In the Interest of A.P.L. and T.D.L., Minor Children v. the State of Texas
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Opinion
Opinion issued August 21, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00725-CV ——————————— IN THE INTEREST OF A.P.L. AND T.D.L., MINOR CHILDREN
On Appeal from the 247th District Court Harris County, Texas Trial Court Case No. 2015-64508
***
———————————— NO. 01-23-00843-CV ——————————— IN RE L.L., Relator Original Proceeding on Petition for Writ of Mandamus Harris County, Texas Trial Court Case No. 2015-64508
OPINION
In this appeal from a final order modifying conservatorship of the parties’ two
children, Mother argues the trial court abused its discretion by granting Father’s
petition to be given the exclusive rights to designate the children’s primary residence
and make medical, mental-health, and education decisions for them. Mother also
challenges, in the appeal and in her related mandamus proceeding, the trial court’s
order requiring her to pay some of Father’s attorney’s fees under section 109.001 of
the Family Code. Because the attorney’s fee issue can be reviewed as part of the
appeal, we deny the mandamus petition. We affirm the trial court’s judgment.
I. Background
A. The parties divorce and agree to be joint managing conservators
Mother and Father divorced in 2017 under a mediated settlement agreement
that provided the terms for conservatorship and support of their minor children,
A.P.L. and T.L.1 The trial court signed an agreed final decree that contained the
1 We use initials to protect the children’s privacy. See TEX. FAM. CODE § 109.002(d). 2 parties’ agreements. Among other terms, the agreed final decree designated Mother
and Father as joint managing conservators of the children and ordered that:
• Mother have the exclusive right to designate the children’s primary residence.
• The children stay with Father on alternating weekends and at additional times around holidays and summer break.
• Mother, who is Christian, have the children on Christian holidays, and Father, who is Jewish, have the children on Jewish holidays.
• Mother and Father have joint rights to consent to (1) non-emergency medical, dental, and surgical treatment involving invasive procedures, and (2) mental-health treatment and evaluation of the children, provided that “no child shall be administered any stimulant or other psychotropic medication without the express written agreement of the other party or further order of the court.”
• Mother and Father have joint rights to make decisions concerning the children’s education.
• Father must pay monthly child support. The agreed final decree included tiebreaker provisions in the event of a
disagreement between Mother and Father about the children’s medical,
mental-health, or educational needs. For instance, if Mother and Father disagreed
about medical or mental-health treatments, the children’s pediatricians’
recommendation would prevail in most cases. The parties designated specialists for
certain medical conditions—namely, an endocrinologist for treatment of T.L.’s
pituitary dwarfism and an allergist for A.P.L.’s allergies, asthma, and eczema.
3 As for the children’s education, the agreed final decree allowed for their
continued enrollment at the private school they attended (“the Private School”). The
agreed final decree required the children to attend the Private School if either parent
“enrolls and pays,” which the decree defined as registering the child by the school’s
deadline, paying the tuition, and providing written notice to the other parent by a
certain date. If the children were not enrolled in the Private School, then they would
attend the public school zoned for Mother’s residence, unless Mother and Father
mutually agreed otherwise in advance.
B. Father petitions to modify the agreed final decree, and Mother counterpetitions A little more than three years after the divorce, Father petitioned to modify
the agreed final decree. He alleged that the parties’ circumstances had materially
and substantially changed and that Mother was engaging in alienating behavior and
disparaging him, his family, and his religion. Father asked the trial court to give him
exclusive rights to designate the children’s primary residence and make medical,
mental-health, and education decisions for them, eliminate his child-support
obligation, and grant Mother a standard possession order.
Mother filed a counterpetition in which she also alleged that the parties’
circumstances had materially and substantially changed. She asked the trial court to
maintain her right to designate the children’s primary residence and give her, not
Father, the exclusive right to make medical, mental-health, and education decisions.
4 Mother also asked the trial court to adjust the possession schedule and order the
children enrolled at the public schools zoned to her residence.
C. A trial shows inability to co-parent as the children’s needs changed and Father planned to remarry
During a ten-day bench trial, the parties offered testimonial evidence and
dozens of exhibits. Both sides presented evidence of the children’s medical,
mental-health, and educational needs, some of which predated the divorce and others
of which had developed since the divorce. The evidence showed that A.P.L. has
been treated for allergies and eczema since she was four, and that T.L. was diagnosed
by his endocrinologist with pituitary dwarfism at three and takes growth hormones
by injection six nights a week.
As the children grew older, these conditions evolved, and the co-parenting
relationship became strained. For example, A.P.L. struggled with anxiety, attention,
and focus at school. In August 2018, speech pathologist K. Musher evaluated A.P.L.
“to get a better understanding of her learning profile.” In her report, Musher noted
A.P.L. was having increasing difficulty in reading and math at school. The Private
School staff had expressed concern for whether A.P.L. could keep up as she
transitioned grades and recommended that she be evaluated to “identify any factors
which could be interfering with her learning” and “receive recommendations for
appropriate intervention.” The evaluation led Musher to conclude that A.P.L. had a
“specific learning disorder with impairment in reading.” She opined that other
5 factors also might be interfering with A.P.L.’s learning, including an
attention-deficit disorder or emotional factors related to family stress. Musher
recommended several intervention therapies, including specific therapies related to
reading comprehension, certain accommodations at school, and tutoring. She also
recommended a formal assessment in those areas if people working with A.P.L. felt
that “difficulty with attention and/or emotional factors [was] interfering with her
optimal learning, performance, and response to intervention.”
In August 2019, the Private School met with Father and Mother to recommend
that A.P.L. undergo a formal psychoeducational evaluation and provided a list of
psychologists.2 Mother and Father disagreed about how to handle this
recommendation. In correspondence with the Private School, Mother dismissed the
school’s concerns as inconsistent with A.P.L.’s academic performance and as being
a private family matter. She attributed A.P.L.’s anxiety to poor parenting by Father,
claiming that A.P.L.’s anxiety stemmed from not being “prepared [for] her
studies . . .
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued August 21, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00725-CV ——————————— IN THE INTEREST OF A.P.L. AND T.D.L., MINOR CHILDREN
On Appeal from the 247th District Court Harris County, Texas Trial Court Case No. 2015-64508
***
———————————— NO. 01-23-00843-CV ——————————— IN RE L.L., Relator Original Proceeding on Petition for Writ of Mandamus Harris County, Texas Trial Court Case No. 2015-64508
OPINION
In this appeal from a final order modifying conservatorship of the parties’ two
children, Mother argues the trial court abused its discretion by granting Father’s
petition to be given the exclusive rights to designate the children’s primary residence
and make medical, mental-health, and education decisions for them. Mother also
challenges, in the appeal and in her related mandamus proceeding, the trial court’s
order requiring her to pay some of Father’s attorney’s fees under section 109.001 of
the Family Code. Because the attorney’s fee issue can be reviewed as part of the
appeal, we deny the mandamus petition. We affirm the trial court’s judgment.
I. Background
A. The parties divorce and agree to be joint managing conservators
Mother and Father divorced in 2017 under a mediated settlement agreement
that provided the terms for conservatorship and support of their minor children,
A.P.L. and T.L.1 The trial court signed an agreed final decree that contained the
1 We use initials to protect the children’s privacy. See TEX. FAM. CODE § 109.002(d). 2 parties’ agreements. Among other terms, the agreed final decree designated Mother
and Father as joint managing conservators of the children and ordered that:
• Mother have the exclusive right to designate the children’s primary residence.
• The children stay with Father on alternating weekends and at additional times around holidays and summer break.
• Mother, who is Christian, have the children on Christian holidays, and Father, who is Jewish, have the children on Jewish holidays.
• Mother and Father have joint rights to consent to (1) non-emergency medical, dental, and surgical treatment involving invasive procedures, and (2) mental-health treatment and evaluation of the children, provided that “no child shall be administered any stimulant or other psychotropic medication without the express written agreement of the other party or further order of the court.”
• Mother and Father have joint rights to make decisions concerning the children’s education.
• Father must pay monthly child support. The agreed final decree included tiebreaker provisions in the event of a
disagreement between Mother and Father about the children’s medical,
mental-health, or educational needs. For instance, if Mother and Father disagreed
about medical or mental-health treatments, the children’s pediatricians’
recommendation would prevail in most cases. The parties designated specialists for
certain medical conditions—namely, an endocrinologist for treatment of T.L.’s
pituitary dwarfism and an allergist for A.P.L.’s allergies, asthma, and eczema.
3 As for the children’s education, the agreed final decree allowed for their
continued enrollment at the private school they attended (“the Private School”). The
agreed final decree required the children to attend the Private School if either parent
“enrolls and pays,” which the decree defined as registering the child by the school’s
deadline, paying the tuition, and providing written notice to the other parent by a
certain date. If the children were not enrolled in the Private School, then they would
attend the public school zoned for Mother’s residence, unless Mother and Father
mutually agreed otherwise in advance.
B. Father petitions to modify the agreed final decree, and Mother counterpetitions A little more than three years after the divorce, Father petitioned to modify
the agreed final decree. He alleged that the parties’ circumstances had materially
and substantially changed and that Mother was engaging in alienating behavior and
disparaging him, his family, and his religion. Father asked the trial court to give him
exclusive rights to designate the children’s primary residence and make medical,
mental-health, and education decisions for them, eliminate his child-support
obligation, and grant Mother a standard possession order.
Mother filed a counterpetition in which she also alleged that the parties’
circumstances had materially and substantially changed. She asked the trial court to
maintain her right to designate the children’s primary residence and give her, not
Father, the exclusive right to make medical, mental-health, and education decisions.
4 Mother also asked the trial court to adjust the possession schedule and order the
children enrolled at the public schools zoned to her residence.
C. A trial shows inability to co-parent as the children’s needs changed and Father planned to remarry
During a ten-day bench trial, the parties offered testimonial evidence and
dozens of exhibits. Both sides presented evidence of the children’s medical,
mental-health, and educational needs, some of which predated the divorce and others
of which had developed since the divorce. The evidence showed that A.P.L. has
been treated for allergies and eczema since she was four, and that T.L. was diagnosed
by his endocrinologist with pituitary dwarfism at three and takes growth hormones
by injection six nights a week.
As the children grew older, these conditions evolved, and the co-parenting
relationship became strained. For example, A.P.L. struggled with anxiety, attention,
and focus at school. In August 2018, speech pathologist K. Musher evaluated A.P.L.
“to get a better understanding of her learning profile.” In her report, Musher noted
A.P.L. was having increasing difficulty in reading and math at school. The Private
School staff had expressed concern for whether A.P.L. could keep up as she
transitioned grades and recommended that she be evaluated to “identify any factors
which could be interfering with her learning” and “receive recommendations for
appropriate intervention.” The evaluation led Musher to conclude that A.P.L. had a
“specific learning disorder with impairment in reading.” She opined that other
5 factors also might be interfering with A.P.L.’s learning, including an
attention-deficit disorder or emotional factors related to family stress. Musher
recommended several intervention therapies, including specific therapies related to
reading comprehension, certain accommodations at school, and tutoring. She also
recommended a formal assessment in those areas if people working with A.P.L. felt
that “difficulty with attention and/or emotional factors [was] interfering with her
optimal learning, performance, and response to intervention.”
In August 2019, the Private School met with Father and Mother to recommend
that A.P.L. undergo a formal psychoeducational evaluation and provided a list of
psychologists.2 Mother and Father disagreed about how to handle this
recommendation. In correspondence with the Private School, Mother dismissed the
school’s concerns as inconsistent with A.P.L.’s academic performance and as being
a private family matter. She attributed A.P.L.’s anxiety to poor parenting by Father,
claiming that A.P.L.’s anxiety stemmed from not being “prepared [for] her
studies . . . the next day after visiting her father.” Father, on the other hand,
approved of the school’s efforts and advice. He described Mother as “[a]bsolutely
2 A school counselor explained that a psychoeducational evaluation is a “complete evaluation of a child” that provides “information about their academic abilities, their IQ, behavioral, social, emotional, sort of a whole picture of the child”, along with recommendations “for school and at home so that everyone . . . on the student’s team can help put things in place to support the child.” She explained why the evaluation was important: “If a child is struggling it helps to clarify what’s going on. So it often provides a diagnosis.”
6 against” the professionals and “unappreciative” of their concern for A.P.L.3 In his
view, Mother obstructed the care A.P.L. needed.
A.P.L. was eventually tested and diagnosed with ADHD in 2021, about a year
and a half after the Private School suggested the testing. The neuropsychologist, Dr.
Raizner, expressed that A.P.L. “exhibits clinically significant attention problems and
was rated ‘at risk’ for hyperactivity and conduct problems.” The doctor’s report
recommended “an executive functioning specialist, classroom accommodations, and
consultation with [A.P.L.’s] pediatrician to determine whether she would be an
appropriate candidate for medical management of symptoms.”
Family strife continued over treatment for A.P.L.’s ADHD, with Father
supporting medication, and Mother opposing it in favor of education therapy and
tutors. A.P.L. had also expressed some reservations about medication. The
disagreement was submitted to A.P.L.’s pediatrician, Dr. Koush, who recommended
“both behavioral strategies for ADHD (including accommodations at school) and a
3 There was conflicting evidence on whether Mother’s approach toward the teachers and staff at the Private School risked A.P.L.’s continued attendance at the school. Mother claimed that after a meeting at the school to discuss A.P.L.’s needs, school personnel met with her separately to criticize Father for involving the school in family disputes. However, staff from the school disputed that characterization of the second meeting. In an email, they stated that Mother had mischaracterized the conversation, which was “about [Mother’s] inappropriate tone in emails and the difficulty [the Private School] had in scheduling the meeting [to discuss A.P.L.’s needs] with [Mother].” The email closed by requesting that Mother direct any further emails concerning A.P.L. or T.L. to the administrators, rather than the children’s individual teachers because of the “growing problem with communication.” 7 trial of medication.” Despite Dr. Koush’s recommendation, Mother and Father
continued to disagree about when A.P.L. should start medication, as well as where
and how often she should take it.
The parties had still not reached an agreement a few months later, when
A.P.L.’s behavioral problems worsened. By then, Father had filed his petition to
modify the agreed final decree, and with the support of the children’s amicus
attorney, obtained a trial court order for A.P.L. to begin a drug trial. The trial began
while A.P.L. was in Mother’s care, but when Mother emailed A.P.L.’s psychiatrist,
Dr. Katic, two days later with a lengthy list of symptoms A.P.L. was experiencing,
Dr. Katic recommended that Mother stop giving A.P.L. the medication and that the
parties find a different psychiatrist “who may be able to help A.P.L.” Father
expressed his belief that Mother had intentionally “sabotaged” the drug trial and
“brainwashed” A.P.L. into opposing the medication. To accommodate A.P.L.’s
needs, Mother and Father eventually made the decision to move A.P.L. to a less
rigorous, remedial school.
T.L. also had specific medical needs about which Mother and Father
disagreed. In August 2022, T.L. had not been formally diagnosed with any learning
disabilities but was showing indicators for dyslexia and dysgraphia. To provide T.L.
with accommodations at school, the Private School required an evaluation by a
psychologist. Dr. Koush recommended the same psychologist who had performed
8 A.P.L.’s evaluation, Dr. Raizner, but Dr. Raizner declined because of the pending
litigation. The parties’ disagreement over alternatives worsened, and Dr. Koush, the
pediatrician designated as a tiebreaker, declined any further involvement, making
her the third medical provider to decline further involvement. Dr. Koush explained
via email, “This issue has unfortunately become far too contentious for what should
be a simple decision. Legal has advised me not to comment further.” This delayed
T.L.’s evaluation.
Ultimately, T.L. was evaluated by Dr. Landis in December 2022, and she
diagnosed him with dysgraphia and a learning disorder with impairment in reading.
Dr. Landis recommended two hours of weekly educational therapy, which was less
than a previous recommendation of nine hours. Dr. Landis also believed that T.L.
had progressed beyond a previously recommended curriculum focused on decoding
words rather than reading comprehension, something Father claimed supported his
view that T.L. had outgrown aspects of his condition.
Similar issues arose regarding T.L.’s growth-hormone deficiency and the
injections he was prescribed to support his development until he reaches puberty.
According to Mother, Father disagreed with T.L.’s diagnosis and suggested
alternative treatments that were rejected by T.L.’s endocrinologist. Evidence
suggested that Mother sometimes gave T.L. extra doses to make up for the doses she
believed Father was not giving. But Father expressed at trial his agreement that it
9 was necessary to administer the growth hormone as prescribed. Father conceded
that he had occasionally missed a dose because T.L. was participating in social
activities and was embarrassed to receive an injection in front of others. He claimed
that any long gaps in administering the growth hormone were due to national
shortages or denial of insurance coverage for the injections, which were expensive.
Family strife was not limited to the children’s medical and mental-health
needs. The parties disagreed about where the children, particularly A.P.L., should
attend school, with both accusing the other of involving A.P.L. in the disagreement
and having inappropriate conversations with her regarding enrollment preferences.
Additionally, Father claimed at trial that Mother sometimes made it difficult for him
to exercise periods of possession with the children; had disparaged his Jewish faith,
disparaged his family, which included a new fiancée and her children from a prior
relationship; and threatened to impair his relationship with A.P.L. and T.L. A few
examples include that Mother involved the children in negotiations with Father over
possession schedules and included A.P.L. in a disagreement with Father about
discipline and extracurricular activities. There was also evidence that Mother has
called Father a “low life” and an “incompetent parent,” and “flipped [him] off” in
front of T.L.
For her part, Mother offered explanations for the claimed interference with
Father’s parenting and testified that she was the parent who encouraged a positive
10 relationship between the children and Father. She also offered evidence that she had
primary responsibility for selecting the children’s doctors, taking them to
appointments, and obtaining diagnosis and treatment for their medical conditions,
whereas Father had little involvement in the children’s medical treatment.
A.P.L. and T.L. were interviewed by the trial court under oath. T.L., who was
ten at the time, told the trial court everything at home was “good.” He did not
identify anything he wished to change about either parent’s home, which he
described as being mostly the same. T.L. admitted that he did not like “spending a
lot of time” with Father’s fiancée even though she was “nice.” A.P.L., then fourteen,
expressed a preference to live with Father. A.P.L. explained that while she loved
both parents, Mother sometimes made her feel bad about herself, and A.P.L. could
be “more like a teenager” at Father’s house. A.P.L. was aware of the parental
conflict. Asked if she could remember a time when her parents got along, she
answered: “Nope. Never. They can never agree on anything.”
In closing arguments, the court-appointed amicus attorney acknowledged that
the children’s needs had substantially changed and that the “severe” parental conflict
had reached the point at which the provisions in the agreed final decree no longer
made sense. The parental conflict had “trickled into” the children’s medical
appointments and evaluations, causing more than one of the professionals designated
as a tiebreaker to withdraw from that role. After recognizing the “close, loving
11 relationships” between each child and both parents and both parents’ good
intentions, the amicus attorney opined that it would be in the children’s best interest
for Mother to retain the exclusive right to designate the children’s primary residence
and be given the exclusive right to make their medical, mental-health, and education
decisions.
D. The trial court modifies the agreed final decree to give Father exclusive rights After considering the evidence and arguments of counsel, the trial court
signed a rendition and, three months later, a modified order granting Father the
exclusive rights to designate the children’s primary residence and, with prior written
notice to Mother, make medical, mental-health, and education decisions for them.
The trial court also terminated Father’s child support obligation and granted Mother
a standard possession order.
The trial court issued findings of fact and conclusions of law in support of its
ruling, including findings under section 156.101 of the Family Code that the
circumstances of Mother, Father, “and/or” the children had materially and
substantially changed and that it was in the children’s best interest for Father to have
the exclusive rights to designate their primary residence, consent to medical
procedures and mental-health care, designate the children’s schools, and make
decisions regarding their education. The trial court further found:
12 6. The parents have become unable to co-parent to promote the children’s best interests; 7. The tiebreaker terms of the [agreed final decree] became ineffective either because a designated tiebreaker declined to decide an issue, refused to work with the high-conflict parents, or because one or more of the parties involved additional professionals besides those listed in the order;
8. The parties are unlikely to reach agreements about any issue that has a significant effect on the children’s health and welfare, and therefore it is in the child’s best interest for one parent to be primarily in charge of all such decisions; 9. [Mother] has exposed the children to hostility directed at [Father]; [and]
10.[Mother] has attempted to minimize or thwart the children’s contact with [Father.] ... 12.The relationship between [Mother] and [Father] is a high-conflict relationship, especially in the context of making medical, psychiatric/psychological, and educational decisions for the children. This difficulty is primarily prompted by [Mother’s] disruptive and combative conduct, which is inconsistent with good co-parenting. 13.[Father] is the parent who is most likely to encourage a positive relationship with the other parent. [Father] has demonstrated a desire, willingness, and ability to engage in proper communication and cooperation with [Mother] regarding these decisions, which is consistent with good co-parenting. 14.[Father] has demonstrated the ability to make medical, psychiatric/psychological, educational, and other decisions for the children that are in their best interest. [Mother] has failed to demonstrate the ability to make medical, psychiatric/psychological, educational, and other decisions for the children that are in their best interest.
13 Although Mother requested additional findings on how each modification was
connected to the changed circumstances and why it was in the children’s best
interest, the trial court made none.
E. Mother asks the trial court to abate the modification order pending her appeal
Mother filed an emergency motion to abate and suspend the modification
order under section 109.001 of the Family Code. See TEX. FAM. CODE § 109.001(a)
(authorizing trial court to “make any order necessary to preserve and protect the
safety and welfare of the child during the pendency of an appeal as the court may
deem necessary and equitable”). The motion stated Mother’s intention to appeal the
modification order and requested that her rights to make decisions about the
children’s medical and educational care be restored during the appeal. She alleged
that, since the rendition, Father had not met the children’s medical and educational
needs in several respects, including by not obtaining and administering T.L.’s
growth hormone, not arranging for T.L. to receive educational therapy, and not
arranging for A.P.L. to receive executive functioning tutoring. Mother also claimed
Father had enrolled A.P.L. at a high school that was not A.P.L.’s preferred school
and was “far away from her friends” and “cherished extracurricular activities.” In a
supplement to the motion, Mother also requested that the trial court award her
reasonable and necessary attorney’s fees and expenses she incurred in bringing the
motion to abate.
14 Father opposed Mother’s motion and asked the trial court to order Mother to
pay his attorney’s fees. Under section 109.001, Father claimed that an award of fees
was necessary to the children’s safety and welfare during the pendency of the appeal
because he is “the parent with primary responsibility” for the children and has
“insufficient resources” to pay the fees for defending against Mother’s emergency
motion and appeal. Alternatively, Father requested fees “as monetary sanctions for
filing the emergency motion.”
The trial court held an evidentiary hearing, after which it denied Mother’s
motion. Relying on section 109.001, the trial court awarded Father $103,006 in
attorney’s fees for responding to Mother’s emergency motion and an additional
$173,250 in conditional appellate fees.
II. Standard of Review
Mother challenges the trial court’s final order modifying conservatorship of
the children and temporary order awarding Father attorney’s fees. We review both
orders for an abuse of discretion and will set them aside only if the trial court acted
arbitrarily or unreasonably or failed to analyze or apply the law correctly. Smith v.
Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.)
(modification order is reviewed for abuse of discretion); In re Wiese, No.
03-15-00062-CV, 2015 WL 4907030, at *1 (Tex. App.—Austin Aug. 12, 2015, orig.
15 proceeding) (mem. op.) (temporary order for fees under section 109.001 is reviewed
for abuse of discretion).
In family-law cases, the traditional sufficiency standards of review overlap
with the abuse-of-discretion standard. This means insufficiency of the evidence is
not an independent ground for reversal but an order that is not supported by sufficient
evidence may constitute an abuse of discretion. In re J.J.G., 540 S.W.3d 44, 55
(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting that legal and factual
insufficiency are relevant factors in assessing whether the trial court abused its
discretion); Zeifman v. Michels, 212 S.W.3d 582, 587–88 (Tex. App.—Austin 2006,
pet. denied) (same). To determine whether a trial court abused its discretion because
the evidence does not support its decision, we consider whether the trial court (1)
had sufficient information upon which to exercise its discretion and (2) erred in
applying its discretion. Zeifman, 212 S.W.3d at 588.
The first question is answered by the well-established standards for legal and
factual sufficiency. Evidence is legally sufficient if there is “more than a mere
scintilla” to support a vital fact finding, that is, “the evidence rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.”
Mehta v. Mehta, No. 23-0507, __ S.W.3d __, 2025 WL 1733267, at *3 (Tex. June
20, 2025) (quotation omitted). We consider the evidence in the light most favorable
to the finding, indulging every reasonable inference that supports it. Id. But in a
16 factual-sufficiency review, we examine all the evidence in a neutral light and
consider whether the trial court’s decision is so against the great weight and
preponderance of the evidence as to be clearly wrong and manifestly unjust. See
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).
As the factfinder, the trial court is the sole judge of the witnesses’ credibility
and the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d
802, 819 (Tex. 2005) (“[Trial courts] may choose to believe one witness and
disbelieve another. Reviewing courts cannot impose their own opinions to the
contrary.”). When there is conflicting evidence, we must presume the trial court
resolved any inconsistences in favor of the order if a reasonable person could do so.
Id. at 821; see also Ceniseros v. Rychlik, No. 03-17-00532-CV, 2018 WL 4265679,
at *3 (Tex. App.—Austin Sept. 7, 2018, no pet.) (mem. op.) (explaining the trial
court can best “observe the demeanor and personalities of the witnesses
and . . . ‘feel’ the forces, powers, and influences that cannot be discerned by merely
reading the record” (internal quotation omitted)).
In answering the second question—whether the trial court erred in applying
its discretion—we consider whether the trial court made a reasonable decision based
on the evidence. Zeifman, 212 S.W.3d at 588. Or stated inversely, we determine
whether there is some basis for concluding that the trial court’s decision was neither
arbitrary nor unreasonable. Id.
17 To the extent our review involves questions of statutory construction, those
are questions of law we review de novo. See ExxonMobil Pipeline Co. v. Coleman,
512 S.W.3d 895, 899 (Tex. 2017).
III. Modification of Conservatorship
The law gives every parent a bundle of rights that includes, among others,
rights to designate a child’s primary residence, consent to medical and mental-health
care, and make decisions about the child’s education. See TEX. FAM. CODE
§ 151.001(a)(1), (6), (10). In the first three issues of her appeal, Mother contends
the trial court abused its discretion by modifying the agreed final decree to designate
Father as the parent with the exclusive right to exercise these rights for several
reasons, including that:
• there was no change to “the children’s welfare” that warranted her removal as the parent with the right to designate the children’s primary residence;
• the only justification the trial court gave for the modifications—parental conflict—does not suffice because she and Father had always disagreed and the final decree designated tiebreakers for resolving disagreements;
• the trial court should have tried “less disruptive modifications,” such as amending the tiebreaker provisions or awarding exclusive decision-making rights to Mother; and
• the modifications are not in the children’s best interests. Mother also argues that the trial court’s fact findings are deficient because
they do not specify the reasons for the modifications.
18 A. General law on modification
The best interest of the child is always the primary consideration in issues of
conservatorship and possession of and access to the child. See TEX. FAM. CODE
§ 153.002. Relevant here, a court can modify the terms of conservatorship,
possession, or access if the movant shows (1) modification is “in the best interest of
the child” and (2) “the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially changed” since the earlier of
rendition of the order or the signing of the mediated settlement agreement on which
the order is based. TEX. FAM. CODE § 156.101(a)(1).
The question of a material and substantial change concerns “all aspects of a
child’s physical, mental, emotional and moral well-being.” Snider v. Grey, 688
S.W.2d 602, 606–07 (Tex. App.—Corpus Christi-Edinburg 1985, writ dism’d). The
requested modification must be “somehow connected to the changed circumstance.”
Smith, 546 S.W.3d at 741. But the determination of a material and substantial
change is not confined by rigid guidelines; instead, it is fact specific. In re A.L.E.,
279 S.W.3d 424, 428–29 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[T]he
law does not prescribe any particular method for a showing of changed
circumstances, which may be established by circumstantial evidence.”).
The person seeking the modification must show the circumstances as they
existed when the prior order was signed. Nalley v. Quevedo, No. 01-20-00400-CV,
19 2022 WL 1547780, at *8 (Tex. App.—Houston [1st Dist.] May 17, 2022, no pet.)
(mem. op.). “Without both historical and current evidence of the relevant
circumstances, ‘the court has nothing to compare and cannot determine whether a
change has occurred.’” Nellis v. Haynie, 596 S.W.3d 920, 926 (Tex. App.—Houston
[1st Dist.] 2020, no pet.) (quoting Ziefman, 212 S.W.3d at 594 n.1).
To review the best interest of the child, we rely on what are known as the
Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The
non-exhaustive factors 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 individuals
seeking custody, (5) the programs available to assist these individuals to promote
the best interest of the child, (6) the plans for the child by the individuals seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent which 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.
The trial court is not required to consider every factor, and although no single one is
controlling, a single factor may, in some instances, be sufficient to support a
best-interest finding. Ceniseros, 2018 WL 4265679, at *5.
20 B. Modification of the right to designate the children’s primary residence
Mother contends the trial court was “wholly unjustified” in modifying the
agreed final decree to give Father the exclusive right to designate the children’s
primary residence. She asserts there is no evidence of “abuse, violence, drugs,
alcohol, endangerment, mistreatment, poisoning the children’s mind,” no evidence
of “any negative circumstance with respect to the children’s welfare,” no evidence
of a “change in [her] home surroundings,” and no evidence that she “became an
improper parent to exercise custody, like refusing to care for the children.”
We agree with Mother that there is no evidence she abused the children, was
violent, exposed the children to drugs or alcohol, allowed them to go hungry, or
engaged in any parental misconduct of that type. Evidence of such parental
misconduct would be relevant in a modification proceeding, but it is not required.
As noted, the law does not prescribe any particular method of showing changed
circumstances.4 See, e.g., In re R.R.K., No. 02-20-00302-CV, 2022 WL 1257136, at
*5 (Tex. App.—Fort Worth Apr. 28, 2022, no pet.) (mem. op.). And other events
4 Similarly, to the extent Mother argues the trial court must make a finding that retaining her as the primary conservator would be injurious to the children, we disagree. Earlier versions of the Family Code required showings that a modification would be a positive improvement for the child and that retention of the current conservator would be injurious, but the current version of the Family Code does not. See In re J.J.L., No. 04-12-00038-CV, 2012 WL 3985798, at *1 (Tex. App.—San Antonio Sept. 12, 2012, no pet.) (mem. op.). In the current version, the overriding “best interest of the child” standard takes into consideration whether a modification is appropriate. See id.; see also TEX. FAM. CODE § 156.101.
21 may indicate a material and substantial change, such as the evolving needs of a child,
one parent impeding the other’s ability to participate in joint decisions for the child,
and one parent attempting to impair or interfere with a child’s relationship with the
other parent. See id. at *8–10; Arrendondo v. Betancourt, 383 S.W.3d 730, 734–35
(Tex. App.—Houston [14th Dist.] 2012, no pet.); Randle v. Randle, 700 S.W.2d 314,
316 (Tex. App.—Houston [1st Dist.] 1985, no writ).
There is no real dispute that A.P.L.’s and T.L.’s needs changed after the
divorce, as they got older. Although aging alone does not show changed
circumstances, developing needs may. See Randle, 700 S.W.2d at 316 (recognizing
that a child’s needs may change with age and justify modification of conservatorship
and that modification may bring stability for the child). Mother agreed at trial that
a “host” of evolving issues exists on the educational and medical front for both
children, as well as psychological and behavioral issues for A.P.L.
For example, after the agreed final decree was signed, A.P.L. increasingly
struggled with anxiety, focus, and behavior at school, was moved from a more
rigorous academic program to a remedial school, and now requires specific
interventions for ADHD. The record includes several examples of A.P.L.’s
behavioral issues, including disregarding teacher instructions, acting out during
class, making social-media posts both parents deemed inappropriate, and taking
22 suggestive photographs.5 Additionally, there is evidence that T.L.’s needs related to
his growth-hormone treatment and learning disabilities were evolving as he matured.
Mother asserts that the evidence of the children’s evolving needs goes
exclusively to a different parental right—the right to make medical, mental-health,
and education decisions—and cannot be the basis for eliminating her right to
designate the children’s primary residence. In support, she again cites Smith, which
held that a modification lifting all restrictions on international travel could not be
based solely on a mother’s desire for the child to attend a single funeral overseas.
See 546 S.W.3d at 742. But Smith allows modifications that are “somehow
connected to the changed circumstance.” See id. at 741–42.
There is a connection here, considering evidence that Mother sometimes
impaired Father’s ability to be informed about and contribute to decision-making
regarding the children’s physical health. Father testified that he offered to share in
the responsibility for making and taking the children to doctor’s appointments
because that was part of being involved in the children’s lives. Although he asked
Mother to notify him when the children had doctor’s appointments so that he had the
option to attend, she rarely did so in advance. And sometimes, he found out about
the appointments only after the fact. In his words, “When I don’t know before
5 Any suggestive photographs were not available as evidence at trial because Mother deleted them. Father testified he had not seen them. Mother also required A.P.L. to delete the problematic social-media posts. 23 something happens, I can’t be there.” Father also testified that Mother sometimes
acted unilaterally regarding the children’s medications—namely, that she stopped
giving A.P.L. asthma medication without consulting him, which he believed caused
A.P.L. to have an asthma attack, and gave T.L. extra doses of the growth hormone
without consulting Father about whether he had given the medication.6
The record also includes several examples of Mother disparaging Father in
correspondence with the children’s care providers, such as referring to Father as a
“heavy manipulator” in correspondence with Dr. Koush, suggesting to T.L.’s
endocrinologist that Father was not keeping up with the growth-hormone injections
and instead only giving “a shot on occasion, just to say to others that he gave him
growth hormone,” and claiming in emails with the Private School that Father was
seeking meetings to discuss A.P.L.’s needs as “legal maneuvers” to improve his
position for litigation.
Much of this evidence was disputed, with Mother presenting evidence that
Father had not actually made any effort to make medical appointments for the
children, was disinterested in attending appointments, and was the real obstacle to
the children’s wellbeing. But it was the trial court’s responsibility to resolve
conflicts in the evidence, and it could believe Father over Mother in doing so. See
6 Father admitted that A.P.L.’s asthma is “not as significant” now as it was around the time of the attack, and she no longer takes the asthma medication. 24 City of Keller, 168 S.W.3d at 819. And this Court has recognized similar conduct
as being relevant to a modification in the right to designate a child’s primary
residence. See Epps v. Deboise, 537 S.W.3d 238, 246–47 (Tex. App.—Houston [1st
Dist.] 2017, no pet.) (in considering finding of “material and substantial change,”
evidence of mother’s interference with parental relationship impacting joint
decision-making on medical and psychological care through failures to notify father
of doctor’s visits and impairing his ability to be informed supported changing parent
with right to designate primary residence).
There is also evidence that Mother’s conduct interfered with Father’s
relationship with the children. See Champenoy v. Champenoy, No.
01-12-00668-CV, 2013 WL 3327328, at *4 (Tex. App.—Houston [1st Dist.] June
27, 2013, no pet.) (mem. op.) (“A course of conduct by one parent that hamper’s a
child’s opportunity to associate favorably with the other parent may suffice as
grounds for re-designating managing conservators.”). For example, there is
evidence that Mother involved the children in disagreements about possession
periods, discipline, and educational decisions, and questioned the children about the
time they spent with Father. There is evidence that Mother made it difficult for the
children to communicate with Father by confiscating phones he provided. And there
is evidence Mother deprived Father of time with the children by not being honest
about a tutor’s availability to see A.P.L. at times other than during Father’s
25 possession period, by directing tutoring to run long so that A.P.L. was late to softball
games and practices Father coached, and by scheduling activities like dance class
for A.P.L. during Father’s time without his consent. Father testified that for the two
years after the agreed final decree, Mother vacationed in Alabama with the children
on Father’s Day, even though the holiday was his to spend with the children and the
decree required Mother to transfer possession of the children at her Texas home. He
explained that, for one year, he traveled to Alabama to spend Father’s Day there, and
for another year, he flew to Alabama to retrieve T.L. Additionally, there is evidence
that Mother allowed her negative feelings toward Father to spill into view of the
children when she shot Father “the finger in front of T.L.” and slammed a car door.
Such conduct interfering with or impairing Father’s relationship with the
children supports modification of the right to designate the child’s primary
residence. See In re J.W.H., No. 14-09-00143-CV, 2010 WL 1541679, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 20, 2010, no pet.) (mem .op.) (in considering
finding of “material and substantial change,” evidence of mother’s interference with
visitation rights and communication constituted “behavior hamper[ing] the
children’s opportunities to favorably associate with” father and supported changing
conservator with right to designate primary residence).
Again, much of this evidence was disputed, with Mother offering alternative
explanations. But the trial court was free to disbelieve her. See City of Keller, 168
26 S.W.3d at 819. As this case demonstrates, conservatorship decisions are intensely
fact driven and, oftentimes, difficult. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002).
The evidence was hotly contested, with the parties clashing over nearly all matters
of fact. Under the abuse-of-discretion standard, it is not our role to reconcile
disputed facts. We must defer to the factfinder who observed the witnesses’
demeanor and was in the best position to make credibility determinations. See In re
A.L.E., 279 S.W.3d at 427. A trial court does not abuse its discretion when, as here,
it bases its decision on conflicting evidence of a substantive and probative character.
See Townsend v. Vasquez, 569 S.W.3d 796, 808 (Tex. App.—Houston [1st Dist.]
2018, pet. denied). While the evidence was not one-sided, it is sufficient to support
the trial court’s finding of a material and substantial change warranting modification
of the right to designate the children’s primary residence. Mother’s evidence was
not so overwhelming as to make the trial court’s decision against the great weight
and preponderance of the evidence, clearly wrong, or manifestly unjust. See
Francis, 46 S.W.3d at 242.
We overrule that part of Mother’s first issue challenging the material and
substantial change element of the modification of the right to designate the primary
residence of the children.7
7 The evidence discussed above also supports the trial court’s more specific findings that Mother and Father had “become unable to co-parent”; the tiebreakers “became ineffective”; Mother had “exposed the children to hostility directed at [Father]” and 27 C. Modification of the right to make medical, mental-health, and education decisions Within her first issue, Mother also contends Father failed to prove a material
and substantial change required him to have exclusive decision-making rights as to
the children’s medical, mental-health, and educational needs. More specifically, she
asserts that Father failed to offer evidence of more than mere parental conflict and
disagreement over the children’s medical, mental-health, and educational needs,
which is insufficient to modify the agreed final decree.
But here, Father did not have to prove changed circumstances in connection
with these rights, because both he and Mother asserted in their respective pleadings
that a material and substantial change in the parties’ circumstances required
modification of their previous agreement on medical, mental-health, and education
decisions. See Hill v. Steinberger, 827 S.W.2d 58, 61 (Tex. App.—Houston [1st
Dist.] 1992, no writ) (“A judicial admission is conclusive on the party making it, and
it relieves the opposing party’s burden of proving the admitted fact[] and bars the
“attempted to minimize or thwart the children’s contact with [him]”; Mother and Father’s relationship was “high-conflict, especially in the context of making medical, psychiatric/psychological, and educational decisions for the children,” and the “difficulty is primarily prompted by [Mother’s] disruptive and combative conduct, which is inconsistent with good parenting”; and Father is “the parent most likely to encourage a positive relationship with the other parent,” has “demonstrated a desire, willingness, and ability to engage in proper communication and cooperation with [Mother] regarding these decisions, which is consistent with good co-parenting,” and “has demonstrated the ability” to make these decisions as in the children’s best interest, while Mother has not. 28 admitting party from disputing it.”). These mutual allegations are judicial
admissions of a material and substantial change with respect to the rights they both
sought to modify. See, e.g., Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236,
at *4 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) (“If an appellant
filed her own petition to modify in the trial court and alleged a material and
substantial change in circumstances, her allegation constitutes a judicial admission
that a material and substantial change occurred.”); Burns v. Burns, 434 S.W.3d 223,
228 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (assertions in pleadings can
constitute judicial admissions).
Mother points to section 156.007 of the Family Code, asserting it prevents her
counterpetition from being a judicial admission of any fact. Section 156.007
provides:
A party who files a motion to modify an order . . . based on a material and substantial change of circumstances may not be considered on that basis alone to have admitted a material and substantial change of circumstances regarding any other matter.
TEX. FAM. CODE § 156.007.8 We conclude the statute does not bar judicial
admissions of changed circumstances with respect to the specific rights a party seeks
to modify.
8 This provision applies to motions to modify filed on or after September 1, 2021. See Act of June 4, 2021, 87th Leg., R.S., ch. 227, § 2–4, 2021 Tex. Sess. Law Serv. 506, 506. Mother’s counterpetition filed on September 27, 2021, is subject to section 156.007. 29 Our primary objective in statutory interpretation is to ascertain and give effect
to legislative intent. Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015).
“We seek that intent first and foremost in the plain meaning of the text.” Id. Section
156.007’s plain language distinguishes between what is pleaded and what is not
through its instruction that a motion based on changed circumstances “may not be
considered on that basis alone to have admitted a material and substantial change of
circumstance regarding any other matter.” TEX. FAM. CODE § 156.007 (emphasis
added). Affording “other” its common meaning as “not the same,” the statute
protects a party from judicially admitting changed circumstances only as to “other”
rights they do not seek to modify. See, e.g., Other, MERRIAM-WEBSTER.COM,
https://www.merriam-webster.com/dictionary/other.
This construction of the statute is consistent with the pre-enactment law,
which the Legislature is presumed to know, recognizing that when a party pleads
changed circumstances as to one aspect of the parent-child relationship, there is no
admission of changed circumstances as to wholly different aspects. For example, in
Epps, a mother’s allegation of changed circumstances related to visitation and child
support was not a judicial admission of changed circumstances related to the child’s
primary residence. 537 S.W.3d at 245–46; see also In re J.C.J., No.
05-14-01449-CV, 2016 WL 345942, at *6 (Tex. App.—Dallas Jan. 28, 2016, no
30 pet.) (mem. op.) (allegation of material and substantial change for visitation was not
a judicial admission of material and substantial change for child support).
Relying on section 156.007’s plain language and the Epps precedent, we hold
Mother judicially admitted changed circumstances in connection with the right to
make medical, mental-health, and education decisions for the children, because she
sought to modify that right herself based on a material and substantial change.
However, she did not judicially admit changed circumstances regarding the right to
designate the children’s primary residence, because she did not seek to modify that
right.
Mother’s judicial admission disposes of her sufficiency-based complaint
about the trial court’s finding of a material and substantial change related to medical,
mental-health, and education decisions, but even if it did not, we do not agree that
the tiebreaker provisions in the agreed final decree compel a different conclusion.
The crux of Mother’s complaint is less about the evidence of changed circumstances
regarding the children’s medical, mental-health, and educational needs—as noted,
the trial revealed a host of evolving issues on the educational and medical front for
both children as well as behavioral issues for A.P.L.—and more about the trial
court’s appointment of Father as the exclusive decisionmaker. She argues the
evidence of the children’s evolving needs and parental conflict over how to handle
those circumstances cannot support making Father the exclusive decisionmaker,
31 because the parties had disagreed before the divorce, anticipated more disagreement
in the future, and thus included tiebreakers in the final decree.
In support, Mother cites this Court’s statement in Smith that, “[i]f a
circumstance was sufficiently contemplated at the time of an original agreement, its
eventuality is not a changed circumstance, but instead an anticipated circumstance
that cannot be evidence of a material or substantial change of circumstances.” 546
S.W.3d at 740. There, our Court held a mother’s desire to visit family in Kenya did
not justify the trial court’s modification allowing her to renew the child’s passport
because the parties knew before the divorce that the mother would eventually want
to travel abroad with the child yet did not address it in their decree. Id. In other
words, the desire to travel existed both at the time of divorce and during the
modification proceedings and thus was not a change of circumstance. Id.
Smith is distinguishable. Unlike here, there was no judicial admission of
changed circumstances as to the parental right at issue. It is true that Mother and
Father’s agreement to include tiebreaker provisions in the agreed final decree is
evidence that they knew conflict over the children’s medical, mental-health, and
educational needs could arise after their divorce. What is different, however, is the
undisputed evidence that the tiebreaking provisions failed in the time between the
agreed final decree and the modification proceedings. Mother and Father both
recognized at trial that the tiebreakers were not working, and so did the amicus
32 attorney. And more than one of the tie-breaking doctors declined to break ties or
continue with care for the children because of Mother’s and Father’s acrimony.
Mother agreed in her trial testimony that “any tiebreakers that [were] built into the
decree should be thrown out the window, because they failed miserably.”
We do not find support for Mother’s contention that the trial court had to try
something less disruptive, like modifying the tiebreaker provisions, before giving
Father the exclusive right to make medical, mental-health, and education decisions.
When the evidence shows that the parties are having trouble effectively
co-parenting, communicating, or reaching shared decisions, a trial court generally is
justified in selecting one parent as the exclusive decisionmaker to avoid conflict if
doing so is in the child’s best interest, which is a question we address below. See,
e.g., Coburn v. Moreland, 433 S.W.3d 809, 828 (Tex. App.—Austin 2014, no pet.)
(where parties had ongoing conflicts about child’s educational needs and activities,
court did not abuse its discretion in selecting one parent as exclusive decisionmaker).
We overrule that part of Mother’s first issue challenging the material and
substantial change element of the modification of the right to make medical,
mental-health, and education decisions.
D. Best interests of the children
The trial court retains broad discretion in crafting the rights and duties of each
conservator to promote the children’s best interests. See Lenz, 79 S.W.3d at 19–20;
33 Swaab v. Swaab, 282 S.W.3d 519, 532 (Tex. App.—Houston [14th Dist.] 2008, pet.
dism’d w.o.j.). The record evidence (even if conflicting) supports the trial court’s
decision that giving Father exclusive rights to designate the children’s primary
residence and to make medical, mental-health, and education decisions, and
reducing Mother’s time with the children, was in the children’s best interests.
It is clear both parents love the children, and the children love both parents.
As noted, there is no evidence of parental misconduct such as abuse, violence, or
neglect in either home. But it is undisputed that Mother and Father have been unable
to co-parent.9 Each party blamed the other for the conflict. And the trial court heard
overwhelming evidence of the parties’ dislike for one another and opposing views
on custody and possession, as well as their difficulties working together and with
care professionals to address the children’s individual needs, avoid making personal
attacks, and not interfere with the other’s relationship or time with the children.
Given this evidence, we cannot conclude the trial court abused its discretion in
selecting one parent as the exclusive decisionmaker to avoid further conflict and
provide a measure of stability for important decisions about the children’s medical,
mental-health, and educational needs. See Coburn, 433 S.W.3d at 827–28. Based
on the evidence, the trial court could reasonably conclude that it was in the children’s
9 The trial court’s finding that “[t]he parties are unlikely to reach agreements about any issue that has a significant effect on the children’s health and welfare” is unchallenged. 34 best interests for Father to be the decisionmaker as to these needs, as well as the
parent with the right to designate the children’s primary residence.
Mother contends that in ordering that the children live with Father, the trial
court ignored T.L.’s preference to stay with her. T.L. told the trial court everything
at home with Mother was “good” and admitted that he did not like “spending a lot
of time” with Father’s fiancée. But Mother’s argument overlooks A.P.L.’s
preference. She told the trial court that she wanted to live with Father in part because
of how Mother made her feel. A.P.L. explained that Mother sometimes made her
feel bad about herself, giving as one example Mother’s comment during a doctor’s
office visit about A.P.L. “gaining weight.” A.P.L. suggested that her negative
feelings about Mother’s comment contributed to weight loss of six pounds the next
week. Asked if she would want to simply flip the possession schedule to see Mother
as much as she was seeing Father, A.P.L. responded: “I want to have more time with
my dad.” It was within the trial court’s discretion to weigh both children’s
statements in making its conservatorship decisions. See City of Keller, 168 S.W.3d
at 819; see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (“The trial
court is given wide latitude in determining the best interests of a minor child.”).
Regarding the children’s welfare needs and the parents’ ability to meet those
needs, there is no doubt Mother was engaged with the children’s care providers and
attended more doctor’s and therapeutic appointments with the children than Father.
35 But there is some evidence that Mother prioritized her negative relationship with
Father in a way that contributed to lapses in the children’s medical and educational
care. For instance, there is evidence that Mother’s opposition to Father’s and the
Private School’s efforts to have A.P.L. undergo a psychoeducational evaluation
contributed to a delay of more than a year in diagnosing A.P.L. with ADHD, which
in turn made early intervention more difficult despite its importance and the impact
on A.P.L.’s quality of life. After the trial court ordered a medicine trial for A.P.L.,
Mother contacted Dr. Katic about stopping the trial on the second day, listing a
variety of negative symptoms A.P.L. was experiencing and then recorded A.P.L.
leaving a voicemail for Dr. Katic expressing the same symptoms. In response, Dr.
Katic suggested not continuing the medication and, instead of considering
alternative treatments, recommended that A.P.L. find a different psychiatrist.10
Based on this evidence, the trial court reasonably could have inferred that Mother
did not participate in good faith in the medication trial or that she delayed A.P.L.’s
access to treatment for her ADHD.
Even though it is conflicting, there is some evidence that Father accepted each
child’s diagnosis, supported medical and educational recommendations, and was
10 Other evidence suggested that Mother also refused to work cooperatively with Father to promptly address some of the at-risk behavior she observed from A.P.L. Although she complained that A.P.L. was making inappropriate social-media posts at Father’s house, Mother waited until litigation began to provide Father copies of the videos. 36 more willing to engage in proper communication about the children’s needs,
consistent with appropriate co-parenting. And at trial, Father showed himself
capable of recognizing Mother’s importance in the children’s lives, testifying that
Mother “means well,” “does good by the children,” and “wants the best.” In
contrast, Mother expressed her belief that she is more important to the children than
Father and was unconcerned during trial that she had not made any positive
statements about Father. Email and text messages between the parties further
suggest that Mother has called Father a “low life,” “an incompetent parent,” and
suggested he talk to his doctor about “his meds.” From this testimony, the trial court
could reasonably conclude that Father was better able to support a positive
co-parenting relationship in the future.
On this record, keeping in mind that the trial court was the sole decider of
witness demeanor and credibility, and under the highly deferential standard of
review applied in modification cases, we cannot conclude that the trial court abused
its discretion when it concluded, as between the parents, that Father would be better
suited to address the children’s unique needs and to create a positive co-parenting
dynamic, and that it was in the children’s best interests to give him the exclusive
rights to designate the children’s primary residence and make medical,
We overrule Mother’s second issue.
37 E. Additional fact findings
In connection with her complaints about the modification order, Mother
argues in her third issue that the trial court’s fact findings were deficient because
they were not specific enough. In particular, she asserts the trial court was required
to make specific findings explaining how each modification was connected to the
changed circumstances and in the children’s best interests.
In a bench trial, “any party may request the court to state in writing its findings
of fact and conclusions of law.” TEX. R. CIV. P. 296. If a party deems the court’s
findings and conclusions deficient in some respect, she may request “specified
additional or amended findings or conclusions.” TEX. R. CIV. P. 298. However, a
trial court is required to make findings only on ultimate or controlling issues.
Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ
denied). The ultimate or controlling issues in a modification proceeding are the best
interest of the child and whether the circumstances have materially and substantially
changed. See TEX. FAM. CODE § 156.101; In re B.W.S., No. 05-15-01207-CV, 2016
WL 7163866, at *5 (Tex. App.—Dallas Nov. 23, 2016, no pet.) (mem. op.). The
trial court made those and more findings here. Among other things, the trial court
found that “the circumstances of [Mother, Father, and the children had] materially
and substantially changed since the date” of the agreed final decree; that Mother and
Father had “become unable to co-parent to promote the children’s best interest”; that
38 the tiebreaker terms of the prior order [had] become ineffective”; that Mother
“exposed the children to hostility directed at” Father; that Mother “attempted to
minimize or thwart the children’s contact with” Father; that the relationship between
Mother and Father was “high-conflict . . . especially in the context of making
medical, psychiatric/psychological, and educational decisions” and that such
“difficulty [was] primarily prompted by [Mother’s] disruptive and combative
conduct, which was inconsistent with good co-parenting”; that Father was the parent
most likely to encourage a positive relationship with the other parent . . . consistent
with good co-parenting” and had “demonstrated an ability to make medical,
psychiatric/psychological, educational and other decisions for the children” that
were in the children’s best interests; and that it was in the best interest of the children
for Father to have the exclusive right to designate the children’s primary residence
and to make medical, psychiatric/psychological, and educational decisions.
The additional findings Mother requested “do no more than request
explanations of the court’s ruling in the case,” and thus were not required. See
Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex. App.—Houston [1st Dist.]
1985, writ ref’d n.r.e.); see also Stuckey Diamonds, Inc. v. Harris Cnty. Appraisal
Dist., 93 S.W.3d 212, 213 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
(“Additional findings and conclusions are not required if they are merely
39 evidentiary, or aimed at tying down the court’s reasoning rather than its
conclusions.”).
We overrule Mother’s third issue.
IV. Attorney’s Fees
Section 109.001 of the Family Code provides the trial court discretion to make
“any order necessary to preserve and protect the safety and welfare” of the children
during an appeal in a suit affecting the parent-child relationship, including orders
requiring payment of reasonable and necessary attorney’s fees. TEX. FAM. CODE
§ 109.001(a)(5). Under this authority, the trial court entered a temporary order
requiring Mother to pay Father’s attorney’s fees—$103,006 for responding to her
post-trial emergency motion and $173,250 in conditional appellate fees—after
finding it was necessary and equitable to do so. In her petition for writ of mandamus
and appeal from the final modification order, Mother argues the temporary order is
(1) void because the trial court issued it prematurely, outside of a fixed, sixty-day
jurisdictional window, (2) void to the extent it awards fees the statute does not
authorize, and (3) not supported by evidence.
A. The temporary order is reviewable on appeal
There is a threshold question of whether Mother’s mandamus or appeal is the
appropriate vehicle to challenge the temporary order on attorney’s fees. Section
109.001(c) provides that “[a] temporary order rendered under this section is not
40 subject to interlocutory appeal.” TEX. FAM. CODE § 109.001(c). Although there was
a split of authority among the courts of appeals on the issue, this Court previously
construed subsection (c) to mean that a trial court’s ruling on a motion for temporary
orders pending appeal is reviewable only by mandamus. For example, Marcus v.
Smith involved an appeal from an order dismissing a suit to enforce an adjudication
of parentage, and the father included a complaint in his appeal about temporary
orders requiring him to pay the mother’s attorney’s fees under section 109.001. See
313 S.W.3d 408, 416 (Tex. App.—Houston [1st Dist.] 2009, no pet.). This Court
concluded it lacked jurisdiction to consider the complaint as part of the appeal;
instead, a related mandamus filed by the father was the means to challenge the order.
Id. at 415–16, 418.
The Legislature has since amended section 109.001 to add subsection (b–5),
which states, “A party may seek review of the trial court’s temporary order under
this section by: (1) petition for writ of mandamus; or (2) proper assignment in the
party’s brief.” TEX. FAM. CODE § 109.001(b–5) (amended in 2017). Given that a
party can challenge a trial court’s temporary order under section 109.001 by “proper
assignment in the party’s brief,” we construe subsection (c) as barring review of a
temporary order only through accelerated interlocutory appeal, but not as part of a
direct appeal from a final judgment. See, e.g., In re N.H.N., 580 S.W.3d 444–45
(Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding subsection (c) allows
41 temporary orders under section 109.001 to be challenged in direct appeal from final
judgment); In re Moore, 511 S.W.3d 278, 286 (Tex. App.—Dallas 2016, no pet.)
(same). To the extent Marcus or this Court’s other decisions hold that a temporary
order under section 109.001 is not reviewable as part of a direct appeal from a final
judgment, we consider that holding to be superseded by statute.
Because we can (and do) address the temporary order on attorney’s fees in
Mother’s appeal of the trial’s court final modification order, we deny Mother’s
petition for writ of mandamus, but consider the issues raised in that petition in
addressing her appellate argument. See Walker v. Packer, 827 S.W.2d 833, 840–41
(Tex. 1992) (orig. proceeding) (mandamus is inappropriate where relator has
adequate remedy by appeal); cf. In re Fuentes, 506 S.W.3d 586, 592 (Tex. App.—
Houston [1st Dist.] 2016, orig. proceeding) (mandamus review of temporary orders
entered under sister provision in TEX. FAM. CODE § 6.709 for preservation of
property during appeal is available only when review of order in conjunction with
appeal is not adequate).
B. The temporary order is not void for prematurity
Mother contends the trial court lacked jurisdiction to award Father any
attorney’s fees under section 109.001 and as a result, the order is void. Specifically,
she argues the temporary order is “void” because section 109.001 “has a strict
temporal limitation” that confers the trial court with jurisdiction to grant relief “only
42 after an appeal has been perfected and within 60 days thereafter.” Because here, the
trial court entered the temporary order before the purportedly jurisdictional window
opened with the filing of her notice of appeal, Mother contends the order is void.
Father disagrees the order was premature but asserts that, even if it were, we should
overrule Mother’s issue because any error in the order’s timing is not jurisdictional.
“Jurisdiction” refers to a court’s authority to adjudicate a case. Reiss v. Reiss,
118 S.W.3d 439, 443 (Tex. 2003). If a trial court lacks jurisdiction over the parties
or the subject matter or acts outside its capacity as a court, its order is “void.” Id. In
contrast, an order is merely “voidable” if it results from errors other than lack of
jurisdiction, such as actions that violate a statute, which may be corrected through
the ordinary appellate process or other proper proceedings. Id.; see Comm’n for
Lawyer Discipline v. Schaefer, 364 S.W.3d 831, 836 (Tex. 2012) (per curiam)
(violations of procedural rules, statutes, and constitutional requirements “generally
only result in a ‘voidable’ or erroneous judgment” rather than void judgment).
In civil cases, including cases under the Family Code, “[a] trial court retains
jurisdiction over a case for 30 days after it signs a final judgment or order.” Martin
v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (citing TEX. R. CIV. P. 329b(d)). When, as here, a
motion for new trial is timely filed, the trial court’s plenary power is extended until
43 thirty days after the motion is overruled by written order or operation of law,
whichever occurs first. TEX. R. CIV. P. 329b(e).
While the trial court still had plenary power, and before she filed her notice
of appeal, Mother filed a post-judgment motion expressing her intention to appeal
and requesting abatement of the modification order pending the appeal under section
109.001. In opposing Mother’s motion to abate, Father sought attorney’s fees under
the same statute to preserve and protect the children’s welfare during the anticipated
appeal, which the trial court awarded.
Section 109.001(a) provides:
(a) In a suit affecting the parent-child relationship, on the motion of any party or on the court’s own motion and after notice and hearing, the court may make any order necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal as the court may deem necessary and equitable. In addition to other matters, an order may: ...
(5) require payment of reasonable and necessary attorney’s fees and expenses[.11] TEX. FAM. CODE § 109.001(a)(5). Relevant here, the statute prescribes a timeline,
stating in subsection (b–2) that the “trial court retains jurisdiction to conduct a
11 Effective September 1, 2025, the Legislature amended section 109.001(a)(5) to authorize awards of court costs in addition to attorney’s fees and expenses. See 2025 TEX. SESS. LAW SERV. Ch. 593 (H.B. 2524). No costs are at issue, and we apply the version of the statute in effect when the trial court rendered the temporary order.
44 hearing and sign a temporary order under this section until the 60th day after the date
any eligible party has filed a notice of appeal from final judgment under the Texas
Rules of Appellate Procedure.” Id. § 109.001(b–2).
Mother asserts that the phrase “during the pendency of the appeal” in
subsection (a) and the sixty-day deadline in subsection (b–2), read together, create a
jurisdictional window for the issuance of temporary orders that opens when any
eligible party files a notice of appeal from a final judgment and closes sixty days
later. Because the trial court entered the temporary order on attorney’s fees nine
days before Mother filed her notice of appeal, Mother contends the order is
premature, falls outside the jurisdictional window, and is thus void and must be
vacated.
Mother cites several cases in support of her statutory construction. See, e.g.,
Morris v. Veilleux, No. 03-22-00178-CV, 2023 WL 8191911, at *3 (Tex. App.—
Austin Nov. 28, 2023, no pet.) (mem. op.); In re Reardon, 514 S.W.3d 919, 924
(Tex. App.—Fort Worth 2017, orig. proceeding); Marcus, 313 S.W.3d at 416; In re
K.M., No. 02-04-00044-CV, 2004 WL 2569384, at *8 (Tex. App.—Fort Worth Nov.
12, 2004, pet. denied) (per curiam) (mem. op.). None of the cited cases involves a
section 109.001 order being declared void for prematurity. That is, in none of the
cited cases did a court determine when a trial court must first act under section
45 109.001. One case concerns when a trial court may last act under the statute and the
rest provide only general context without analysis or full consideration of the issue.
For instance, in Morris, the temporary order issued too late. There, the father
appealed a final divorce decree, and the mother moved under section 109.001 for the
father to pay her appellate attorney’s fees to preserve and protect the children’s
welfare. Morris, 2023 WL 8191911, at *3. The trial court initially denied the
request, stating that it “maintain[ed] plenary power and reserve[d] the right to award
attorney’s fees after” the appellate court ruled. Id. After the appellate court issued
its judgment and remanded the case to the trial court, the trial court awarded the
mother her appellate attorney’s fees. Id. The appellate court vacated the order,
noting that the statute’s plain purpose “is to ensure that, while the appeal is pending,
the children’s safety and welfare is preserved and protected.” Id. The court reasoned
that an order awarding fees after an appeal is “too late to protect and preserve the
children’s safety and welfare during the appeal’s pendency and no longer serves the
purpose underpinning” the statute. Id. (emphasis in original). Thus, while Morris
is instructive on when it is too late for the trial court to grant relief under section
109.001, it is not instructive on how early a trial court may act under the statute.
Likewise, the issue in Reardon was not the trial court’s jurisdiction to grant
relief under section 109.001. There, the father petitioned the appellate court for a
writ of prohibition to prevent the trial court from modifying a final order in a suit
46 affecting the parent-child relationship under Title 5, Subtitle B of the Family Code
while the appeal of that order was pending. Reardon, 514 S.W.3d at 921. The father
argued that allowing such a modification under Subtitle B would not only moot the
pending appeal but render section 109.001, under Subtitle A, meaningless. Id. at
923. While the appellate court generally described the window in which a trial court
may act under section 109.001 in answering this question and the interplay between
Subtitles A and B, a section 109.001 order was not the subject of the appeal. Id. at
924–25.
Mother also points to statements in K.M. and Marcus that a “temporary order
under section 109.001 is only appropriate if a final judgment has been signed and a
notice of appeal has been filed” as support for her contention that the trial court could
not order attorney’s fees before she appealed. See Marcus, 313 S.W.3d at 416; K.M.,
2004 WL 2569384, at *8. The sole authority Marcus cites for this statement is K.M.,
which in turn cites only the statute itself, without any analysis. See K.M., 2004 WL
2569384, at *8. Importantly, neither Marcus nor K.M. involved a question of the
trial court’s jurisdiction to enter temporary orders under section 109.001; rather,
they both concerned the appellate court’s jurisdiction to review such orders under
the previous version of the statute that prohibited accelerated interlocutory appeals
from section 109.001 orders. See Marcus, 313 S.W.3d at 416 (holding it lacked
jurisdiction to review section 109.001 order on direct appeal because the order was
47 interlocutory); K.M., 2004 WL 2569384, at *8 (same). While Marcus includes some
discussion on the merits of the section 109.001 order,12 the discussion is limited to
the sufficiency of the evidence supporting the necessity of attorney’s fees to preserve
and protect the safety and welfare of the child and the unconditional nature of the
fee award. 313 S.W.3d at 418. Accordingly, we conclude the statements Mother
relies on are dicta.13
Mother has not cited (nor have we found) any case holding that section
109.001’s language deprives the trial court of jurisdiction to issue a temporary order
before a party files a notice of appeal from a final judgment. Considering section
109.001 as a whole and the ordinary meaning of the words used, we conclude the
statutory language does not have that effect.
The plain purpose of section 109.001 is to preserve and protect the children’s
safety and welfare during an appeal in a suit affecting the parent-child relationship.
12 The court considered the temporary order on mandamus review. See Marcus, 313 S.W.3d at 418. 13 The same is true for the cases Mother cites on Family Code section 6.709, a parallel statute authorizing orders necessary in divorce suits to preserve property or protect the parties during an appeal. See TEX. FAM. CODE § 6.709. For instance, in Fuentes v. Zaragoza, this Court referenced the extension of the trial court’s plenary power under section 6.709 as a “jurisdictional window” that began to run when the appellant “perfected his appeal.” 534 S.W.3d 658, 663 (Tex. App.—Houston [1st Dist.] 2017, no pet.). But again, that statement was about calculating the final date on which the trial court had jurisdiction to act under section 6.709, not the first. See id. (holding appointment of receiver under section 6.709(a) was not authorized because the order was issued after expiration of the 30-day jurisdictional limitation in the statute). 48 Morris, 2023 WL 8191911, at *3. Nothing in the statute suggests that the phrase
“during the pendency of an appeal” in subsection (a) limits the court’s ability to act
only after a notice of appeal is filed. See TEX. FAM. CODE § 109.001(a). Instead,
the phrase relates to the immediately preceding phrase stating that the court may
make any order necessary to “preserve and protect the safety and welfare of the
child.” That is, as Father asserts, the phrase describes relief that a trial court may
deem “necessary” and “equitable” to grant relief that will “preserve and protect the
safety and welfare of the child during the pendency of an appeal.”
Mother’s argument that section 109.001(a) creates a limited 60-day
jurisdictional window that starts upon the filing of a notice of appeal is further
discounted by the fact the statute expressly states that the court retains jurisdiction
to act under the statute. Specifically, under subsection (b–2), the trial court “retains
jurisdiction” to conduct hearings and sign temporary orders granting such relief
“until the 60th day after the date any eligible party has filed a notice of appeal[.]”
TEX. FAM. CODE § 109.001(b–2). To “retain” means “to hold in possession or under
control; to keep and not lose, part with, or dismiss.” Retain, BLACK’S LAW
DICTIONARY (12th ed. 2024); see also Retain, MERRIAM-WEBSTER.COM,
http://merriam-webster.com/dictionary/retain (defining “retain” as to “keep in
possession or use” or “hold secure or intact”). And “until” is “used as a function
word to indicate continuance . . . to a specified time.” Until,
49 MERRIAM-WEBSTER.COM, http://merriam-webster.com/dictionary/until. Applying
the common understanding of these words, subsection (b–2) can be read only as
extending the power of the court to act under the statute, not as creating a
jurisdictional window that commences only upon the filing of a notice of appeal.
That is, subsection (b–2) prescribes how long the trial court’s jurisdiction extends
before it is lost, not when it begins. The Legislature saw fit to use language
indicating when the trial court’s jurisdiction under section 109.001 ends and could
have easily used language indicating that such jurisdiction begins when a notice of
appeal is filed but did not do so. See, e.g., Lippincott v. Whisenhunt, 462 S.W.3d
507, 509 (Tex. 2015) (per curiam) (“Had the Legislature intended to limit the Act to
publicly communicated speech, it could have easily added language to that
effect.”).14
We find nothing in section 109.001 that prescribes a consequence for an
allegedly premature order or that can be read as depriving the trial court of
jurisdiction to issue a temporary order after a final judgment has been issued but
14 We note that subsection (b–1) provides that a motion under section 109.001 “may be filed before trial” and “may not be filed by a party after the date by which that party is required to file the party’s notice of appeal[.]” See TEX. FAM. CODE § 109.001(b–1). While this does not pertain to when the trial court is supposed to rule on the motion, it supports that section 109.001 is not something to put off unless a notice of appeal is filed. Indeed, as we have discussed, Mother was the first party to file a motion seeking section 109.001 relief, and she proceeded on the hearing on her motion (and Father’s motion) before filing her notice of appeal.
50 before an appeal is perfected. See TEX. R. CIV. P. 329b(d), (e) (when a motion for
new trial is filed, trial court has plenary power until 105 days after judgment was
signed). Accordingly, we hold that the temporary order is not void for prematurity.
We overrule that part of Mother’s fourth issue complaining that the temporary order
was issued too early.
C. The temporary order is not void because it awards non-appellate fees Mother also challenges the temporary order on attorney’s fees on a second
jurisdictional ground. She argues that the order is “void to the extent it awarded
[Father] past fees for responding to [her] emergency motion” because section
109.001 authorizes only appellate fees.
There is no dispute that some of the attorney’s fees the trial court ordered
Mother to pay are not appellate fees but instead are fees Father incurred before the
appeal in responding to Mother’s post-judgment motion to abate. Assuming without
deciding that the statute authorizes only appellate fees, Mother has offered no
authority for her contention that awarding fees other than for appellate work is a
jurisdictional defect that renders the order void rather than a non-jurisdictional error
that makes the order merely voidable.15 We find no support for that contention in
15 Both Mother and Father sought post-judgment attorney’s fees under section 109.001 in connection with Mother’s motion to abate. Having both requested post-judgment fees, neither objected in the trial court to the availability of such fees under section 109.001. 51 either the plain language of section 109.001 or the case law. Instead, a trial court’s
order granting relief that is neither necessary to preserve and protect the children’s
welfare during an appeal nor equitable, including potentially attorney’s fees for work
performed before the appeal, is non-jurisdictional error that renders the order
voidable or erroneous rather than void. See In re Masonite Corp., 997 S.W.2d 194,
198 (Tex. 1999) (explaining that while the trial court’s transfer orders were an abuse
of discretion and thus erroneous they were not void because the mere fact that an
action of a trial court is contrary to a statute makes the action not void but voidable
or erroneous); see also Tex. Windstorm Ins. Ass’n v. Pruski, 689 S.W.3d 887, 893
(Tex. 2024) (“[F]ailure to comply with a statute, while it may render a judgment
erroneous and voidable, does not necessarily render the judgment void”); In re
Panchakarla, 602 S.W.3d 536, 540 (Tex. 2020) (per curiam) (“[A]s a general
proposition, we are hesitant to conclude that a trial court’s jurisdiction is curtailed
absent manifestation of legislative intent to that effect[.]”).
We overrule that part of Mother’s fourth issue complaining that the temporary
order is void to the extent it awarded past fees.
D. Sufficient evidence supports the equity and necessity of attorney’s fees Mother next argues the temporary order on attorney’s fees is an abuse of the
trial court’s discretion because Father (1) judicially admitted there was no threat to
the children’s safety or welfare and (2) failed to present legally and factually
52 sufficient evidence that the fees he sought were equitable and necessary to preserve
or protect the children’s welfare during the appeal, as required by section 109.001.
Mother points to a statement in Father’s response to her motion to abate
disputing whether she could satisfy her burden to “show the current situation
threatens or endangers the safety or welfare of the children or that the relief she
requests would be appropriate, much less necessary.” In her motion to abate, Mother
specifically alleged that Father had not met the children’s medical and educational
needs since rendition and specifically asked the trial court to temporarily restore her
right to make decisions in those areas, give her more time with the children, and
order A.P.L.’s enrollment at the specific public school A.P.L. preferred. Father’s
response putting Mother to her burden to show the necessity of such relief under the
statute is not a judicial admission that the attorney’s fees he sought were
unnecessary. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936
S.W.2d 275, 278 (Tex. 1996) (per curiam) (judicial admission must be clear,
deliberate, and unequivocal).
As the party moving for the award under section 109.001, Father had the
burden to prove the attorney’s fees were equitable and necessary to preserve and
protect the children’s safety and welfare during the appeal. See TEX. FAM. CODE
§ 109.001(a); McCain v. McCain, 636 S.W.3d 679, 684 (Tex. App.—Austin 2021,
53 no pet.). After reviewing the record, we conclude the trial court’s decision to award
Father attorney’s fees was not arbitrary or unreasonable considering the evidence.
Mother asserts Father did not prove that “he could not afford to pay for his
portion of the children’s basic needs or that the children would lack any necessity if
the trial court did not award him” attorney’s fees. She emphasizes the trial court’s
finding in the modification proceeding that Father did not need child support and no
longer has to pay it himself as well as Father’s own testimony that he earns about
$250,000 per year, had a contract to sell his home for more than $1 million, and had
moved into a new home that he was not financially responsible for after remarrying.
She draws a contrast between this evidence of Father’s resources and her own,
pointing to the trial court’s earlier finding that she “has no stable source of income
or resources” and has relied on family to pay her own attorneys and her own
testimony that she had also borrowed money and could not pay for the legal fees for
bringing her motion to abate. In Mother’s view, this contrast compelled a conclusion
that Father could afford to pay his own attorney’s fees, but she could not.
We disagree that the trial court’s finding in the modification proceeding that
Father can provide for the children without the amount of support Mother would pay
under the child-support guidelines precludes a subsequent finding that the financial
strain of continued litigation jeopardizes Father’s ability to meet the children’s
welfare needs during the appeal. Since rendition, Father has had primary
54 responsibility for the children, who each require the service of various tutors,
therapists, and other specialists to address unique medical needs and learning
differences. Father testified that he is “in debt up to [his] eyeballs” and owes more
than $200,000 in family loans and credit-card debt from the litigation, and his
attorney testified that Father would incur another $173,250 in fees to defend the
modification order as in the best interests of the children on appeal.
Despite working two jobs to earn about $250,000 per year, Father described
the financial impact of the ongoing litigation as “significant” on the children. He
testified that he had to use savings intended for the children’s college expenses to
pay for the litigation. He testified that insurance coverage for T.L.’s growth
hormone was becoming more difficult and he could not afford to pay his portion of
the cost out of pocket. And he was not making payments on the new family home
because he could not afford to do so. Father also points to Mother’s testimony in
the modification proceedings that she had paid off the mortgage on her home and
receives money from her family for living expenses and attorney’s fees (even though
she described those funds as a loan).
The trial court could believe Father and disbelieve Mother. See City of Keller,
168 S.W.3d at 819. Viewed in the appropriate light, the evidence was legally and
factually sufficient to support the exercise of the trial court’s broad discretion to
deem an award of attorney’s fees to Father both equitable and necessary to preserve
55 and protect the children’s safety and welfare during the appeal. See Marcus, 313
S.W.3d at 418 (affirming award for recipient who had primary responsibility for
caring for child and child’s principal home, a “lack of funds,” and “still owe[d] [her
attorney] money”); see also McCain, 636 S.W.3d at 685 (affirming award for
recipient who, despite living with her parents for free, could not pay to defend appeal
after borrowing to pay trial counsel’s retainer and incurring $50,000 for trial court
proceedings). The trial court’s decision to award the fees was neither arbitrary nor
unreasonable.
We overrule that part of Mother’s fourth issue challenging the temporary
order on attorney’s fees as unsupported by the evidence.16
16 To the extent Mother’s fourth issue asserts the trial court abused its discretion by awarding attorney’s fees as a sanction against Mother, the record does not support that the fees were awarded as a sanction. Although Father requested fees alternatively under Texas Rule of Civil Procedure 13 and Chapter 10 of the Civil Practice and Remedies Code, the temporary order expressly granted relief under section 109.001 only. See TEX. CIV. PRAC. & REM. CODE § 10.001–.006 (frivolous pleadings); TEX. R. CIV. P. 13 (groundless pleadings). 56 V. Conclusion
For the reasons above, we deny Mother’s petition for writ of mandamus and
affirm the trial court’s judgment.
Andrew Johnson Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Related
Cite This Page — Counsel Stack
In the Interest of A.P.L. and T.D.L., Minor Children v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-apl-and-tdl-minor-children-v-the-state-of-texas-texapp-2025.