TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00716-CV
Ernestina Chavarria, Appellant
v.
Margarito Mike Rodriquez, Appellee
FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY NO. D120386AG, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING
MEMORANDUM OPINION
In this appeal arising from a petition to modify the parent-child relationship,
appellant Ernestina Chavarria challenges the trial court’s modification order appointing appellee
Margarito Mike Rodriquez joint managing conservator with the exclusive right to designate the
primary residence of the parties’ child, Stacy. 1 We affirm.
BACKGROUND
Chavarria gave birth to Stacy on May 23, 2012. In 2013, the trial court entered an
order establishing the parent-child relationship that established Rodriquez as Stacy’s father. The
2013 order appointed Rodriquez and Chavarria joint managing conservators and named
Chavarria joint managing conservator with the exclusive right to designate Stacy’s primary
residence. The 2013 order also granted Rodriquez unsupervised possession of Stacy under a
1 To protect the minor child’s privacy, we refer to her using a pseudonym. standard possession order and stated that the parties agreed to meet halfway between their
residences to exchange Stacy on all periods of possession. In addition, the 2013 order required
Rodriquez to pay child support and other costs such as for Stacy’s health insurance. After the
order was entered, Rodriquez married and lived with his wife in San Angelo, Texas, and
Chavarria moved several times within Texas.
In 2019, Rodriquez filed a petition to modify the parent-child relationship alleging
a material and substantial change of circumstances since the 2013 order and that modification
was in Stacy’s best interest because Chavarria had purportedly engaged in a history or pattern of
child neglect. In regard to modification, Rodriquez requested that he be named sole managing
conservator or that the parties be named joint managing conservators, that he be named the
conservator with the exclusive right to designate Stacy’s primary residence, and that he no longer
be required to pay child support to Chavarria. Rodriquez also requested temporary orders, a
temporary restraining order, an injunction, and a writ of attachment for possession of Stacy. In
support of his requests, Rodriquez attached an affidavit in which he attests that Stacy’s present
environment may endanger her physical health and significantly impair her emotional
development for the following reasons:
• Rodriquez met with Amber Gonzales, of the San Angelo office of Child and Protective Services, on September 5, 2019. During that meeting, Gonzales told Rodriquez that seven-year-old Stacy was found wandering near her home (Chavarria’s residence) in La Vernia, Texas on August 22, 2019, seeking help for Chavarria.
• Gonzales also told Rodriquez that Chavarria “had attempted suicide on August 22, 2019, but had a seizure,” and Stacy was aware that Chavarria had attempted suicide.
2 • CPS placed Stacy with a family friend while Chavarria was hospitalized because of this incident in August 2019, and did not notify Rodriquez.
• Rodriquez is concerned for Stacy’s safety because Stacy has been returned to Chavarria’s care. Chavarria did not deliver Stacy for scheduled visitation on September 6, 2019, and Chavarria did not answer her telephone. Chavarria also did not respond to Rodriquez’s text messages attempting to arrange visitation for the following weekend.
The trial court granted Rodriquez’s request for an attachment and temporary restraining order
and set a hearing to determine further temporary orders.
In response to Rodriquez’s petition, Chavarria filed an answer and counterpetition
to modify the parent-child relationship. Chavarria alleged a material and substantial change of
circumstances since the 2013 order and that modification was in Stacy’s best interest. Chavarria
requested that the trial court appoint her Stacy’s sole managing conservator with the exclusive
right to designate Stacy’s primary residence and deny Rodriquez access to Stacy. Chavarria also
requested temporary orders for Stacy’s safety and welfare and that the trial court increase the
amount Rodriquez was ordered to pay in child support.
The trial court subsequently entered agreed temporary orders directing that Stacy
would continue to live with Rodriquez in San Angelo until December 20, 2019, and after this
date Stacy would return to live with Chavarria as the custodial parent with the right to designate
the primary residence under the conditions of the 2013 order. Under the terms of the agreed
temporary orders, Rodriquez’s obligation to pay child support to Chavarria was abated until
January 1, 2020.
In 2022, the trial court held a final hearing on the competing motions to modify the
parent-child relationship, at which Rodriquez and his wife, Olivia Raymond-Rodriquez (Olivia)
3 testified, along with Chavarria and Stacy’s maternal grandmother, Alma Armendariz. After the
hearing, the trial court signed an order in a suit to modify the parent-child relationship that
appointed Rodriquez and Chavarria as joint managing conservators of Stacy and named
Rodriquez as the conservator with the exclusive right to designate Stacy’s primary residence and
the exclusive right to enroll Stacy in school. In the order, the trial court found that the material
allegations in Rodriquez’s petition to modify were true and that the requested modification was
in Stacy’s best interest. The trial court ordered Chavarria to deliver Stacy to Rodriquez on
August 18, 2022. The trial court ordered that Rodriquez’s child support obligation cease and that
Chavarria pay child support to Rodriquez. The order also specified that Chavarria was to have
unsupervised possession of Stacy under a standard possession order.
ANALYSIS
In her sole issue on appeal that we have divided into two sub-issues, Chavarria
challenges the trial court’s appointment of Rodriquez as joint managing conservator with the
exclusive right to designate Stacy’s primary residence. Chavarria complains that the trial court
abused its discretion in finding a material and substantial change in circumstances sufficient to
warrant a modification and in determining that the modification was in Stacy’s best interest
because the evidence was legally and factually insufficient as to both requirements. 2
2 Rodriquez did not file a response brief. See Tex. R. App. P. 44.1; Hamilton Metals, Inc. v. Global Metal Servs., Ltd., 597 S.W.3d 870, 878 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (instructing that if under applicable law and appellate record appellant has not shown that trial court erred, appellate court may not reverse trial court’s ruling even if appellee filed no brief). 4 Standard of Review
We review a trial court’s decision to modify conservatorship under an abuse of
discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); see Zeifman
v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied) (explaining that trial
court’s decision to modify conservatorship is reviewed under abuse-of-discretion standard).
Under this standard, “legal and factual sufficiency of the evidence are not independent grounds
for asserting error but are relevant factors in determining whether the trial court abused its
discretion.” Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.)
(citing Zeifman, 212 S.W.3d at 587). We first determine “whether the trial court had sufficient
information on which to exercise its discretion and, if so, whether the trial court erred in its
application of discretion.” Anastasi v. McHorse, No. 03-23-00274-CV, 2024 WL 968887, at *4
(Tex. App.—Austin Mar. 7, 2024, no pet.) (mem. op.) (quoting Zeifman, 212 S.W.3d at 588).
We consider only the evidence most favorable to the trial court’s ruling and will uphold its
judgment on any legal theory supported by the evidence. Coburn, 433 S.W.3d at 823 (citing
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)). A 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. Anastasi, 2024 WL 968887, at *4 (citing Zeifman, 212 S.W.3d at 587).
We are further 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.” Russell v. Schriber,
No. 03-22-00731-CV, 2024 WL 4713923, at *2 (Tex. App.—Austin Nov. 8, 2024, no pet. h.)
(mem. op.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009,
no pet.). Therefore, we defer to the trial court’s judgment in matters involving factual
5 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.)).
Material and Substantial Change to Support Modification
Chavarria argues in her first sub-issue that the evidence was legally and factually
insufficient to support the trial court’s finding that there had been a material and substantial
change in circumstances to support modification of the 2013 order establishing conservatorship
and possession and access. See Tex. Fam. Code § 156.101(a); Zeifman, 212 S.W.3d at 589. Her
live pleading at the time of the final hearing alleged that, with respect to modification of
conservatorship and possession and access, “[t]he circumstances of the child, a conservator, or
other party affected by the order to be modified have materially and substantially changed since
the date of rendition of the order to be modified.” See Tex. Fam. Code § 156.101(a). Chavarria
and Rodriquez sought different relief in their petitions to modify the parent-child relationship
with respect to conservatorship and possession and access; however, their modification claims
contained a common essential element. That is, “each required proof of ‘change of
circumstances.’” Russell, 2024 WL 4713923, at *3 (citing In re A.E.A., 406 S.W.3d 404, 410
(Tex. App.—Fort Worth 2013, no pet.). Chavarria’s allegation of a change in circumstances in
her counterpetition to modify constitutes a judicial admission of that same essential element in
Rodriquez’s claim for modification of the parent-child relationship even though the parties
did not request the same relief. Id. (citing In re A.E.A., 406 S.W.3d at 410); see Obernhoff
v. Nelson, No. 01-17-00816-CV, 2019 WL 4065017, at *20 (Tex. App.—Houston [1st Dist.]
Aug. 29, 2019, no pet.) (mem. op.) (“One party’s allegation of a change in circumstances of the
6 parties constitutes a judicial admission of the common element of ‘change of circumstances’ in
the other party’s similar pleading.”). Further, an admission in a trial court pleading constitutes a
judicial admission in the case in which the pleading was filed, requires no proof of the admitted
fact, and authorizes the introduction of no evidence to the contrary. Russell, 2024 WL 4713923,
at *3 (citing Obernhoff, 2019 WL 4065017, at *20; In re A.E.A., 406 S.W.3d at 410); see also
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (assertion of fact
in party’s pleading can constitute judicial admission that may substitute for evidence that has
“conclusive effect and bars the admitting party from later disputing the admitted fact.”).
Chavarria is therefore precluded from asserting on appeal that the evidence is
insufficient to support the trial court’s finding that there had been a material and substantial
change warranting modification of the conservatorship, possession and access provisions of the
2013 order. Russell, 2024 WL 4713923, at *3; see Filla v. Filla, No. 03-14-00502-CV,
2016 WL 4177236, at *5 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) (explaining
that allegation in pleading of material and substantial change constitutes judicial admission of
same element in opposing party’s claim for modification of prior order, and party that judicially
admitted element is barred from challenging sufficiency on appeal); In re A.E.A., 406 S.W.3d at
410–11 (because party judicially admitted change-of-circumstances element of other party’s
claim in petition to modify, party barred on appeal from challenging sufficiency to support
material and substantial change in circumstances). We overrule this portion of Chavarria’s issue.
Best Interest of Child
In Chavarria’s second sub-issue, she argues that the evidence is insufficient to
support the trial court’s finding that modifying the existing order and naming Rodriquez as the
7 joint managing conservator with the exclusive right to designate Stacy’s primary residence is in
Stacy’s best interest. Chavarria contends that the evidence shows that Rodriquez’s “actions were
a hinderance” to Stacy’s educational needs, while Chavarria helped Stacy with her schoolwork
and Stacy “consistently passed her classes” and was “consistently promoted at each grade level.”
Chavarria also argues that there is “no evidence” that she is not stable, although she “moved a
few times” to better her life.
The primary consideration in determining issues of conservatorship and
possession of and access to a child is always a child’s best interest. See Tex. Fam. Code
§ 153.002; In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2007). Trial courts generally have wide
latitude in determining what is in a child’s best interest, Gillespie, 644 S.W.2d at 451, and may
use a non-exhaustive list of factors to aid in the determination. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). The factors include: (1) the child’s desires; (2) the current and future
emotional and physical needs of the child; (3) the current and future emotional and physical
danger to the child; (4) the parental abilities of the parties seeking custody of the child;
(5) whether programs are available to assist those parties to promote the best interest of the child;
(6) the plans for the child by the parties seeking custody; (7) the stability of the proposed
placement; (8) the parent’s acts or omissions that may indicate that the parent-child relationship
is not proper; and (9) any excuses for the parent’s conduct. Id. These factors are not exhaustive,
and no single factor is controlling. See id. at 371; M.C. v. Texas Dep’t of Fam. & Protective
Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied). The factfinder is not
required to consider all of the factors, and the presence of a single factor may, in some instances,
be adequate to support a best-interest finding. M.C., 300 S.W.3d at 311. With these factors in
mind, we review the evidence in the record.
8 Rodriquez testified at the final hearing that, in September 2019, he learned that Stacy
was found wandering near Chavarria’s home in La Vernia on August 22, 2019, after Chavarria
purportedly attempted suicide. Rodriquez also testified that Stacy was placed with a friend’s
parent while Chavarria received medical attention for the incident. Rodriquez explained that he
filed for custody of Stacy so that Stacy would not have to endure the emotional distress of
ensuring that Chavarria is competent and mentally stable.
The 2013 order requires Rodriquez and Chavarria to meet halfway between their
residences to exchange custody of Stacy. Rodriquez testified that on more than five occasions
since December 2019, he had to drive the entire distance to Chavarria’s residence to exchange
custody of Stacy because Chavarria either was sick or did not have transportation. Rodriquez
stated that Chavarria had a stroke sometime after January 2020 and suffers from a medical
condition that causes her to have seizures, which he believes poses a danger to Stacy.
In his testimony, Rodriquez also explained that when Stacy came to live with him
in September 2019, she was not up to date on her shots, she needed glasses, and she had cavities
and needed teeth pulled. Stacy also needed prescription medication to treat asthma, a condition
that Chavarria never mentioned. He stated that since September 2019, he has arranged all of
Stacy’s medical, dental, and vision appointments. He provides Stacy’s medical insurance
through the Children’s Health Insurance Program (CHIP). Rodriquez does not believe that Stacy
takes her asthma medication properly when she is in Chavarria’s care because Stacy was
hospitalized due to an asthma attack in April 2021.
At the final hearing in August 2022, Rodriquez testified that Stacy had attended five
schools since January 2020 and had accrued thirty-six total school absences, twenty-three of
which were unexcused. Rodriquez also testified that in 2021 he received a “truancy letter” from
9 Floresville Elementary School stating that Stacy had twenty-six total absences. He explained
that Stacy failed the State of Texas Assessments of Academic Readiness (STAAR) standardized
test, and that Stacy performed below average in reading and math in school. According to
Rodriquez, Stacy’s failing the STAAR test is directly related to her poor school attendance.
Rodriquez testified that Stacy was currently in the fourth grade and that she has
learning disabilities in reading and math. He explained that Wall Elementary, the school that
Stacy attended when she lived with him, was catching Stacy up to her grade level in reading and
math skills and providing Stacy with the help that she needed. Rodriquez owns a home in the
Wall Independent School District and has worked for the same employer for eight years. He
testified that he ensures that Stacy completes her homework and that Stacy does not complete her
homework when she is with Chavarria.
The trial court also heard testimony from Rodriquez’s wife, Olivia, who explained
that she and Rodriquez had custody of Stacy from September through December 2019. Olivia
stated that she and Rodriquez scheduled an Admission, Review, and Dismissal (ARD) committee
meeting with Wall Elementary School to assess Stacy’s academic progress within three days of
Stacy coming to live with their family. Olivia stated that after they got Stacy into the appropriate
reading and math programs, Stacy loved school. Olivia stated that Stacy was on a better track to
finish her education when she was enrolled in Wall Independent School District because
Wall Elementary is a small school that can provide Stacy with individual attention. Olivia stated
that she and Rodriquez make better use of the tools that the school offers to help Stacy succeed
and address her learning disabilities than does Chavarria. Olivia testified that a child needs
routine, consistency, and scheduling, and that moving frequently handicaps a child’s education.
10 Finally, Chavarria testified at the hearing that, in August 2019, Stacy went to a
neighbor’s home to get help after Chavarria had a seizure, and Chavarria was hospitalized after
the incident. Chavarria also stated that she had a stroke in March 2021, and denied being
hospitalized for suicidal ideations.
Chavarria testified that she did not work and was not looking for work because
she was filing for Social Security disability. She explained that her disability is fibromyalgia
caused by a car accident for which she was not hospitalized, and also slipped discs in her back.
She was last employed for approximately a year and a half before trial. Chavarria testified that
she could not meet Rodriquez halfway between their residences to exchange Stacy, as the trial
court ordered, because she had a “neck injection,” she suffered a “mini stroke,” and “had
vertigo.” Chavarria also testified that she previously lived in a home that was mold-infested.
Chavarria testified that she is in a stable position because she has lived at her
mother’s house in Cedar Hill, Texas, for the last five months. Chavarria testified that Stacy is in
a stable position as well, although Stacy has been enrolled in four different schools in the last
two years and Chavarria lived at her prior two addresses for nearly two months each. Chavarria
also testified that Stacy “did excellent” in school and got good grades, and that it has not affected
Stacy to move from residence to residence and school to school within the same year. Chavarria
does not believe that Stacy is delayed academically each time Chavarria moves and Stacy
changes schools. Chavarria explained that, although Stacy has learning disabilities, she only
needs one Admission, Review, and Dismissal (ARD) committee meeting every three years, even
if she changed schools.
In sum, the trial court heard evidence from both parties about their abilities to
communicate, care for Stacy, and meet her educational, medical, and emotional needs. In
11 evaluating whether the trial court abused its discretion, we are mindful that we defer to the trial
court’s credibility determinations and do not substitute our judgment for that of the court.
Russell, 2024 WL 4713923, at *2; see Silverman v. Johnson, No. 03-08-00271-CV,
2009 WL 2902716, at *9 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem. op.) (observing that
it is factfinder’s role to resolve evidentiary conflicts and determine weight and credibility of
witnesses and that factfinder’s role “cannot be overstated” in custody disputes which are
intensely fact driven). Having reviewed the evidence under the appropriate standards, we
conclude that the record contains sufficient competent evidence to support the trial court’s
conclusion that it is in Stacy’s best interest to give Rodriquez, as joint managing conservator, the
right to determine Stacy’s primary residence and, on this record, we cannot conclude that the
trial court abused its discretion in doing so. We overrule Chavarria’s second sub-issue.
CONCLUSION
We affirm the trial court’s order.
__________________________________________ Maggie Ellis, Justice
Before Justices Triana, Crump, and Ellis
Affirmed
Filed: January 31, 2025