In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-18-00320-CV ________________________
HEATHER HAMILTON, APPELLANT
V.
ARTHUR MAESTAS, APPELLEE
On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2013-506,691; Honorable Ruben G. Reyes, Presiding
April 7, 2020
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Heather Hamilton, appeals from the trial court’s Order in Suit to Modify
Parent-Child Relationship rendered in favor of Appellee, Arthur Maestas. She presents
four issues asserting abuse of discretion by the trial court as follows: (1) in finding
sufficient evidence of a material and substantial change in circumstances to modify the
exclusive right to determine the children’s primary residence; (2) in determining there was sufficient evidence that modification of the exclusive right to determine the children’s
primary residence was in the best interests of the children; (3) in refusing to impose a
geographic restriction; and (4) in failing to grant her counter-petition to modify child
support. Maestas did not favor us with a brief. We affirm.
BACKGROUND
Hamilton and Maestas divorced on January 23, 2014. At that time, they were
appointed joint managing conservators of their two sons, who were two and four years
old. Hamilton was awarded the exclusive right to designate the children’s primary
residence and Maestas was ordered to pay $800 per month in child support. Maestas
was working as an EMT in a county other than the county where the children lived,
Hamilton was in school and working at a car wash, and the children were in daycare. In
February 2016, Hamilton quit her job due to a salary cut, filed for unemployment, and in
August 2016, she enrolled in cosmetology school.
That same year, Maestas remarried and had a child with his new wife. Maestas
has lived in the same house for over a decade. Since the divorce, he has changed jobs
and now was works as a foreman with Union Pacific Railroad. He earns a good salary
and has his family insured through his employment. His schedule requires him to work
out of town for eight days and be off for eight days. His wife works as a sales account
manager for Coca Cola and has a very flexible schedule that allows her to care for the
children when Maestas works out of town.
In September 2017, Maestas petitioned to modify the parent-child relationship
alleging a material and substantial change in circumstances and seeking (1) the exclusive
2 right to designate the children’s primary residence, (2) modification of the conditions for
access to or possession of the children, and (3) modification of previously ordered child
support should he be given the exclusive right to determine the children’s residence.
Maestas also alleged the modifications would be in the children’s best interests.
By counter-petition, Hamilton also sought modification of the possession and
access order contained in the divorce decree. Specifically, she requested that Maestas’s
possession correspond to his days off from work. She also requested the right of first
refusal when Maestas was unavailable for his periods of possession. Hamilton also
sought specific dates and times for Maestas to communicate with his children by
telephone and an increase in child support in accordance with the Family Code
guidelines. Finally, she sought injunctive relief that prohibited Maestas from using a
tracking device during her periods of possession.
Following a hearing, the trial court found Maestas’s allegations to be true and
granted his petition to modify conservatorship. The trial court ordered that both parents
remain as joint managing conservators but appointed Maestas as the parent with the
exclusive right to designate the children’s primary residence without regard to a
geographic location. Hamilton was ordered to pay Maestas $225 per month in child
support beginning June 1, 2018.
APPLICABLE LAW
Texas’s public policy assures that children have frequent and continuing contact
with parents who have shown the ability to act in the children’s best interests and it serves
to encourage parents to share in the duties and rights regarding raising their children after
3 divorce. TEX. FAM. CODE ANN. § 153.001(a)(1)(3) (West 2014). A trial court may modify
a prior conservatorship order if modification would be in the best interest of the child and
the circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since rendition of the prior order. TEX. FAM. CODE
ANN. § 156.101(a)(1)(A) (West 2014). The burden of proof by a movant seeking
modification of the parent-child relationship as well as a trial court’s findings on
modification of conservatorship shall be based on a preponderance of the evidence. TEX.
FAM. CODE ANN. § 105.005 (West 2014).1
STANDARD OF REVIEW
Findings in a conservatorship case are reviewed under the ordinary legal and
factual sufficiency standards.2 In re A.L.H., 515 S.W.3d 60, 80 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied). In reviewing evidence for legal sufficiency, we view the evidence
in the light most favorable to the finding, crediting favorable evidence if a reasonable fact
finder could, and disregarding contrary evidence unless a reasonable fact finder could
not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). A factual sufficiency
review requires us to examine the entire record and set aside a finding only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
1 Hamilton filed a Request for Findings of Fact and Conclusions of Law on August 6, 2018; however, her Notice of Past Due Findings of Fact and Conclusions of Law was not filed until September 24, 2018, making the past due notice untimely. See TEX. R. CIV. P. 297. In her brief, Hamilton asserts she filed her notice of past due findings on September 2, 2018, but the clerk’s file stamp and Certificate of Service both reflect September 24, 2018. Therefore, we presume the trial court made all implied findings necessary to support its order. Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 401 (Tex. 2016). 2 Essentially, a challenge to the sufficiency of the evidence in a family law matter is a component of an overarching abuse-of-discretion analysis. See Willett v. Rodriguez, No. 03-16-00084-CV, 2017 Tex. App. LEXIS 5096, at *6 n.11 (Tex. App.—Austin June 2, 2017), pet. denied, No. 17-0691, 2017 Tex. LEXIS 1085, at *1 (Tex. Dec. 1, 2017) (mem. op.). See also Bradshaw v. Bradshaw, 555 S.W.3d 539, 549 (Tex. 2018) (Devine, J. concurring) (noting that in family law cases, the abuse of discretion standard of review “overlaps with the traditional sufficiency-of-the-evidence standards of review”).
4 In re A.L.H., 515 S.W.3d at 80. The fact finder is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819.
In conducting our review, we may not substitute our judgment for that of the fact finder’s
even if we would reach a different answer on the same evidence. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert denied, 525 U.S. 1017, 119 S. Ct.
541, 142 L. Ed. 2d 450 (1998).
When a party fails to properly request findings of fact and conclusions of law, the
trial court is presumed to have made all findings of fact necessary to support its judgment,
and it must be affirmed on any legal theory that is supported by the evidence. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex.
App.—El Paso 2005, no pet.). When a reporter's record is filed, however, the implied
findings are not conclusive and may be challenged for legal and factual sufficiency of the
evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).
A trial court’s order modifying conservatorship is reviewed for abuse of discretion.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Nichol v. Nichol, No. 07-12-
00035-CV, 2014 Tex. App. LEXIS 492, at *7 (Tex. App.—Amarillo Jan. 15, 2014, no pet.)
(mem. op.). Absent a clear abuse of discretion, the trial court’s order modifying the prior
order will not be disturbed on appeal. In re M.S.F. & M.S.F., 383 S.W.3d 712, 715 (Tex.
App.—Amarillo 2012, no pet.)
In reviewing a trial court’s decision for abuse of discretion, we determine whether
the trial court acted without reference to any guiding rules and principles or, alternatively,
whether the trial court’s actions were arbitrary and unreasonable based on the
5 circumstances of the case. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28,
31 (Tex. 2010) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985)). The fact that a trial court may decide a matter within its discretion in a
different manner than an appellate court in a similar circumstance does not demonstrate
an abuse of discretion. Downer, 701 S.W.2d at 242.
ISSUE ONE—MATERIAL AND SUBSTANTIAL CHANGE
The existence of a material and substantial change in circumstances is a threshold
determination in a modification proceeding. In re A.L.E., 279 S.W.3d 424, 428 (Tex.
App.—Houston [14th Dist.] 2009, no pet.). The burden to establish a material and
substantial change in circumstances falls on the party seeking modification. Agraz v.
Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.). A material and
substantial change occurs when the party seeking modification demonstrates the
conditions that existed at the time of entry of the prior order have changed as compared
to the circumstances existing at the time of the modification hearing. Zeifman v. Michels,
212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied). However, there are no
guidelines as to what constitutes a material and substantial change in circumstances, and
each case must be determined according to the facts and circumstances of that particular
case. See In re N.R.T., 338 S.W.3d 667, 679 (Tex. App.—Amarillo 2011, no pet.).
In her counter-petition, Hamilton alleged “[t]he circumstances of the children, 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.” (Emphasis
added). An opposing party’s pleadings can constitute a judicial admission that may
substitute for evidence that has a “conclusive effect and bars the admitting party from
6 later disputing the admitted fact.” See Holy Cross Church of God in Christ v. Wolf, 44
S.W.3d 562, 568 (Tex. 2001); Gonzalez v. Sanchez, No. 07-16-00289-CV, 2018 Tex.
App. LEXIS 1467, at *7-8 (Tex. App.—Amarillo Feb. 23, 2018, no pet.) (mem. op.). A
judicial admission is a formal waiver of proof that dispenses with the production of
evidence on an issue and bars the admitting party from disputing it. See In re Guerrero,
465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Hamilton’s
allegation of a material and substantial change precludes her from asserting on appeal
that there were no material and substantial changes in circumstances since rendition of
the divorce decree. See In re R.A.W., No. 07-13-00316-CV, 2015 Tex. App. LEXIS 3039,
at *5 (Tex. App.—Amarillo March 27, 2015, no pet.) (mem. op.) (finding that mother had
judicially admitted an essential element of the father’s case for modification).
In addition to Hamilton’s judicial admission, changes did occur since the divorce
decree that individually and considered alone may not have been significant, but when
considered together, satisfy the statutory requirement for a material and substantial
change in circumstances. Maestas had remarried since the previous order. He and his
new wife had a child, and Maestas had changed jobs. See Arredondo v. Betancourt, 383
S.W.3d 730, 734-35 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (finding that marriage
of one of the parties may be a material and substantial change). See also In re J.A.R.,
02-04-123-CV, 2005 Tex. App. LEXIS 8912, at *22 (Tex. App.—Fort Worth Oct. 27, 2005,
no pet.) (mem. op.) (finding that remarriage and birth of a child may support a material
and substantial change). Although these factors alone may not have been sufficient to
find a material and substantial change, we cannot say that when considered together,
they did not constitute a material and substantial change. Based on the record before us
7 and Hamilton’s judicial admission that there have been material and substantial changes,3
we cannot say the trial court abused its discretion in finding material and substantial
changes in circumstances since rendition of its prior order. Issue one is overruled.
ISSUE TWO—BEST INTEREST REGARDING THE EXCLUSIVE RIGHT TO DESIGNATE THE CHILDREN’S PRIMARY RESIDENCE
A court’s primary consideration in determining conservatorship and possession of
and access to a child must always be the best interest of the child. TEX. FAM. CODE ANN.
§ 153.002 (West 2014). The Family Code does not list factors for a trial court to consider
in determining whether modification of custody is in a child’s best interest. However, the
factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), are helpful. Those
factors, which are not exhaustive, include (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
that may indicate that the existing parent-child relationship is not a proper one; and (9)
any excuse for the acts or omissions of the parent. Id. In the context of a custody
modification, other factors to consider include the child’s need for stability and the need
to prevent constant litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 343
(Tex. 2000).
3 Interestingly, in her argument under issue four by which she challenges the trial court’s child support order, she alleges “there is a material and substantial change.” Then, in the conclusion of her brief, she maintains “[t]here was no material and substantial change in circumstances.”
8 Here, the evidence established that both parents love their children and are
bonded with them. Neither parent is an inappropriate caregiver and neither presents a
danger to the children. There was no evidence to indicate that either of the parents’
homes were unsuitable or that the environment in which the children would be raised was
incompatible with their best interests.
At the time of the final hearing, the boys were six and eight years old. The older
son participates in gifted and talented classes. Maestas described him as “happy-go-
lucky,” loving, and a “rule-follower.” He suffers from allergies and asthma. Maestas
described his younger son as ornery, brilliant, and witty. He has a sensory issue that
sometimes causes him distress with the way his clothes fit. He also requires frequent
dental care due to serious tooth decay. Regarding his older son, Maestas testified to one
occasion when his son had been prescribed a ten-day antibiotic. When it was time for
the children to go to Maestas’s home, Maestas realized that Hamilton had not dispensed
the medication as prescribed.
Maestas testified that since the divorce, he has remarried, has another child, and
has changed jobs. He testified he was willing to change his work schedule to
accommodate periods of possession. He also testified that when he works out of town,
he communicates regularly with his children by telephone or Facetime. His wife’s
schedule is very flexible and she is able to maintain the children’s routine and
extracurricular activities when he is away working. He testified about various weekend
activities he and the children engage in such as fishing, camping, and sports. He planned
for the children to attend church camps in the summer.
9 Maestas testified that even when the children were young and in daycare, teachers
and former daycare staff reported issues with hygiene, ill-fitting clothes, inappropriate
apparel for cold weather, and sleeping during class. The younger child’s kindergarten
teacher testified that Maestas and his wife were very involved parents. Conversely, she
did not have much interaction with Hamilton
Maestas admitted that he had high expectations for his children. He felt it was
important that they have structure, routine, and discipline in their lives which he and his
wife can provide with more consistency than Hamilton. He described the children’s daily
routine after school as consisting of one hour to play and unwind, followed by required
reading and homework, if any. The family would then share dinner together, after which
the children bathed or showered, brushed their teeth, and went to bed. His wife
maintained the routine even when he worked out of town.
After Maestas remarried, issues arose concerning Hamilton’s belief that the new
wife wished to replace her as the mother of the children. The parents’ communications,
mostly by text, became strained and according to Hamilton, were not always appropriate.
She added her own mother to a group text with Maestas and his wife, which she claimed
softened the tone of the communications.
Although both parents claimed to have set bedtimes for the children, some of the
children’s teachers testified the children were extremely tired and sleepy on the mornings
after they had spent the night or the previous weekend with their mother. The teachers
noticed a difference and improvement in their work on the days after they had spent the
night or the previous weekend with Maestas and his wife. See In re A.B.O., No. 06-14-
10 00071-CV, 2015 Tex. App. LEXIS 4755, at *21 (Tex. App.—Texarkana May 12, 2015, no
pet.) (mem. op.) (considering the conservator’s involvement in the children’s education,
maintaining contact with school officials and counselor, and making sure children were
involved in extracurricular activities in determining conservatorship).
Maestas and his wife were very involved with the children’s education as well as
their extracurricular activities which included football and baseball. The evidence showed
that Maestas and his wife consistently attended practices as well as games. Hamilton
enrolled the children in karate but the children did not complete the program. Hamilton
has a daughter that is older than her sons. She is involved in cheer competitions and
Hamilton accompanies her to those competitions which usually occur out of town.
One witness who appeared for Maestas testified that her son and the parties’ older
son played football together. She recalled that one evening after practice and after all the
coaches and parents had left, the parties’ older son had not been picked up by his mother
and he appeared “a little shook up.” She offered to wait with him until someone came for
him. Eventually, an adult whom she did not recognize arrived to pick up the child. The
witness also testified that during baseball season, Hamilton attended the games but not
the practices, while it was “very rare” for Maestas and his wife to miss anything.
According to Hamilton, Maestas’s remarriage created hostility in co-parenting the
children. She admitted she was not as involved with the children’s school and teachers
because she herself was in school. She did modify her schedule to be more available
after she finished cosmetology school.
11 Hamilton’s mother testified that she and her husband help care for the children
when Hamilton is unavailable. She was cross-examined about some Facebook posts
that Hamilton posted showing photos and comments related to drinking habits. She did
not comment on the posts other than to say that Hamilton had consumed three beers at
the grandmother’s birthday party while the children were present.
During Hamilton’s testimony, she admitted the Facebook posts related to her
drinking habits had occurred since the divorce. Photos introduced into evidence over
objection showed her with Jell-O shots and photos with captions such as “downing shots”
and comments related to drunk texting. She denied having a drinking problem and
claimed that she never drank to a point that prevented her from caring for her children.
The record also contains evidence of trivial disputes between the parents that does
not directly affect the children and is more likely the result of Hamilton’s dislike of
Maestas’s wife. For instance, Hamilton complained that Maestas allowed his sister and
his wife to exercise his possessory rights if he was out of town working. However,
Hamilton likewise allowed her mother and stepfather to care for the children on many
occasions. The parties also argued over a watch that Maestas had given to one of the
children which Hamilton accused him of using to track her whereabouts.
Based on the evidence presented, we cannot say that the trial court abused its
discretion in finding that the children’s best interests were served by appointing Maestas
as the managing conservator with the exclusive right to determine their residence. Issue
two is overruled.
12 ISSUE THREE—FAILURE TO IMPOSE A RESIDENCY RESTRICTION
Section 153.134(b)(1) of the Family Code authorizes the trial court to establish “a
geographic area within which the conservator shall maintain the child’s primary residence”
or “specify that the conservator may determine the child’s primary residence without
regard to geographic location.” TEX. FAM. CODE ANN. § 153.134(b)(1) West 2014). The
Family Code does not, however, provide specific factors for a court to consider when
determining whether a geographic restriction is in the best interest of a child.
In the final decree of divorce that appointed Hamilton as the managing conservator
with the exclusive right to determine domicile, the trial court imposed a three-county
geographic restriction (Lubbock County, Hansford County, and Ochiltree County) for a
two-year period and thereafter the restriction was for the State of Texas. The three-county
restriction was due to Maestas’s employment at the time as an EMT in a county other
than where the children resided. In their live pleadings in the underlying modification
proceeding, neither party requested or even addressed a geographic restriction.
Several months after the trial on the merits, the parties reconvened to address the
contested matter of whether the trial court should include a geographic restriction in its
modification order. The trial court suggested that it was not required to consider or rule
on something that had not been pleaded by either party. The parties discussed whether
the trial court had a responsibility to determine whether to include a geographic restriction
or whether the issue was discretionary. The trial court gave the parties an opportunity to
brief the issue. Hamilton filed a brief in support of imposing a geographic restriction on
Maestas, should he be awarded the exclusive right to designate the primary residence of
the children. Her brief emphasized the public policy of Texas embodied in section
13 153.001(a) of the Family Code.4 She argued that section 153.134 of the Family Code
imposed responsibility on the trial court to address the issue of a geographic restriction.
Maestas did not submit a brief on the issue.
A week or so later, the trial court issued a letter ruling indicating that based on the
pleadings, evidence, and arguments of counsel, it would not be imposing a geographic
restriction on Maestas whom the trial court had already decided to appoint as the primary
managing conservator. In line with its letter ruling, the court’s final order specifies that
Maestas has the exclusive right to designate his children’s primary residence “without
regard to a geographic location.”
Hamilton urges that based on public policy considerations, the trial court had a
responsibility, whether pleaded for or not, to impose a residency restriction on Maestas’s
exclusive right to designate the children’s primary residence. We disagree. Section
153.134(b)(1)(B) of the Family Code specifically authorizes a trial court to specify that a
conservator “may determine the child’s primary residence without regard to geographic
location.” (Emphasis added). The trial court’s order specifies the statutory language that
Maestas has the exclusive right to designate the children’s primary residence “without
regard to a geographic location.” Whatever rationale the trial court may have expressed
for not including a geographic location is irrelevant. It had the authority and the discretion
under the statute to exclude a geographic location. Issue three is overruled.
4 Section 153.001(a) provides that the public policy of Texas is to “(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
14 ISSUE FOUR—MOTION TO MODIFY CHILD SUPPORT
In the final decree of divorce, the trial court ordered that Maestas pay Hamilton
$800 per month in child support. In the order being appealed, because Maestas was
appointed the conservator with the exclusive right to designate the children’s residence,
the trial court ordered that Hamilton pay Maestas $225 per month in child support
beginning June 1, 2018.
By her final issue, Hamilton does not challenge that portion of the court’s order
directing her to pay child support. Instead, relying on section 156.401 of the Family Code,
which provides the grounds for modification of child support, she argues that three years
have passed since the initial child support order and the current support she receives
differs from the statutory guidelines. TEX. FAM. CODE ANN. § 156.401(a)(2) (West 2014).
She argues that due to material and substantial changes in circumstances, she should
be receiving $1,000 per month instead of $800 from Maestas in child support.
Because the trial court’s new order extinguished Maestas’s obligation to pay
Hamilton any child support and because she does not challenge that portion of the new
order that she pay child support to him, her complaint about the amount of child support
Maestas should pay to her is thereby rendered moot. See TEX. R. APP. P. 38.1(a)(i).
Issue four is overruled.
15 CONCLUSION
The trial court’s Order in Suit to Modify Parent-Child Relationship is affirmed.
Patrick A. Pirtle Justice