." Worford, 801 S.W.2d at 109 (citing Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988)). "In determining whether some evidence supports the judgment and implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely any contrary evidence." Chizum, 2011 WL 6225378, at *3 (citing Worford, 801 S.W.2d at 109). We affirm the judgment on any legal theory supported by the evidence. Id. (citing Worford, 801 S.W.2d at 109). Further, "[w]e are mindful that 'the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.- Texarkana 2013, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). "We, therefore, defer to the trial court's judgment in matters involving factual resolutions and any credibility determinations that may have affected those resolutions." Id. (citing George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.-Houston [1st Dist.] 2007, no pet.)).
Contrary to Mother's representations in her brief, no findings of fact and conclusions of law were filed by the trial court. Rather, only an unsigned document entitled "Findings of Fact and Conclusions of Law" appear in the record. Unsigned findings of fact and conclusions of law are not considered the trial court's findings. Smith v. Karanja, 546 S.W.3d 734, 738 n.5 (Tex. App.-Houston [1st Dist.] 2018, no pet.); In re D.S.B., No. 05-14-00950-CV, 2016 WL 4436377, at *3 n.5 (Tex. App.-Dallas Aug. 22, 2016, no pet.) (mem. op.).
Mother timely filed a request for findings of fact and conclusions of law and timely filed a notice that the findings and conclusions were past due; however, on appeal, Mother does not complain that the trial court erred by not filing findings of fact and conclusions of law. Consequently, we imply that the trial court made all findings necessary to support its judgment. See In re L.E.M., No. 05-16-00209-CV, 2017 WL 3474012, at *1 n.1 (Tex. App.-Dallas Aug. 14, 2017, no pet.) (mem. op.); Kerlick v. Kerlick, No. 03-14-00620-CV, 2016 WL 4506162, at *2 n.12 (Tex. App.-Austin Aug. 24, 2016, pet. denied) (mem. op.); Romano v. Newell Recycling of San Antonio, LP, No. 04-07-00084-CV, 2008 WL 227974, at *1 (Tex. App.-San Antonio Jan. 30, 2008, no pet.) (mem. op.).
III. Analysis A. Mother Forfeited Her Affirmative Defenses
In her second issue, Mother asserts that Father is barred by laches, equitable estoppel, and waiver from asserting any material and substantial change based on her move to Brazos County and the later move to Grimes County. Father asserts that Mother has forfeited this issue. We agree.
Laches, estoppel, and waiver are affirmative defenses. TEX. R. CIV. P. 94. A party asserting an affirmative defense has the burden to plead, prove, and secure findings on the affirmative defense, or it is waived. Woods v. WilliamM. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex. 1988). A party who fails to request findings on her affirmative defense forfeits the complaint on appeal. Id. at 518. In this case, Mother pleaded estoppel and waiver in her answer to the Suit to Modify, but did not plead laches. At trial, Mother never argued to the trial court that laches, estoppel, or waiver barred Father's complaint that her moves to Brazos County, and Grimes County constituted a material and substantive change in circumstances. In addition, Mother failed to request findings of fact regarding any of these affirmative defenses. Under this record, we find that Mother forfeited these complaints on appeal. We overrule Mother's second issue.
Mother only pleaded laches in her live pleading responding to Father's Amended Motion for Enforcement. In this case, Father's Amended Motion for Enforcement was heard in the same hearing as his Suit to Modify. Under this circumstance, any evidence supporting Mother's affirmative defense of laches to the Amended Motion for Enforcement would not support a claim that laches was tried by consent as an affirmative defense to the Suit to Modify. See Bos v. Smith, 556 S.W.3d 293, 308 (Tex. 2018) ("The doctrine of trial by consent does not apply when the evidence of an unpleaded matter is relevant to the pleaded issues because it would not be calculated to elicit an objection." (quoting Moneyhon v. Moneyhon, 278 S.W.3d 874, 879 n.6 (Tex. App.-Houston [14th Dist.] 2009, no pet.)).
Even if Mother had not forfeited her waiver and estoppel claims, and assuming the trial court considered those claims, the record supports an implied finding that Mother did not establish her claims. Waiver may "be asserted against a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right." Moore v. Moore, 568 S.W.3d 725, 731 (Tex. App.-Eastland 2019, no pet.) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)). It is primarily an issue of intent. Id. (citing Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003)). "A party may establish an implied waiver through a party's actions, but the surrounding facts and circumstances must clearly demonstrate an intent to waive the right." Id. (citing Jernigan, 111 S.W.3d at 156). Similarly, to be estopped from asserting his complaint regarding Mother's removal of the children from Harris County and the contiguous counties, Father's statements or actions showing an adverse position must be deliberate, clear, and unequivocal. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); Am. Sav. & Loan Ass'n v. Musick, 531 S.W.2d 581, 589 (Tex. 1975). The evidence in this case did not clearly show Father's intent to waive his rights to complain about Mother's moves and did not show that, by his statements or actions, he deliberately, clearly, and unequivocally indicated he would not assert this complaint.
B. The Trial Court Did Not Abuse Its Discretion by Finding There Was a Material and Substantial Change of Circumstances Warranting Modification
In several issues, Mother challenges the trial court's finding that there was a material and substantial change of circumstances that warranted modifying the Original Order to appoint Father as the person who determined the children's primary residence and to give Father the exclusive right to make decisions concerning the children's education.
However, in In re L.G.H., both parties sought to be named the parent with the right to establish the child's domicile. In the cases cited by In re L.G.H., both parties filed pleadings that sought similar changes in the conservatorship order. See In re A.E.A., 406 S.W.3d 404, 409 (Tex. App.-Fort Worth 2013, no pet.) (both parties sought to be named the person with the exclusive right to make decisions concerning the child's education); In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.-Dallas 2013, no pet.) (P.L. sought to be appointed sole managing conservator, and M.L. sought to be named the parent with the exclusive right to determine primary residence of the child). At least one court of appeals has held that one party's allegation of a material and substantial change of circumstances in a pleading that sought a change in visitation and child support was not a judicial admission that there was a material and substantial change regarding designating the primary residence of the child. Epps v. Deboise, 537 S.W.3d 238, 246 (Tex. App.-Amarillo 2017, no pet.). In this case, Mother sought a change in the geographic restriction, holidays, and location for the exchange of the children. It is unclear whether the Waco Court of Appeals would hold that Mother's allegation of a material and substantial change of circumstances with regard to these issues would be a judicial admission to a material and substantial change of circumstances in regard to changing the person who has the exclusive right to designate the primary residence of the children and the exclusive right to make decisions concerning the children's education. Because the outcome in the case will be the same whether the Waco court would find a judicial admission or not, we need not make this determination. Father asserts that Mother judicially admitted that there had been a material and substantial change of circumstances in her Counter-Petition. "Assertions of fact, not pleaded in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." In re L.G.H., No. 10-16-00018-CV, 2017 WL 1749808, at *2 (Tex. App.-Waco May 3, 2017, no pet.) (mem. op.) (citing Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)). "A judicial admission that is clear and unequivocal has conclusive effect and bars the admitting party from later disputing the admitted fact." Id. (citing Wolf, 44 S.W.3d at 568). "Generally, one party's 'allegation of changed circumstances of the parties constitutes a judicial admission of the common element of changed circumstances of the parties in the other party's similar pleading.'" Id. (quoting In re A.E.A., 406 S.W.3d 404, 410 (Tex. App.-Fort Worth 2013, no pet.); In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.-Dallas 2013, no pet.)). In In re L.G.H., the mother of the child appealed an order that modified an order naming her the parent with the exclusive right to establish the child's domicile to give that right to the father of the child. Both parties had filed pleadings seeking a modification of the conservatorship and possession order seeking to be named the parent with the right to establish the child's domicile. Id. at *1. The Waco Court of Appeals held that, since the mother had pleaded that there was a material and substantial change of circumstances, her judicial admission barred her from complaining that there was not sufficient evidence of a material and substantial change to support a modification of the prior order. Id. at *2.
The Texas Family Code provides that a court may modify a conservatorship order, the terms and conditions of conservatorship, and the possession of or access to a child if (1) "the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed" since the rendition of the order and (2) "if modification would be in the best interest of the child." TEX. FAM. CODE ANN. § 156.101(a)(1)(A). Under the statute, the only requirement to satisfy the first prong is that a material and substantial change must be shown. "Whether a particular change is material and substantial depends on the circumstances of each case." In re A.J.M., 2016 WL 936869, at *2 (citing In re T.M.P., 417 S.W.3d at 564).
The Waco Court of Appeals has held the remarriage of a parent who has been appointed a conservator can constitute a material change of circumstances. In re S.R.O., 143 S.W.3d 237, 244 (Tex. App.-Waco 2004, no pet.); In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.-Waco 2000, pet. denied). The evidence in this case showed that, after Mother moved to College Station, she and the children moved in with Benjamin, whom she later married and with whom she had a child.
In addition, "a course of conduct pursued by a managing conservator that hampers a child's opportunity to favorably associate with the other parent may suffice as grounds for" modifying the conservatorship. Arredondo v. Betancourt, 383 S.W.3d 730, 735 (Tex. App.- Houston [14th Dist.] 2012, no pet.) (citing In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex. App.-Amarillo 1996, no writ)). Father testified that Mother was training the children to call Benjamin "dad," that she was trying to replace him with Benjamin as the children's father, and that she was turning the children against him. Father also introduced documentary evidence that tended to support his testimony. Although Mother denied these accusations and offered a different explanation for the documents, the trial court could have believed Father's testimony, supported by the documentary evidence. In addition, Father testified that the children had begun keeping secrets and being untruthful, that there were dramatic changes in their demeanor, and that their interactions with Father and his family members had deteriorated.
Also, evidence that a party violated the court's order may support a finding of a material and substantial change of circumstances. See In re A.J.M., 2016 WL 936869, at *3. In this case, there was evidence that Mother had violated the Original Order when she removed the children from Harris County and the contiguous counties and established their primary residence in College Station without obtaining an order from the court or the written agreement of Father and without giving Father sixty days' notice before moving. As a result of that move, the children were required to change schools, and the trial court could have found that the disruption in the children's lives contributed to T.I. being held back a year in school. Mother moved the children to Navasota a few years later, and Father testified to several school-related disciplinary incidents involving T.I., a false accusation against a teacher by D.I., and homework issues involving D.I. that occurred after the move. The trial court could have reasonably inferred that the move to Navasota and the resulting change in schools contributed to those issues.
In her brief, Mother asserts that the modification was based solely on her move to College Station and Navasota and argues that Father did not object to her move to College Station and that it was arbitrary and unreasonable to find her move to Navasota was material and substantial. She also asserts that Father did not raise any other material and substantial changes at trial. As shown above, the record does not support Mother's assertions.
The evidence also showed that Father has resided in the same home for over fifteen years and that his mother, father, and younger sister resided with him. He had not remarried and had no other children. He had also worked for the same company for thirteen years and had flexible work hours. In addition, he had family support in raising the children.
Since some evidence of a substantive and probative character exists to support the trial court's decision, we find that the trial court did not abuse its discretion by finding that a material and substantial change had occurred sufficient to warrant its ordered modifications. We overrule Mother's issues challenging the trial court's finding that there was a material and substantial change of circumstances that warranted modifying the Original Order to appoint Father as the person who determined the children's primary residence and to give Father the exclusive right to make decisions concerning the children's education.
Unlike Section 153.502, Section 156.101 contains no factors that the court is to consider in determining whether there has been a material and substantial change of circumstances that justifies a modification to a conservatorship order or the terms and conditions of conservatorship or of the possession of or access to the child. TEX. FAM. CODE ANN. § 156.101(a). Rather, "[a] court's determination as to whether a material and substantial change of circumstances has occurred is not guided by rigid rules and is fact specific." Zeifman, 212 S.W.3d at 593 (citing In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.-Fort Worth 2003), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011)). In her brief, Mother argues that the trial court abused its discretion because the relief granted by the court was not sufficiently connected to the change in circumstances, citing Smith v. Karanja, 546 S.W.3d 734, 741 (Tex. App.- Houston [1st Dist.] 2018, no pet.), and Wiese v. Albakry, No. 03-14-00799-CV, 2016 WL 3136874, at *6 (Tex. App.-Austin June 1, 2016, no pet.) (mem. op.). However, both Karanja and Wiese involved issues questioning whether the changes of circumstances were relevant to international travel restrictions governed by Sections 153.501 through 153.503 of the Texas Family Code. Karanja, 546 S.W.3d at 736, n.2; Wiese, 2016 WL 3136874, at *6. Section 153.501 provides that, if evidence is presented that indicates there is "a potential risk of the international abduction of a child by a parent of the child, the court, . . . shall determine . . . whether it is necessary for the court to take one or more of the measures described in Section 153.501 to protect the child from abduction." TEX. FAM. CODE ANN. § 153.501(a). One of the factors the court is to consider in making this determination is "the risk of international abduction of the child by a parent of the child based on the court's evaluation of the risk factors described by Section 153.502." TEX. FAM. CODE ANN. § 153.501(b)(2). Section 153.502 sets forth specific factors that the court is to consider in determining the risk of international abduction of the child by one of its parents. TEX. FAM. CODE ANN. § 153.502. In Wiese, the trial court found that Albakry's obtaining permanent residency status in the United States was a material and substantial change and modified an international-travel restriction. Wiese, 2016 WL 3136874, at *6. The court of appeals held that, since Section 153.502 "expressly provides that a parent's residency status is not relevant to that analysis . . ., a change in a parent's residency status cannot serve as the basis for a finding that there has been a material and substantial change with respect to the imposition or modification of an international-travel restriction." Id. Likewise, in Karanja, the trial court's finding that there was a material and substantial change of circumstances because Karanja desired the child to travel internationally and to attend a memorial service was held not to be related to any of the factors set forth in Section 153.502, and therefore, the court of appeals held that it could not support a modification of international travel restrictions. See Karanja, 546 S.W.3d at 742; see also TEX. FAM. CODE ANN. § 153.502.
C. The Trial Court Did Not Abuse Its Discretion by Finding that the Modifications Are in the Best Interests of the Children
Mother also asserts in several issues that the trial court abused its discretion by finding that it was in the best interests of the children to modify the Original Order to appoint Father as the person who determined the children's primary residence and to give Father the exclusive right to make decisions concerning the children's education. Mother argues that there was insufficient evidence supporting the trial court's best-interest finding. We review the trial court's best-interest finding for an abuse of discretion, as set forth above. See In re A.J.M., 2016 WL 936869, at *4.
Mother also contends that the Original Order was "res judicata of the best interests of a minor child as to conditions then existing." Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969). However, res judicata is not applicable if there has been a showing of a material and substantial change of circumstances since the rendition of the order. See id.; see also TEX. FAM. CODE ANN. § 156.101(a)(1)(A). Mother contends that those kinds of modifications are only appropriate if the modification would be a positive improvement for the children and that Father had to demonstrate either that the prior order had become unworkable or that the modification would be a positive improvement for the children, citing Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). However, Lenz addressed a modification ordered under former Section 156.202, which required a showing that (1) "either the circumstances of the child or one or both of the conservators must have materially and substantially changed since the rendition of the order, or the order must have become unworkable or inappropriate under existing circumstances, and (2) the modification must be a positive improvement for . . . the child." Id. (citing former TEX. FAM. CODE ANN. § 156.202(1)-(2)); see Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 156.202, 1995 Tex. Gen. Laws 113, 174 (repealed 2001). As the Supreme Court noted, "The grounds for modification are now found in section 156.101, and no longer include the requirement of 'positive improvement.'" Lenz, 79 S.W.3d at 12 n.1. Section 156.101 also does not require a showing that the prior order has become unworkable.
"[T]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." In re D.L.N., 609 S.W.3d 237, 244 (Tex. App.-Texarkana 2020, no pet.) (quoting Matter of Marriage of Christensen, 570 S.W.3d 933, 938 (Tex. App.-Texarkana 2019, no pet.) (quoting TEX. FAM. CODE ANN. § 153.002)). "The trial court has wide latitude in determining what is in the best interest of the child." Id. (quoting Christensen, 570 S.W.3d at 938). "[T]hese types of cases are 'intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.'" Id. (quoting Christensen, 570 S.W.3d at 938 (quoting Lenz, 79 S.W.3d at 19)). The following non-exhaustive factors are considered in determining the best interest of a child:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individual seeking custody;
(5) the programs available to assist the individual to promote the best interest of the child;
(6) the plans for the child by the individual or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent, or potential conservator, that may indicate that the existing relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent or potential conservator.
In re A.J.M., 2016 WL 936869, at *3 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). Evidence of every factor need not be present. Id. Further, when there is conflicting evidence and there are considerations favoring both households, the trial court is accorded a large measure of discretion in determining a change of custody. Mumma v. Aguire, 364 S.W.2d 220, 222-23 (Tex. 1963). This is because the trial court is able "to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child." Id. at 223. We will discuss only the factors relevant to this case.
The trial court interviewed the children in its chambers. The court noted that, although it expected the children to favor Mother over Father based on the testimony at the hearing, that is not what it heard. Rather, the court commended both parents for the job they had done. Since the record does not show that the children expressed a desire to reside with one parent over the other, the first factor is neutral.
The evidence showed that both parents provided for the physical needs of the children and that they generally met their emotional needs. However, as noted above, the evidence showed that, after Mother moved the children to College Station, and then to Navasota, they began struggling in school and having discipline problems at school, and they began keeping secrets and being untruthful. Their demeanor and relational interaction with Father's family also 21 changed. In addition, there was evidence that Mother was slow to respond, or did not respond, to the children's problems at school. Based on this evidence, the trial court could reasonably find that the second and fourth factors tended to favor Father as both the primary caregiver of the children and the one to make educational decisions concerning the children.
In addition, the stability of the home favored Father, who still resided in the same house the children resided in before the divorce, maintained the same employment for over thirteen years, and had extended family members residing with him to help him care for the children. In addition, the evidence showed that, even though Father lived an hour and a half from the children's school in Navasota, he was more responsive to address problems that arose at the school than Mother.
Although Mother denied trying to turn the children against Father and trying to replace Father with Benjamin, the trial court could have reasonably believed Father's testimony and the documentary evidence that tended to support Father's allegations. The evidence also showed that Mother made decisions regarding the children's education and discipline without consulting Father even when Father specifically asked to be involved in those decisions so that their communications with the children would be consistent. Based on this evidence, the trial court could reasonably conclude that the eighth factor also favored Father.
Finally, another factor that the trial court could have reasonably concluded favored Father was Mother's violations of the trial court's order restricting the children's primary residence to Harris County and the surrounding counties and the accompanying notice provisions. The evidence showed that Mother moved to College Station without seeking the permission of the court of continuing jurisdiction or securing the written agreement of Father and that she misrepresented the reasons for her move to Father when she notified him of the move and moved in with her boyfriend. When she later moved to Navasota, Mother again ignored the existing trial court order and again did so without notifying Father until after the move. The trial court could have reasonably concluded that this indicated that Mother felt she could act on her own desires without consideration of the existing court order and that Mother, in all likelihood, would not obey the order in the future.
Because some evidence of a substantive and probative character exists to support the trial court's decision, we find that the trial court did not abuse its discretion by finding that it was in the best interests of the children that Father be appointed as the person who determined the children's primary residence and to give Father the exclusive right to make decisions concerning the children's education. We overrule Mother's issues challenging the trial court's best-interest findings.
D. Mother's Section 153.072 Complaint is Without Merit
Mother also asserts that the trial court's findings are insufficient under Section 153.072 of the Texas Family Code. Section 153.072 provides, "The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child." TEX. FAMILY CODE ANN. § 153.072. Mother complains that the trial court did not make a specific finding that limiting her right to participate in decisions concerning the children's education was in the best interest of the children. The record does not support Mother's complaint.
Mother asserts that Section 153.072 requires a specific finding of fact supporting such a limitation, citing Messier v. Messier, 389 S.W.3d 904, 910 (Tex. App.-Houston [14th Dist.] 2012, no pet.). However, the Messier opinion contains no such holding. Rather, the court in Messier held that there was no evidence to support a finding that certain restrictions on the mother's possession were in the best interests of the children. Id.
The Original Order granted Mother "the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children." Likewise, the Modification Order granted Mother the identical right. Consequently, the Modification Order did not change Mother's right to participate in decisions concerning the children's education.
Further, even if the Modification Order limited Mother's rights, a finding in a modification order that the trial court's orders are in the best interests of the children generally satisfies the requirements of Section 153.072. See In re J.C.R., No. 13-18-00491-CV, 2020 WL 3396603, at *5 n.4 (Tex. App.-Corpus Christi June 18, 2020, no pet.) (mem. op.); Amir-Sharif v. Tex. Dep't of Family &Protective Servs., No. 05-13-00958-CV, 2015 WL 4967239, at *5 (Tex. App.-Dallas Aug. 20, 2015, pet. denied) (mem. op.); In re C.A., No. 09-03-576 CV, 2004 WL 1699875, at *1 (Tex. App.-Beaumont July 29, 2004, pet. denied) (mem. op.). In this case, the Modification Order stated, "The Court finds that the following orders are in the best interest of the children." This satisfies the requirements of Section 153.072. Amir-Sharif, 2015 WL 4967239, at *5; In re C.A., 2004 WL 1699875, at *1.
For these reasons, we find that this complaint is without merit.
IV. Disposition
For the reasons stated, we affirm the trial court's order.