In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-24-00195-CV __________________
IN THE INTEREST OF A.R.-M.B.
__________________________________________________________________
On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 14-03-03298-CV __________________________________________________________________
MEMORANDUM OPINION
This is an appeal of a final Agreed Order in Suit to Modify Parent-Child
Relationship after a bench trial. Appellant Mother appeals the judgment, raising two
issues: (1) she argues that the evidence was not sufficient to support the trial court’s
failure to modify the previous order to give Mother additional possession of and
access to the child, “Anna,” 1 and (2) she argues that the trial court abused its
discretion by rendering an order that was not in the child’s best interest and denying
Mother’s requested modification. As explained below, we affirm.
We use pseudonyms to refer to the parties and lay witnesses. See Tex. Fam. 1
Code Ann. § 109.002(d). 1 Pretrial Procedure
On June 1, 2023, the Office of the Attorney General (“AG”) filed a Suit for
Modification of Child Support Order relating to child support for Anna. The order
to be modified was the Order to Modify Suit Affecting the Parent-Child Relationship
that was signed on November 6, 2014. The AG alleged that circumstances of the
child or of a person affected by the previous order had materially and substantially
changed.
On June 22, 2023, Mother also filed a Petition to Modify Parent-Child
Relationship, asking that she be appointed Joint Managing Conservator of her
daughter, Anna, with the exclusive right to designate Anna’s primary residence and
to make educational decisions, and that she have primary custody of Anna. In the
alternative, Mother asked the trial court to change the meeting place for exchange of
the child to a location halfway between Mother’s and Father’s homes. Mother also
asked the trial court to terminate the support payments previously ordered and to
require Father to pay child and medical support for Anna. Anna was almost 12 years
old when Mother filed her Petition.
Father filed a general denial Answer and argued that Mother’s Petition was
“filed improperly” because the AG had already filed a pending modification suit.
The clerk’s record in this case includes a Petition for Writ of Habeas Corpus that
2 Father filed in August of 2023 that alleged that Mother was illegally restraining
Anna from Father’s possession. The AG nonsuited its lawsuit on August 29, 2023.
Mother filed a First Amended Petition on March 25, 2024, retaining the
previous allegations in the Original Petition and alleging that there had been a
material change in the child’s circumstances since rendition of the previous order,
and that the modifications Mother requested were in Anna’s best interest.
Evidence at the Bench Trial
Mother’s Testimony
Mother testified that she lived with “Connor,” her common-law husband, and
their two children, “Risa” and “Howie,” who are younger than Anna. Mother
testified that she has a car, a paid-off home, and income, and if Anna came to live
with her, Anna and Risa would share a room. Mother stated that she was not working
at the time of trial, and during the day she homeschooled Risa. According to Mother,
Anna could be covered for health insurance through Connor’s job. Mother testified
that Connor could not take two days off of work in a row for trial but that she had
filed a motion for him to testify by Zoom.
Mother testified that she had “looked into” school districts in her area and that
she would give Anna the choice of home schooling or going to school. According to
Mother, she had missed no visitations with Anna, but she had not attended any of
Anna’s school activities because she was not invited. Mother also testified that Anna
3 has dyslexia. Mother testified that she had asked to be “put on the [school’s]
paperwork” but her request was denied.
Mother testified that she was concerned about the food restrictions Father
imposed on Anna at Father’s house, such as being denied soup, getting the wrong
snacks, and having to make her own food. Mother was also concerned because
everything she bought for Anna was taken away by Father. Mother also expressed a
concern about Anna’s medical care regarding Anna’s syndactyly fingers, that Father
was not present for Anna’s hand surgery, that Anna was not allowed to use her
crutches at Father’s house, and that neither Father nor his wife were available to pick
up Anna when she hurt her foot at school. Mother was concerned that Father had
taken Anna’s phone away so Anna could not talk to Mother at Father’s house.
According to Mother, she had not talked to Father about her concerns because
Mother believed that Father and his wife would retaliate.
On cross-examination, Mother testified that she was currently staying in
Willis with her friend “Alene,” that she had also stayed in Conroe to help members
of her “adopted family[,]”but her home is in Edna, where her husband works and
which is about three hours from Father’s home. Mother testified that she and Connor
married in 2012, but they got divorced, and at the time of trial they were “common-
law married.” She testified that she had an associate’s degree in medical
4 reimbursements, and that she was pursuing another degree in alternative medicine,
but she did not work at the time of trial.
Mother agreed that when Anna hurt her foot, Father had taken Anna to the
doctor and did what the doctor advised. Mother also agreed that she took Anna to a
different doctor because Anna “was in pain.” She agreed she had concerns about
Anna’s mental health, but she had not talked with Father about it nor tried to get an
appointment with a counselor. Mother also testified she had not attended any of
Anna’s ARD meetings regarding Anna’s educational needs.
Mother agreed she has been behind on child support “a couple months[,]”but
that at one point, she was over $5,000 behind even though her monthly child support
was $150. Mother believed she was “about three months behind” in her child support
payments at the time of trial.
Mother denied ever talking with Father about relinquishing her parental rights,
although she remembered asking what needed to be done to sign over her parental
rights. Mother also denied knowing about a writ of habeas in August of 2023 for her
to return Anna to Father. According to Mother, she had not talked with Father about
any of her concerns about his home or Anna’s food. Mother also testified she had
not talked with Father about concerns over Anna’s phone, but she had told Anna that
if she was scared that she was going to get in trouble, that she should delete her text
messages with Mother. Mother recalled that a couple of times she told Father that
5 she forgot it was her weekend to have Anna. Mother testified that she did not know
Anna’s pediatrician.
Testimony of “Betty”
Betty testified that she lived in Conroe, and she and Mother had been best
friends for twenty years. Betty knew Anna, and she had taken care of Anna when
she was born, she no longer has regular contact with Anna, and she had seen Anna
once about a month before trial. According to Betty, Mother and Anna have “the
perfect mother daughter bond.” On cross-examination, Betty testified that at one
point, Mother stayed with her when Betty’s family was in a car accident. Betty
testified that she did not like Connor, but she did not know if Connor had been
aggressive with Mother.
Testimony of “Jim”
Jim testified that he is Mother’s father, he works as a welder in Conroe, and
he lives on fourteen acres with his fifteen-year-old son. He testified that Mother has
a good relationship with Anna, and he would not have any problems with Anna going
to live with Mother. On cross-examination, he testified that he had been convicted
of felony possession of methamphetamine, and he completed probation for that
offense. According to Jim, he had not discussed with Mother any plans for her to
move to a trailer on his property.
6 Father’s Testimony
Father testified that he is a master plumber and lead installer for a large
plumbing company, and his wife Lorrie is a dental assistant. In addition to Anna, he
has four other children—one daughter older than Anna, a son the same age as Anna,
a daughter younger than Anna, and a one-year-old son. He explained that he and his
family live in a five-bedroom home in Cleveland on a five-acre tract, and Anna has
her own room.
Father testified that he checks Anna’s phone when she returns from Mother’s
home to “make sure [Anna’s] not doing something she’s not supposed to[]”and that
he asks Anna to tell him when Mother is messaging Anna because Father does not
want messages to be permanently deleted.
According to Father, Mother had not asked him anything about Anna’s school,
and Mother had not tried to find out about Anna’s education or health care until after
this lawsuit was filed. Father testified that when Anna had hand surgery, Mother
chose to pay for everything, and Father sent her a copy of his insurance card and the
name of Anna’s pediatrician.
Father agreed that Anna was a picky eater at times, but he testified that the
pantry and freezer are “well stocked,” and there is never an objection from him as to
what the children can eat except for certain foods that are set aside for school
lunches. He also testified that there are hot pockets, burritos, and ramen noodles
7 available for Anna and the other children to heat up. Father was “adamant” that Anna
should not be homeschooled because Anna “needs social skills, and you can only
get social skills from a public environment.”
Father recalled that there had been problems “[m]any times” with Mother
being on time for exchanging Anna. He testified that he had never asked Mother to
increase her child support, and at one point, Mother asked him to return some of the
child support she had paid, but he did not return the money because the money was
for Anna. Father also was concerned that Mother was telling Anna to delete text
messages and “make sure he doesn’t see them.” Father explained that he filed the
habeas petition because he had agreed for Mother to have Anna for extra time during
the summer, but Mother told him she was not going to return Anna when school
started, and it was important for Anna to come home to get ready for school.
On cross-examination, Father testified that he had not notified Mother of
Anna’s doctor’s appointments because “she hasn’t asked.” Father did not inform
Mother when he decided to hold Anna back in school, and he agreed that the
insurance card he sent Mother for Anna’s hand surgery did not have Anna’s name
on it, but it is a family insurance. Father recalled that Mother had asked him if
holding Anna back a grade helped her because Mother was thinking about doing that
with her daughter Risa. He recalled that he gave Anna’s school the “court papers”
when he and Lorrie registered Anna for school. Father did not remember whether he
8 designated Mother as an emergency contact. He agreed he did not forward Anna’s
extracurricular schedule to Mother because he did not have a schedule. Father
testified that he thought Anna had some immature interests, such as coloring and
playing with baby dolls. That said, Father agreed that Anna does her own laundry
and she cooks for herself, but not all the time.
Lorrie’s Testimony
Lorrie testified Mother had never asked her about Anna’s schooling, but she
agreed that she no longer talks with Mother. She testified that Father does homework
with Anna regularly.
Post-Evidentiary Procedure
The trial court interviewed Anna after the parties finished presenting their
witnesses, and no record was requested nor made of that interview. In ruling from
the bench, the trial court stated that it found there had been a material and substantial
change of circumstances, but it was making no modifications to the prior order
except to award Father the exclusive right to apply for and maintain Anna’s passport.
After the bench trial, the trial court signed an Agreed Order in Suit to Modify
Parent-Child Relationship. The trial court ordered Father to continue as sole
managing conservator and Mother as possessory conservator of Anna, that Mother
pay Father $58.79 per month for “additional child support” for reimbursement of
health insurance, and that all relief not expressly granted is denied.
9 Mother requested the trial court to make findings of fact and conclusions of
law, and the trial court signed the Findings of Fact and Conclusions of Law that
stated, in relevant part:
[] Multiple questions exist regarding [Mother’s] stability. Around June of 2020, [Mother] suggested to [Father] that she wanted to have her parental rights to [Anna] terminated. [Mother] claims to be currently married, but testified that she and her “current husband” previously divorced and that they are now “common law” married. The man to whom [Mother] claims she is married neither appeared, nor testified, at trial. [Mother] is unemployed. [Mother] would allow [Anna] to decide whether she would attend public school or be “home schooled.” No evidence was presented to confirm that [Mother’s] 9 year old child (whom she allows to be “home schooled”) is actually participating in a legitimate “home school” curriculum. [Mother] had never communicated with [Anna’s] school until approximately 2 months prior to trial. [Mother] is often late for her scheduled periods of possession. [Mother] has been over $5,000.00 behind in her child support obligation, which is only $100.00 per month, and is currently 3 months behind. [Mother] previously retained possession of [Anna] beyond her court-ordered period of possession causing [Father] to have to file a “habeas” action to retrieve [Anna]. [Mother] has not communicated any of her “concerns” about [Anna] to [Father]. [Mother] has exhibited alienating behaviors, including encouraging [Anna] to delete messages between her and [Anna] in order to prevent [Father] from reading them.
[] Portions of [Mother’s] testimony were found to be incredible.
[] [Father] provides a stable home and family life for [Anna]. [Anna] makes “A”s and “B”s in school, has perfect attendance, and is enrolled in extra-curricular activities. [Father] has met all of [Anna’s] financial needs even though [Mother] has been inconsistent paying child support. ... [] Any and all other relief requested by [Mother] would not be in the best interest of [Anna]. ...
10 [] The modifications ordered by the court are in the best interest of the child and the circumstances of the child and/or a conservator have materially and substantially changed since November 6, 2014.
Mother timely filed a Notice of Appeal.
Issues
Mother presents two issues on appeal. In her first issue, Mother argues that
the trial court abused its discretion when it did not find sufficient evidence to modify
the previous order’s terms on possession, conservatorship, or rights and duties in
Mother’s favor. In her second issue, Mother argues that the modification the trial
court granted is not in Anna’s best interest, and the trial court should have granted
the modification that Mother requested.
Standard of Review
In a modification suit, whether the moving party has met the burden of
establishing a material and substantial change is a threshold question. See In re R.A.,
No. 09-20-00275-CV, 2022 Tex. App. LEXIS 7575, at *17 (Tex. App.—Beaumont
Oct. 13, 2022, no pet.) (mem. op.) (citing In re T.M.P., 417 S.W.3d 557, 563 (Tex.
App.—El Paso 2013, no pet.)). Determination of a material and substantial change
is fact specific and not controlled by a set of guidelines. Id. (citing Arredondo v.
Betancourt, 383 S.W.3d 730, 734 (Tex. App.—Houston [14th Dist.] 2012, no pet.)).
To be entitled to a modification, the party requesting the modification must prove
(1) the modification requested is in the child’s best interest, and (2) the
11 circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since the prior order. See Tex. Fam. Code Ann.
§ 156.101(a)(1)(A).
The trial court is given wide latitude in determining what is in the best interest
of a minor child, and we review a trial court’s decision pertaining to a modification
order under an abuse of discretion standard. See In re R.A., 2022 Tex. App. LEXIS
7575, at *13 (citing Smith v. Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston
[1st Dist.] 2018, no pet.)); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982); In re E.C.C., 539 S.W.3d 425, 429 (Tex. App.—Beaumont 2018, pet. denied).
A trial court abuses its discretion if it acts arbitrarily or without reference to any
guiding rules or principles. See In re G.J.G., No. 09-21-00396-CV, 2023 Tex. App.
LEXIS 9542, at **11-12 (Tex. App.—Beaumont Dec. 21, 2023, no pet.) (mem. op.)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985); In re M.A.M., 346 S.W.3d 10, 13 (Tex. App.—Dallas 2011, pet. denied)). A
trial court does not abuse its discretion if its order is supported by some evidence of
a substantial and probative character. See In re L.J.L., No. 09-21-00286-CV, 2023
Tex. App. LEXIS 6568, at *12 (Tex. App.—Beaumont Aug. 24, 2023, no pet.)
(mem. op.). In determining whether some evidence supports the decision, we review
the evidence in the light most favorable to that decision, and we indulge every
presumption in its favor. See In re L.K.S., No. 09-23-00364-CV, 2024 Tex. App.
12 LEXIS 5879, at *14 (Tex. App.—Beaumont Aug. 15, 2024, no pet.) (mem. op.)
(citing In re G.E.D., No. 05-17-00160-CV, 2018 Tex. App. LEXIS 8, at **11-12
(Tex. App.—Dallas Jan. 2, 2018, no pet.) (mem. op.)).
In this bench trial, the trial court is the sole judge of the credibility of the
witnesses and determines the weight to be assigned to their testimony, and our
review must defer to the trial court’s factual determinations. See In re J.F.-G., 627
S.W.3d 304, 312 (Tex. 2021) (citing In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009));
City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The factfinder is free to
believe one witness and disbelieve another, and reviewing courts may not impose
their own opinions to the contrary. See City of Keller, 168 S.W.3d at 819. As such,
reviewing courts must assume that the factfinder decided all credibility questions in
favor of the findings, and chose what testimony to disregard in a way that was in
favor of the findings, if a reasonable person could do so. See id. at 819-20. We review
a trial court’s findings of fact for legal sufficiency, and its conclusions of law under
a de novo standard of review. See BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
not credible. See In re J.F.-G., 627 S.W.3d at 312 (citing In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)).
13 When findings of fact are filed and are unchallenged, they occupy the same
position and are entitled to the same weight as a jury’s verdict; they are binding on
an appellate court unless the contrary is established as a matter of law or there is no
evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696
(Tex. 1986); In re Marriage of Karsagi, No. 13-20-00077-CV, 2022 Tex. App.
LEXIS 1934, at *20 (Tex. App.—Corpus Christi–Edinburg Mar. 24, 2022, pet.
denied) (mem. op.). Thus, we defer to unchallenged findings of fact that are
supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC,
437 S.W.3d 518, 523 (Tex. 2014). We overrule an appellant’s issue when
unchallenged findings or conclusions independently support the trial court’s
judgment or ruling. See Patton v. Echols, No. 09-22-00334-CV, 2024 Tex. App.
LEXIS 7751, at *51, *58 (Tex. App.—Beaumont Oct. 31, 2024, no pet.) (mem. op.)
(citing Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 889 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied)).
“The best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to
the child.” Tex. Fam. Code Ann. § 153.002(a). On appeal, we assess the trial court’s
best-interest finding by using the Holley factors. See In re D.E.T., No. 09-22-00197-
CV, 2023 Tex. App. LEXIS 5811, at **18-19 (Tex. App.—Beaumont Aug. 3, 2023,
no pet.) (mem. op.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)).
14 The Holley factors include (1) the child’s desires; (2) the child’s current and future
physical and emotional needs; (3) any physical or emotional danger to the child in
the present or future; (4) the parental abilities of the individuals involved; (5) the
programs available to those individuals to promote the child’s best interest; (6) the
plans for the child by these individuals; (7) the stability of the home; (8) acts or
omissions by a parent tending to show that the existing parent-child relationship is
not a proper one; and (9) any excuse for the parent’s acts or omissions. Holley, 544
S.W.2d at 371-72. The Holley factors are not exclusive, and the evidence that the
factfinder considers in making a best-interest decision need not address all the Holley
factors. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re K.R.K.-L.H., 671 S.W.3d
761, 770 (Tex. App.—Beaumont 2023, pet. denied). The factfinder may consider
direct evidence, circumstantial evidence, subjective factors, and the totality of the
evidence. See In re K.P., No. 09-22-00049-CV, 2022 Tex. App. LEXIS 5787, at
**29-30 (Tex. App.—Beaumont Aug. 11, 2022, pet. denied) (mem. op.) (citing In
re R.J., 568 S.W.3d 734, 751-52 (Tex. App.—Houston [1st Dist.] 2019, no pet.)).
Analysis
Mother does not challenge any specific findings of fact that the trial court
made. Mother argues generally that the trial court failed to address any of Mother’s
concerns, “[d]espite the evidence and testimony given[.]” We defer to the trial court
as factfinder and assume that the factfinder decided all credibility questions in favor
15 of the findings of fact, and it chose what testimony to disregard in a way that was in
favor of the findings, if a reasonable person could do so. See City of Keller, 168
S.W.3d at 819-20. And we defer to unchallenged findings of fact that are supported
by some evidence. See In re J.F.-G., 627 S.W.3d at 312; Tenaska Energy, Inc., 437
S.W.3d at 523.
At trial, Mother admitted that she had not attended any of Anna’s school
activities, nor had she made efforts to have the school notify her after the school
denied her request to be put on the “paperwork.” Mother testified that although she
had concerns about Anna’s food, medical care, and phone usage, she had not talked
to Father and his wife about her concerns for fear they would “retaliate.” Mother
admitted she had gotten behind on her child support obligations of $150 per month,
and that at one point, she was over $5,000 behind. Mother first testified that she was
married to Connor, but she agreed they had divorced, and at the time of trial they
were “common law married.” Mother also testified that, at times, she has stayed with
friends and her “adopted family” in the Conroe area. Mother testified that she did
not work, that she homeschooled her other daughter, and that if Anna came to live
with her, she would let Anna—who was twelve years old at the time of trial—decide
whether to go to school or be homeschooled. Mother also admitted she had asked
Father what needed to be done for her to sign over her parental rights to Anna.
Mother admitted that she has instructed Anna to delete text messages with Mother.
16 Father testified that, not only had Mother gotten behind on child support
payments, but she also asked him to return some of the payments to her, and she was
often late when dropping off or picking up Anna. Father testified that although he
had allowed Mother to have possession of Anna for extra time during the summer,
one time Mother had not returned Anna as agreed, and he filed a habeas petition to
get Anna back home. Father testified that Mother had not asked about Anna’s
schooling or medical care. Although he described Anna as a picky eater, he also
testified that he and his wife keep snacks in the house that the children can have
when they want. Father further testified that Mother instructs Anna to delete her text
messages so that Father cannot read them. Father’s wife Lorrie testified that Mother
had never asked her anything about Anna’s schooling.
To the extent that Mother’s and Father’s testimony differs, we assume that the
trial court as factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and we disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been not credible. See In re J.F.-G., 627
S.W.3d at 312 (citing In re J.F.C., 96 S.W.3d at 266). Mother’s brief fails to
challenge any specific findings of fact that the trial court made, and we defer to
unchallenged findings of fact that are supported by the record. See Tenaska Energy,
Inc., 437 S.W.3d at 523. We also defer to the trial court’s credibility determinations
in a bench trial. See In re J.F.-G., 627 S.W.3d at 312. Therefore, we conclude that
17 some evidence supports the trial court’s decision to deny Mother’s requested
modifications and its determination of what was in Anna’s best interest, and we find
no abuse of discretion. See Holley, 544 S.W.2d at 371-72; In re R.A., 2022 Tex. App.
LEXIS 7575, at *13. We overrule both of Mother’s issues on appeal.
Having overruled Mother’s issues, we affirm the trial court’s Agreed Order in
Suit to Modify Parent-Child Relationship.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on May 19, 2025 Opinion Delivered July 10, 2025
Before Johnson, Wright and Chambers, JJ.