in the Interest of T.L.S. and R.T.S., Children ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-238-CV
IN THE INTEREST OF T.L.S. AND
R.T.S., CHILDREN
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This appeal concerns a motion to modify the parent-child relationship
between Appellant Barbara,2 Appellee Philip, and their two children from their
prior marriage—T.L.S. and R.T.S. In her first, second, and third issues, Barbara
appeals the trial court’s modification of a geographical restriction contained in
1
… See Tex. R. App. P. 47.4.
2
… To protect the privacy of the parties involved in this appeal, we
identify the children by initials only and Appellant and Appellee by their first
names only. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008).
the parties’ agreed divorce decree. In her fourth and fifth issues, Barbara
appeals the trial court’s award of attorney’s fees to Philip. We reverse and
render in part and reverse and remand in part.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Barbara and Philip divorced in August 2004. The parties agreed in their
divorce decree that Barbara, as the custodial joint managing conservator for
their two children, would have the right to establish the primary residence for
the children “within [a] 30 mile radius of Mansfield, Tarrant County, Texas.”
Allegedly, in March 2007, Philip learned that Barbara intended to violate the
geographical restriction and relocate herself and the two children to Richardson,
Texas. Philip alleges that T.L.S.’s friend told him that Barbara intended to move
outside the geographical restriction so that their daughter could play on a
different softball team.
Philip filed an emergency motion to modify the parent-child relationship
and request for temporary restraining order on March 30, 2007. Barbara, in her
response, alleged that she had not “at this time” made any arrangements to
relocate her primary residence.
On May 8, 2007, Barbara filed a motion to clarify the geographical
restriction. She requested that the trial court find that the thirty-mile radius be
measured from any point fixed within the city limits of Mansfield, ostensibly so
2
that she could in fact move to areas within Richardson, Texas, without violating
the agreed to geographical area. The trial court held a hearing and ultimately
issued temporary orders restricting Barbara from moving the two children’s
primary residence from Mansfield.
Barbara also filed her own motion to modify asking the trial court to
modify and extend the geographical restriction to allow her the right to establish
the children’s primary residence to include Tarrant and contiguous counties.
Ultimately, Barbara proposed a parenting plan that asked the court to either
extend the geographical restriction to include Tarrant and contiguous counties,
or in the alternative, to leave the current thirty-mile restriction in place. The
trial court held a hearing concerning the cross-motions to modify on February
1, 2008.
The trial court had previously appointed Donna Kelly-Powell to counsel the
parties and their children. The court ordered that all parties attend a minimum
of five sessions.
At the February 1 hearing, Kelly-Powell testified that she saw the children
in individual sessions and saw Barbara and Philip in one individual session each.
Kelly-Powell said she then saw Barbara and Philip in one joint session. Kelly-
Powell stated that Barbara cancelled all future joint sessions alleging that, “I just
didn’t feel like that we accomplished anything.” Kelly-Powell continued to see
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the two children individually, and would discuss the children’s progress with
either Barbara or Philip, depending on who brought them. Kelly-Powell
eventually began to see R.T.S. more frequently than T.L.S. because, according
to Kelly-Powell, “he was the one who was having more difficulty.” Kelly-Powell
began to believe that R.T.S. might be suffering from a variety of problems
including: problems adapting to new situations, moderate anxiety,
inattentiveness, and mild to moderate problems associated with social and
study skills. Kelly-Powell eventually recommended that R.T.S. see psychologist
Dr. Daniel Lowrance.
Lowrance testified that although Kelly-Powell had wanted testing
regarding whether R.T.S. had attention-deficit hyperactivity disorder, bipolar
disorder, and other problems, his diagnosis was that R.T.S. actually suffered
from “agitated depression” that was situational and mostly due to his
relationship with his father and having to live in a two-bedroom apartment
where he was constantly in “close proximity to his sister.”
Both Barbara and Philip testified about why they believed that the
geographical restriction should be changed. Philip testified that he wanted the
geographical restriction to constrict to include only Mansfield,3 while Barbara
3
… Although Philip testified that he wanted the geographical restriction
constricted to include only Mansfield, in his first amended motion to modify the
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testified that although due to work and school she preferred the geographical
restriction to expand, she was fine with what the parties had originally agreed
to. At the close of the hearing, the trial court ordered that Barbara move into
a three-bedroom residence within thirty days and constricted the geographical
area so that Barbara could only establish the children’s primary residence to be
located within “Mansfield or the Arlington ISD.” Per Barbara’s request, the trial
court issued findings of fact and conclusions of law. The trial court specifically
found that “[it] is in the best interest of the children that [Barbara] have the
exclusive right to designate that the children’s primary residence [be] within the
geographical area of the Mansfield ISD or Arlington ISD.” This appeal followed.
III. D ISCUSSION
A. Modification of Previous Conservatorship Order
In her first, second, and third issues, Barbara argues that the trial court
abused its discretion in finding a material and substantial change in
circumstances to warrant modification of the residence restriction. We agree.
parent-child relationship, Philip requested that the court modify the geographical
restriction be limited to “Mansfield or the Arlington Independent School
District.”
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1. Standard of Review
We review a trial court’s order modifying conservatorship under an abuse
of discretion standard. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort
Worth 2002, pet. denied); see Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982). The trial court abuses its discretion if it acts arbitrarily and
unreasonably or without reference to any guiding principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert.
denied, 476 U.S. 1159, 106 S. Ct. 2279 (1986). Legal and factual sufficiency
of the evidence are not independent grounds of error, but relevant factors in
determining whether the trial court abused its discretion. In re T.D.C., 91
S.W.3d at 872; In re Marriage of Bertram, 981 S.W.2d 820, 822 (Tex.
App.—Texarkana 1998, no pet.).
In determining whether the trial court abused its discretion in modifying
conservatorship, we apply a two-pronged test: (1) whether the trial court had
sufficient information on which to exercise its discretion and (2) whether the
trial court erred in its application of discretion. In re T.D.C., 91 S.W.3d at 872.
That is, first we determine whether the evidence was legally and factually
sufficient for the trial court to support a decision on modification and, second,
whether the decision made was reasonable. Id. A clear failure by the trial
court to analyze or apply the law to the facts correctly is an abuse of discretion.
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In re M.N.G., 113 S.W.3d 27, 32 (Tex. App.—Fort Worth 2003, no pet.); see
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
In conducting a legal sufficiency, or “no evidence” review, we consider
the evidence in the light most favorable to the trial court’s judgment,
disregarding all evidence and inferences to the contrary unless a reasonable
factfinder could not do so. City of Keller v. Wilson, 168 S.W.3d 802, 810–11
(Tex. 2005). We do not disregard contrary evidence if (a) there is no favorable
evidence, or (b) contrary evidence renders supporting evidence incompetent, or
(c) contrary evidence conclusively establishes the opposite. City of Keller, 168
S.W.3d at 810–11. Anything more than a scintilla of probative evidence is
legally sufficient to support the trial court’s finding. In re T.D.C., 91 S.W.3d
at 872.
In determining whether the evidence was factually sufficient to support
the trial court’s judgment, we review the trial court’s findings under the same
standards used in reviewing jury answers. In re Z.B.P. & J.N.P., 109 S.W.3d
772, 776–77 (Tex. App.—Fort Worth 2003, no pet.). We consider all the
evidence and set aside the findings only if we find that they are so contrary to
the overwhelming weight of the evidence as to be clearly wrong and manifestly
unjust. Id.; see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
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2. Material and Substantial Change
In an effort to ensure stability and continuity for children, Texas law has
imposed “significant hurdles” before a conservatorship order may be modified.
Bates v. Tesar, 81 S.W.3d 411, 426 (Tex. App.—El Paso 2002, no pet.).
Specifically, a trial court may modify a conservatorship order only if “the
circumstances of the child, a conservator, or other party affected by the order
have materially and substantially changed” since the previous order and
modification would be in the child’s best interest. Tex. Fam. Code Ann.
§ 156.101 (Vernon 2008).
Under this scheme, the threshold question is whether a material and
substantial change of circumstances has occurred because the original decree
is res judicata of the children’s best interest. Watts v. Watts, 563 S.W.2d 314,
316 (Tex. Civ. App.—Dallas 1978, writ ref’d n.r.e.). Absent a material and
substantial change of circumstances, revisiting the prior determination of best
interest is inappropriate. In re M.N.G., 113 S.W.3d at 34. The burden is on
the moving party to show a material and substantial change in circumstances;
otherwise, the trial court must deny the motion. See Zeifman v. Michels, 212
S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied).
In deciding the material and substantial change of circumstances
question, a trial court is not confined to rigid or definite guidelines. In re Z.B.P.,
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109 S.W.3d at 779. Instead, the court’s determination is fact-specific and
must be made according to the circumstances as they arise. Zeifman, 212
S.W.3d at 593. But, by design, the evidence must show more than a simple
showing that a requested modification would be in the children’s best interest.
See Tex. Fam. Code Ann. § 156.101(1).
3. Evidence of Changed Circumstances
In this case, there are two distinct categories of evidence on which the
trial court could have relied to determine whether there had been a material and
substantial change: (1) the evidence of Barbara’s desire to move to Richardson,
and (2) the evidence of R.T.S.’s psychological condition.
a. Barbara’s Desire to Move
At the modification hearing, Philip testified that Barbara had relayed to
him that it was her intention to move as close to Richardson as she could under
the original divorce decree’s thirty-mile radius provision. Philip said that if
Barbara moved to the outer boundary of that restriction, his midweek visitations
would probably “become a traffic impossibility.” Philip further averred that he
had “trust issues” with Barbara regarding where she might move the children
within the thirty-mile restriction. He also testified that he would “like to know
exactly where” Barbara intended to move the children and that it was his
preference that the children stay “where they [would] be close to their father.”
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None of this testimony by Philip is evidence of a change of
circumstances. Philip may not have appreciated the difficulty he would
encounter by agreeing to the original geographical restriction, but that difficulty
would not be due to anything that happened after the divorce decree. The
possibility that Barbara would move to the outer boundary of the thirty-mile
restriction was contemplated at the time of the original agreement. None of
Philip’s testimony regarding possible difficulties in traveling within the thirty-
mile restriction could serve as sufficient evidence on which the trial court could
have exercised its discretion.
Other evidence of a potential change of circumstances in the record is the
allegation that Barbara intended to move to Richardson beyond the thirty-mile
radius. But the record clearly demonstrates that when Barbara did move, she
moved from her home in Mansfield to a two-bedroom apartment—in Mansfield.
Both of these locations were within the thirty-mile restriction. This testimony
also cannot serve as sufficient evidence on which the trial court could have
exercised its discretion.
Still regarding Barbara’s attempts to move, the only other evidence in the
record that would suggest that circumstances had changed was the testimony
of Kelly-Powell—the court-appointed counselor—who testified that she believed
R.T.S. would benefit from staying within the Mansfield ISD, more specifically
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in his current school. But this testimony, admittedly, was predicated on the
same perceived difficulties Philip testified to—that Barbara moving outside of
Mansfield “would [move the children] further away, that it would be more
difficult for [Philip] to be able to see them as often, and he would not be able
to be as involved in their lives.”
The trial court was obviously swayed by the testimony concerning the
difficulties Philip would face in traveling to the outer boundary of the original
thirty-mile restriction. The trial court stated that its decision to constrict the
original geographical restriction was because “a commute [of thirty miles] . . .
would interfere with [Philip’s] ability to have a relationship with his children.”
But the ultimate restriction imposed by the trial court was inconsistent with the
counselor’s request that R.T.S. be restricted to living in Mansfield. The trial
court’s imposed restriction was that the children not be moved from Mansfield
or Arlington. This is the exact restriction requested by Philip in his motion to
modify.
Thus, if the modification to the geographical restraint was predicated on
Kelly-Powell’s or Philip’s testimony regarding the difficulties encountered
traveling within the original agreed-to area, the trial court erred in exercising its
discretion. And if the modification was predicated on the counselor’s
testimony, the trial court arbitrarily conformed the restriction to Philip’s request,
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rather than Kelly-Powell’s testimony. Either way, based on this evidence, the
trial court acted arbitrarily and unreasonably and abused its discretion in
modifying the original geographical restriction.
b. Evidence of R.T.S.’s Emotional Problems
There is some evidence in the record that R.T.S. was experiencing
emotional difficulties, including anger toward his father and sister. Kelly-Powell
testified that R.T.S. would have difficulty changing to “another school . . .
because of his emotion and social difficulties.” [emphasis added] Kelly-Powell
attributed R.T.S.’s difficulties to having been “put in the center” of the
parents’s struggles. Kelly-Powell also testified that she had referred the parties
to a psychologist—Dr. Lowrance.
Lowrance testified that R.T.S.’s difficulties were “situational” and
stemmed mostly from R.T.S. having to live in a two-bedroom apartment where
he shared “one room for all of [his and his sister’s] things.” Lowrence testified
that there was nothing to indicate that R.T.S.’s difficulties required any special
care that R.T.S. could not receive from another school district of comparable
size to Mansfield. When asked if R.T.S. would have difficulty changing
schools, Lowrence stated, “[n]one that I’m aware of.” Lowrence also testified
that R.T.S. had expressed to him that he preferred to move to a different
school. When asked whether it was relevant that R.T.S. lived in “Mansfield . . .
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[or Fort] Worth . . . [or] Keller,” Lowrence replied, “It’s not the building that’s
causing the problem.” Ultimately, Lowrence testified that what would be most
helpful to R.T.S. would be “if [his] mother got where [R.T.S.] had his own
facility, his own room and some space.”
Assuming that the trial judge disregarded all of Lowrence’s testimony and
believed only Kelly-Powell, the modified geographical restriction is still
inconsistent with Kelly-Powell’s testimony, which recommended leaving R.T.S.
in his current school. The trial court’s ultimate restriction was that the children
not be moved from Mansfield or Arlington. Again, this is the exact restriction
requested by Philip. But the trial court was obviously swayed by Lowrence’s
testimony. The trial court imposed an order on Barbara that she “get a three-
bedroom where each child has their own room within 30 days.” The trial court
even chided Barbara for having moved to a “cramped apartment” and stated
that R.T.S.’s anger toward Philip was Barbara’s “fault” for not currently living
in a three-bedroom apartment.
The trial court determined, in its findings of fact, that it would be in the
best interest of the children to modify the previous geographical restriction by
constricting Barbara’s right to designate the children’s primary residence to
Mansfield ISD or Arlington ISD. There is simply no evidence to support this
modification. Thus, the trial court should not have exercised its discretion, and
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if it should have, it acted arbitrarily and unreasonably and abused its discretion
in modifying the original geographical restriction. We hold that the trial court
abused its discretion in modifying the original divorce decree’s geographical
restriction and sustain Barbara’s first, second, and third issues.
B. Attorney’s Fees
1. Attorney’s Fees for Appeal
In her fourth issue, Barbara asserts that there was no evidence concerning
attorney’s fees in case of an appeal to this court. Thus, Barbara argues, the
trial court abused its discretion in awarding them. We agree.
All of the evidence presented to the trial court concerning attorney’s fees
specifically concerned the time involved in preparation for the hearing on the
motion to modify. No evidence was presented regarding the amount of
attorney’s fees on appeal. Thus, the trial court abused its discretion by
awarding attorney’s fees to Philip for this appeal. See MacCallum v.
MacCallum, 801 S.W.2d 579, 587 (Tex. App.—Corpus Christi 1990, writ
denied) (holding that former wife was not entitled to attorney’s fees on former
husband’s appeal of his action seeking modification of child support and
visitation, where all evidence related to attorney’s fees specifically concerned
time involved in preparation for hearing on motion to modify, and no evidence
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was presented regarding amount of attorney’s fees on appeal). We sustain
Barbara’s fourth issue.
2. Attorney’s Fees Incurred Preparing for the Modification
In her fifth issue, Barbara argues that the trial court abused its discretion
by not showing good cause to award Philip attorney’s fees for the underlying
modification action. Because Barbara is the prevailing party on appeal
respecting the modification of the geographical restriction, we need not address
her fifth issue. See In re C.C.J., 244 S.W.3d 911, 924 (Tex. App.—Dallas
2008, no pet.). Rather, we remand the issue of attorney’s fees for the
underlying modification action to the trial court. Id.
IV. C ONCLUSION
Having sustained Barbara’s first, second, third, and fourth issues, we
reverse the portion of the trial court’s order granting modification of the
geographical restriction and render judgment that Philip’s proposed modification
of the geographical restriction is denied, and we reverse and render regarding
the trial court’s awarding to Philip attorney’s fees for appeal. Additionally, we
reverse the portion of the trial court’s order awarding the attorney’s fees
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pertaining to preparation of the modification to Philip and remand that issue to
the trial court for reconsideration in light of this opinion.
WILLIAM BRIGHAM
JUSTICE
PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: April 9, 2009
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