in the Interest of R.R.K., a Child

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00302-CV ___________________________

IN THE INTEREST OF R.R.K., A CHILD

On Appeal from the 362nd District Court Denton County, Texas Trial Court No. 20-4038-362

Before Kerr, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

In two points of error, Appellant B.R. (Mother) complains about the trial

court’s April 2017 Order in Suit to Modify Parent-Child Relationship (Modification

Order), which modified the August 2014 order (Parentage Order) adjudicating

Appellee T.K. (Father) as the father of R.R.K. (Daughter). In her first point, Mother

contends that the trial court abused its discretion by modifying the Parentage Order

regarding conservatorship, possession, child support, and medical support because the

evidence was factually insufficient to show a material and substantial change in the

parties’ circumstances. In her second point, she contends that the evidence is factually

insufficient to support a finding that the modifications were in Daughter’s best

interest. Because we hold that the trial court did not abuse its discretion by modifying

the Parentage Order as to conservatorship, possession, and Father’s support

obligation but that the evidence was factually insufficient to support the modification

as to Mother’s support obligation, we affirm in part and reverse in part.

I. Procedural History

Father filed a petition to establish paternity less than a month before

Daughter’s September 2013 birth. On July 20, 2014, he and Mother signed a mediated

settlement agreement (MSA). The trial court signed the Parentage Order in August

2014. The parties stipulated that the order was “a merger” of their MSA but that the

order trumped the MSA in cases of “any differences.” In the order, the parents were

appointed joint managing conservators (JMCs). Mother was awarded the exclusive

2 rights to designate Daughter’s primary residence and to receive child support. The

order provided that Daughter would “attend the school associated with [Mother’s]

residence so long as she resides within Frisco I.S.D., unless the parties” agreed in

writing otherwise. Father’s child support was set at $1,800 monthly. Both parties were

ordered to provide medical support. Father was ordered to provide health insurance,

and each parent was ordered to pay 50% of uninsured medical expenses.

Possession was as mutually agreed by the parents in advance and otherwise as

provided by the order. According to the order, for the period after Daughter’s second

birthday until she started school, Father’s weekly possession was from Wednesday at

3:00 p.m. until Friday at 9:00 a.m., and every other weekend from Friday at 3:00 p.m.

until Monday at 9:00 a.m. After Daughter began school, Father’s weekly possession

would be from Wednesday when school dismissed until Friday when school resumed,

and his possession every other weekend would begin when school dismissed on

Friday and end when school resumed the following Monday. His summer possession

was every other two weeks until August 15. During his extended Christmas

possession, Mother was awarded possession on Christmas Eve from 2:00 p.m. to

9:00 p.m., and during Mother’s extended Christmas possession, Father was awarded

possession on Christmas Day from 2:00 p.m. to 9:00 p.m.

In the order, a parenting facilitator, Linda Rollins-Threats, was appointed. The

parents were also permanently enjoined from being intoxicated while in possession of

Daughter, using or taking illegal drugs at any time, making disparaging remarks about

3 the other parent within Daughter’s hearing, and discussing with her in a negative way

the topics of the other parent or spending time with the other parent. The Parentage

Order also had a morality clause, a right of first refusal clause, and a proviso that the

parents communicate via Our Family Wizard (OFW).

In December 2014, the Attorney General of Texas filed a motion to confirm a

child support arrearage of more than $9,000. In January 2015, the arrearage was

confirmed as zero, but Father was ordered to pay court costs.

In February 2015, less than a year after signing the MSA, Father filed a petition

to clarify or modify the Parentage Order. He subsequently supplemented his petition.

In his pleading, Father alleged that the parties had agreed and intended that Mother’s

residence would be restricted to Frisco ISD’s attendance zone. Father requested that

the trial court “construe and clarify the terms of [the Parentage Order] to make

specific to restrict [Daughter’s] domicile” to Frisco ISD’s attendance zone. He also

alleged that his, Mother’s, or Daughter’s circumstances had materially and

substantially changed since the signing of the MSA. He further alleged that Mother

had given him notice that she planned to move to Prosper and that this move violated

the Parentage Order.

Father sought modification of the residence and domicile provisions “to more

clearly define the geographic boundary consistent” with the parties’ intent at

mediation. Alternatively, he sought to be named the JMC with the exclusive right to

designate Daughter’s primary residence within Frisco ISD’s attendance zone. He

4 additionally or alternatively requested that Daughter be required to attend Frisco ISD

schools based on his residence and that Mother be permanently enjoined from

removing Daughter (for the purposes of designating her residence) from Frisco ISD’s

attendance zone.

By the time of Father’s supplemental petition, Daughter was already two years

old, and thus the parties were under the Parentage Order’s possession schedule that

began when Daughter turned two. Father also sought to change that possession

schedule to alternating weeks, to change the Christmas holiday schedule to the

standard schedule under the Family Code, and to change the exchange times. He

alleged that the Parentage Order was “unworkable due to the gap in exchanges”: on

the weekends when he had Daughter, he had her for Wednesday and Thursday but

then was required to return her to Mother for a 9:00–3:00 period on Fridays before

having her for the rest of the weekend.

Father sought to decrease child support because of material and substantial

changes of “[t]he circumstances of the child or a person affected by the [Parentage]

[O]rder” and requested that Mother be ordered to pay 50% of the medical insurance

expenses. He also requested that the morality clause and right of first refusal clause be

deleted. Mother filed a counterpetition alleging a material and substantial change of

5 circumstances of Daughter, Father, or Mother. However, she nonsuited her

counterpetition the evening before trial.1

During the modification suit’s pendency, the trial court signed a temporary

order relating to possession and conservatorship. The order provided that Mother had

the exclusive right to designate Daughter’s residence “within ten (10) miles” of

Father’s house and that when Daughter reached school age, she had to attend school

in Frisco ISD. It further provided that rather than surrender possession at the other

parent’s residence, Mother and Father had to surrender possession at Adventure Kids

(a drop-in daycare) or at school, if Daughter was in school.

At trial, Mother, Father, Threats, Father’s employee, and two of Father’s

former girlfriends testified about the merits of the case; each party’s attorney testified

about legal fees. The trial court granted the modifications and signed the Modification

Order, awarding Father the exclusive right to determine Daughter’s primary residence

within Frisco ISD, an alternating weekly possession schedule during the school year, a

6:00 p.m. exchange time for out-of-school exchanges, and a standard Christmas

holiday schedule.

Mother retained the exclusive right to receive child support, but the trial court

reduced Father’s monthly child support to $1,282.95 after offsetting an amount of

support based on her income “because each party has equal possession of the child”

About a year before the trial, the case was transferred to a newly created Collin 1

County District Court, the 469th, effective September 1, 2015.

6 and also ordered Mother to pay Father cash medical support for reimbursement of

health insurance premiums at $171.82 per month.

The trial court issued findings of fact and conclusions of law that summarized

the evidence offered at trial, found “that there has been a material and substantial

change,” and summarized the modifications granted in the Modification Order.

Mother appealed.2

II. Standard of Review

We review the trial court’s modification of orders governing conservatorship,

possession, child support, and medical support for an abuse of discretion. In re T.D.C.,

91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g); see In re

J.E., No. 02-20-00105-CV, 2021 WL 2753550, at *8 (Tex. App.—Fort Worth July 1,

2 Because the Modification Order was rendered by a Collin County district court, Mother originally appealed to the Dallas Court of Appeals. See Tex. Gov’t Code Ann. § 22.201. That court dismissed Mother’s appeal for want of jurisdiction, holding that an interim memorandum had been the trial court’s final order and that Mother’s appeal was untimely. In re R.R.K., 581 S.W.3d 259, 262 (Tex. App.—Dallas 2017), rev’d, 590 S.W.3d 535 (Tex. 2019). The Texas Supreme Court reversed, holding that the trial court’s April 25, 2017 order was the final order and that the appeal was therefore timely. In re R.R.K., 590 S.W.3d at 544. The Supreme Court remanded the case to the Dallas Court of Appeals in January 2020. On remand, based on Daughter’s having lived in Denton County for at least six months, Mother filed a motion to enforce and motion to transfer. The Collin County district court transferred the entire case to Denton County. The Dallas Court of Appeals then decided that it no longer had jurisdiction over the remanded appeal of the Modification Order and directed Mother to file a motion to transfer the appeal to our court. Mother filed the motion, the Dallas Court of Appeals referred the motion to the Texas Supreme Court, and the Supreme Court transferred the appeal to our court under its general authority under the Government Code. See Tex. Gov’t Code Ann. § 73.001.

7 2021, pet. denied) (mem. op.) (applying standard to modification of possession); In re

R.M., No. 02-18-00367-CV, 2019 WL 2635566, at *3 (Tex. App.—Fort Worth June

27, 2019, no pet.) (mem. op.) (applying standard to modification of child support); In

re B.W.S., No. 05-15-01207-CV, 2016 WL 7163866, at *4 (Tex. App.—Dallas Nov.

28, 2016, no pet.) (mem. op.) (applying standard to modification of medical support);

In re A.B.H., 266 S.W.3d 596, 601 (Tex. App.—Fort Worth 2008, no pet.) (op. on

reh’g) (applying standard to modification of conservatorship). A trial court abuses its

discretion if it acts arbitrarily or unreasonably or does not analyze or apply the law

properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

Whether the evidence supporting the decision is legally and factually sufficient

is relevant in deciding whether the trial court abused its discretion. T.D.C., 91 S.W.3d

at 872. In determining whether an abuse of discretion has occurred because the

evidence is legally or factually insufficient to support the trial court’s decision, we

engage in a two-pronged inquiry: (1) did the trial court have enough information upon

which to exercise its discretion; and (2) did the trial court err in applying its discretion?

In re C.F., 576 S.W.3d 761, 773 (Tex. App.—Fort Worth 2019, no pet.). The

applicable sufficiency review comes into play in answering the first prong. Id.

Concerning the second prong of our abuse-of-discretion inquiry, we resolve, based on

the elicited evidence, whether the trial court’s decision was reasonable. Id. A trial court

does not abuse its discretion by basing its decision on conflicting evidence if some

evidence supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

8 2009); In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding); see In re E.P.C.,

381 S.W.3d 670, 688 (Tex. App.—Fort Worth 2012, no pet.) (en banc) (“The

evidence . . . is obviously conflicting, but we do not resolve the conflicts, for that is

within the factfinder’s province.”). “As conservatorship determinations are ‘intensely

fact driven,’ the trial court is in the best position to ‘observe the demeanor and

personalities of the witnesses and can ‘feel’ the forces, powers, and influences that

cannot be discerned by merely reading the record.’” In re J.J.R.S., 627 S.W.3d 211,

218 (Tex. 2021) (citations omitted).

In her two points, Mother challenges the factual sufficiency of the evidence

supporting the trial court’s decisions. When reviewing an assertion that the evidence is

factually insufficient to support a finding, we set aside the finding only if, after

considering and weighing all the pertinent record evidence, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the finding should be set aside and a

new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on

reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821,

823 (Tex. 1965). With respect to the trial court’s findings of facts and conclusions of

law, they have the same force and dignity as a jury’s answers to jury questions.

Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). As with jury findings,

a trial court’s fact-findings on disputed issues are not conclusive, and, when (as here)

the appellate record contains a reporter’s record, an appellant may challenge those

9 findings for evidentiary sufficiency. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994); Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 126 (Tex. App.—Fort Worth

2016, no pet.). We review the sufficiency of the evidence supporting challenged

findings using the same standards that we apply to jury findings. Catalina, 881 S.W.2d

at 297.

III. Substantive Law

A. Conservatorship and Possession

A court with continuing, exclusive jurisdiction over matters involving a child

may modify an order that provides for the conservatorship of, or possession of and

access to, that child if a preponderance of the evidence satisfies two grounds: a

threshold statutory requirement and the child’s best interest. Tex. Fam. Code Ann.

§ 156.001; see id. §§ 105.005, 156.101(a); In re F.A., No. 02-16-00156-CV,

2017 WL 632913, at *3 (Tex. App.—Fort Worth Feb. 16, 2017, no pet.) (mem. op.).

First, to meet the “threshold requirement,” the movant must satisfy one of

three statutory elements. In re C.A., No. 10-16-00351-CV, 2021 WL 409621, at

*8 (Tex. App.—Waco Feb. 3, 2021, no pet.) (mem. op.); see also Tex. Fam. Code Ann.

§ 156.101(a). In this case, Father was required to prove that his, Mother’s, or

Daughter’s circumstances had “materially and substantially changed since” July 20,

2014, the date the MSA was signed. Tex. Fam. Code Ann. § 156.101(a)(1)(B); see J.E.,

2021 WL 2753550, at *3; In re A.J.L., No. 14-16-00834-CV, 2017 WL 4844479, at

*3 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.) (mem. op.); cf. In re

10 Marriage of Harrison, 557 S.W.3d 99, 139 (Tex. App.—Houston [14th Dist.] 2018, pet.

denied) (op. on reh’g) (upholding trial court’s modification in final decree of interim

order based on MSA because evidence showed a material or substantial change in

circumstances occurred after the signing of the MSA). One policy behind this

requirement is “preventing constant re[ ]litigation with respect to a child.” Obernhoff v.

Nelson, No. 01-17-00816-CV, 2019 WL 4065017, at *20 (Tex. App.—Houston [1st

Dist.] Aug. 29, 2019, no pet.) (mem. op.); Smith v. Karanja, 546 S.W.3d 734, 738 (Tex.

App.—Houston [1st Dist.] 2018, no pet.); see also In re A.L.E., 279 S.W.3d 424,

428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Another is to “create stability in

the conservatorship.” In re H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at

*4 (Tex. App.—Houston [14th Dist.] Mar. 12, 2019, no pet.) (mem. op.).

To determine whether a material and substantial change of circumstances has

occurred when the parties had an MSA, the trial court compares the evidence of the

conditions that existed at the time of the MSA’s signing with the evidence of the

existing conditions at the time of the modification trial. See Tex. Fam. Code Ann.

§ 156.101(a)(1); cf. In re W.C.B., 337 S.W.3d 510, 514 (Tex. App.—Dallas 2011, no

pet.) (stating in non-MSA case that starting point is the date of the order to be

modified and ending point is the modification trial). The law does not prescribe any

particular method for showing changed circumstances, and they may be established by

circumstantial evidence. In re E.A.D.P., No. 05-15-01210-CV, 2016 WL 7449369, at

*2 (Tex. App.—Dallas Dec. 28, 2016, no pet.) (mem. op.); A.L.E., 279 S.W.3d at 429.

11 A factfinder is not confined to rigid or definite guidelines; instead, the determination

is fact specific and must be made according to the circumstances as they arise. In re

E.M., No. 02-18-00351-CV, 2019 WL 2635565, at *6 (Tex. App.—Fort Worth June

27, 2019, no pet.) (mem. op.); A.L.E., 279 S.W.3d at 428. The statute “does not

require a showing of a negative effect from the material and substantial change in

circumstances, and the overriding best[-]interest[-]of[-]the[-]child standard takes into

consideration whether a modification order is appropriate.” In re J.J.L., Jr., No. 04-12-

00038-CV, 2012 WL 3985798, at *1 (Tex. App.—San Antonio Sept. 12, 2012, no pet.)

(mem. op.); see also In re J.R.L., No. 04-19-00049-CV, 2020 WL 2543315, at *3 (Tex.

App.—San Antonio May 20, 2020, no pet.) (mem. op.).

The second and main ground that a movant must prove is that the

modification is in the child’s best interest. Tex. Fam. Code Ann. § 156.101(a); In re

A.E.A., 406 S.W.3d 404, 409 (Tex. App.—Fort Worth 2013, no pet.). “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.

Courts may use a nonexhaustive list of factors to determine a child’s best

interest. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); T.D.C., 91 S.W.3d at

873. Those factors include:

(A) the [child’s] desires . . . ;

12 (B) the [child’s] emotional and physical needs[,] . . . now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the [child’s] best interest . . . ; (F) the plans for the child by these individuals . . . ; (G) the stability of the home[s]; (H) the [parent’s] acts or omissions . . . indicat[ing] that the existing parent–child relationship is not a proper one; and (I) any excuse for the [parent’s] acts or omissions. Holley, 544 S.W.2d at 371–72 (citations omitted). Other factors to consider in

modification suits include the child’s stability and the need to prevent constant

litigation in child-custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

B. Child Support and Medical Support

In this case, because both parties agree that the child support awarded in the

Parentage Order was above the statutory guidelines, the trial court could modify the

order only if the circumstances of Mother, Father, or Daughter had materially and

substantially changed since the date of the Parentage Order’s rendition, 3 see Tex. Fam.

Code Ann. § 156.401(a-1), and only if the modification was in Daughter’s best

3 Neither party asserts, and nothing in the record suggests, that the trial court’s ruling in the original parentage proceeding was made orally in court or in some other pre-Parentage-Order writing. See Tex. Fam. Code Ann. § 101.026. Accordingly, the Parentage Order was rendered when the trial court signed it. See id.

13 interest. See id. § 156.402; see also Iliff, 339 S.W.3d at 81 (“[I]n child support decisions,

the ‘paramount guiding principle’ of the trial court should always be the best interest

of the child.”); In re of S.C., No. 02-17-00377-CV, 2018 WL 5289370, at *3 (Tex.

App.—Fort Worth Oct. 25, 2018, no pet.) (mem. op.). Father had the burden to show

a material and substantial change in circumstances. See In re K.F., No. 02-18-00187-

CV, 2018 WL 6816119, at *4 (Tex. App.—Fort Worth Dec. 27, 2018, pet. denied)

(mem. op.); In re P.C.S., 320 S.W.3d 525, 530 (Tex. App.—Dallas 2010, pet. denied).

To determine whether Father met his burden, the trial court had to compare the

circumstances at the time of the Parentage Order with those at the time he sought

modification. See In re K.F., 2018 WL 6816119, at *4; In re Moore, 511 S.W.3d 278,

283 (Tex. App.—Dallas 2016, no pet.); In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—

Dallas 2008, no pet.).

IV. Analysis

In her first point, Mother contends that the trial court abused its discretion by

modifying the Parentage Order regarding conservatorship, possession, child support,

and medical support because the evidence was factually insufficient to show a material

and substantial change in the parties’ circumstances. In her second point, she

contends that the trial court abused its discretion by modifying the Parentage Order

because the evidence was factually insufficient to show that the modifications were in

Daughter’s best interest.

14 A. Changing the Terms of Possession

1. Material and Substantial Change

Sufficient evidence supports the trial court’s possession modification. Father

testified that Daughter has a hard time with the exchanges and becomes upset when

being dropped off at Adventure Kids, the daycare exchange location. When they first

started the drop-offs, Father would have to spend ten or fifteen minutes “trying to

literally pry [Daughter] off [his] neck.” As Daughter got a little older, Father could

“communicate and talk to her” about what was happening, but he testified that

nevertheless the drop-offs were “still a challenge.” During the drop-offs, Daughter

cries and makes statements that she does not want him to leave and does not want to

go to Mother, and Father thought that Daughter probably had the same difficulties

when it was Mother’s turn to drop off Daughter. Mother had previously expressed to

Father that Daughter had a hard time with the schedule; text messages that Father

introduced as exhibits included a text from Mother in which she told Father that

Daughter had “thr[own] a massive fit when I tried to get her ready and didn’t want to

leave. Poor thing cannot even get settled in one home before she is shipped off to

another.” Father estimated that changing to a week-on/week-off schedule would

“eliminate upwards to two or three hundred drop-offs between now and the time

[Daughter] goes to school.”

Father also testified that both parents had found the possession periods in the

Parentage Order to be confusing and that consequently they had both accidentally

15 violated the order. Father also asserted that he and Mother had recurring conflicts and

difficulty communicating and thus had difficulty coparenting amicably, and evidence

of that kind of conflict can show a material and substantial change for purposes of

modifying the possession schedule. See, e.g., In re C.M.C., No. 05-15-01359-CV,

2016 WL 7166415, at *6 (Tex. App.—Dallas Nov. 9, 2016, no pet.) (mem. op.).

To support his contention that he and Mother had conflict and that changing

the possession schedule would reduce that conflict by reducing the number of times

they needed to communicate, Father introduced copies of text messages exchanged

between the two that were sent in August 2015. The messages began when Daughter

vomited after Mother picked her up for her possession. Mother sent Father a text in

which she asked what he had fed Daughter and stated that “[t]his is why [she]

want[ed] [Father] to drug test”—because he “do[es]n’t make good decisions ever with

[his] life or [Daughter’s]. So irresponsible!” She then accused him of living “the party

lifestyle” and told him, “That’s more important to you th[an] anyone including

[Daughter]. Sad, I knew you would be this kind of dad.” Father then replied with a

message informing Mother about what he had fed Daughter (“chicken potatoes and

mac & cheese” and a “snack of raisins and a glass of milk”) and telling her to let him

know if she needed him to do anything or to go get Daughter. In response, Mother

told him to meet her at the hospital. When he asked why she was taking Daughter to

the hospital, she responded, “I’ll take care of it, [Father]! You will never be a family

first guy! EVER! Your plans are always more important. . . . I’ve know[n] you were a

16 party guy for three years—shouldn’t have ever expected anything different from

you . . . .” Father told Mother that he was at his homeowner’s association’s board

meeting and sent her a picture of himself at the meeting to prove it. Mother accused

him of lying about being at the meeting, insinuated that the picture was an old picture,

and stated, “[Daughter] always gets sick when she is with you and I always care for

her. . . . I’m selfless. That’s what parenting is, [Father]. You don’t have the first clue or

desire to be a selfless parent. Everything is always about you.” Father testified that

these texts were an example of what “our typical communication is like” and that his

requested changes to the possession schedule would reduce his and Mother’s

“constant arguments or disagreements.”

Father has also been a source of conflict. For example, in a September

2015 OFW message to Mother, after Mother did not agree to amend the Friday

exchange time set in the Parentage Order, Father accused Mother and her attorney of

“lies and manipulation” by drafting a Parentage Order with a possession schedule that

he had not agreed to in mediation, despite the fact Father had, in fact, agreed to that

possession schedule in the MSA and in the Parentage Order. In 2014, Father also

chose to take Daughter out of town for Christmas, despite Mother’s having

possession on Christmas Eve, which violated the Christmas possession schedule—in

a December 23 email, he informed Mother that he had taken Daughter to Amarillo

and that she would have to come get Daughter if she wanted to see her for her

visitation, despite the Parentage Order’s requiring exchanges to occur at the parents’

17 residences—but he blames Mother for the conflict between the two that arose from

that violation.4 In other words, both parents caused conflict with the other when they

interacted. Because the possession schedule gave the parents frequent reason to

interact with each other, it provided a continual source of conflict. 5

Additionally, since the Parentage Order’s rendition, Father’s father

(Grandfather) had been diagnosed with Alzheimer’s, and Father wanted to take

Daughter to Oklahoma to visit Grandfather while he still remembered her. Under the

Parentage Order’s possession schedule, Father had Daughter on Wednesdays and

Thursdays, returned her to Mother at 9:00 a.m. on Friday, and, on the weekends that

he had possession, picked Daughter back up at 3:00 p.m. With that schedule, he could

not take Daughter on long weekend trips to see Grandfather, whereas under a week-

on/week-off schedule, Father could take her with him to Oklahoma on Wednesday

and return on Sunday.

Father testified in the trial court that the Christmas possession provision and 4

other possession terms were confusing, but from his testimony, his confusion seemed to be less from the possession provisions’ language and more about why he had agreed to an order containing terms that he did not like. 5 We do not suggest that a party can simply instigate a conflict over a possession order and then use that conflict as the basis to obtain a modification, allegedly for the purposes of resolving the very conflict that the party created. However, in this case, it is clear that both parties instigate and participate in the conflict between them, and the Parentage Order and their respective possession periods are primary drivers of that conflict in that they give the parties something to argue about and more reasons to interact with each other.

18 Mother argues that although spending time with a loved one is “clearly

important in all lives,” Grandfather’s Alzheimer’s diagnosis was not a material and

substantial change. She further asserts that Grandfather is not affected by the order

and thus a change to his health does not qualify as a material and substantial change.

See Tex. Fam. Code Ann. § 156.101 (allowing order’s modification when there is a

change to a child or person affected by order). But Father and Daughter are affected

by both the order and Grandfather’s illness. We decline to hold that the trial court

abused its discretion by modifying possession so that Daughter can spend more time

with Grandfather while she still had the opportunity to have a relationship with him.

Given Grandfather’s new Alzheimer’s diagnosis, the recurring conflicts

between Father and Mother (in general and specifically over the Parentage Order’s

possession terms), and Daughter’s difficulties with the exchanges, we cannot say that

the evidence supporting the trial’s material-and-substantial-change finding is so weak

or so contrary to the overwhelming weight of all the evidence that it should be set

aside and a new trial ordered. We overrule the part of Mother’s first point challenging

the possession modification.

2. Best Interest

For the same reasons, the evidence was factually sufficient to support a finding

that the possession modification was in Daughter’s best interest. The modified

possession schedule change would allow her to spend more time with Grandfather

while he could still recognize her; the court heard evidence that the exchanges under

19 the existing schedule were consistently difficult for Daughter; and the parents had

ongoing conflicts about the schedule and the Parentage Order—conflicts that

interfered with their ability to amicably coparent Daughter—many of which would be

resolved under the modified schedule. We overrule the part of Mother’s second point

challenging best interest as to the possession modification. See B.W.S.,

2016 WL 7163866, at *3–4 (stating that by eliminating the mother’s possession for

religious holidays, “the trial court also eliminated an area in which the parents had to

seek consensus concerning possession and access to the child”); see also Holley,

544 S.W.2d at 371–72 (stating child’s emotional needs is a factor to consider in best

interest); cf. In re M.R.H., No. 13-15-00516-CV, 2016 WL 8919846, at *3 (Tex. App.—

Corpus Christi–Edinburg Dec. 21, 2016, no pet.) (mem. op.) (holding in appeal of

conservatorship modification that trial court could have found a material substantial

change in parties’ ability to effectively coparent following divorce decree).

3. Christmas Possession

In addition to complaining about the change to the week-on/week-off

schedule, Mother additionally complains that the trial court modified the Christmas

visitation schedule to which the parties had previously agreed. Father asked to change

the Christmas possession schedule to the standard Christmas possession schedule

because the existing schedule prevented him from taking Daughter to spend

Christmas with his family out of town on the years when he had Christmas

possession. Mother argues that the only evidence Father presented at trial of a

20 material and substantial change to justify the modification was that “he didn’t

understand the terms and that he had already been held in contempt for violating the

provision the year before.” However, the evidence showed that the Christmas

possession schedule, like other parts of the possession schedule, had become a source

of conflict between the parents. This conflict about the schedule is a material and

substantial change since the Parentage Order. As we have discussed, eliminating

exchanges between the parents also eliminates opportunities for conflict between

them in the future, which the trial court could have found was in Daughter’s best

interest. See B.W.S., 2016 WL 7163866, at *3–4. We overrule this part of Mother’s first

and second points.

B. Conservatorship: Changing the Parent Who Holds the Exclusive Right to Determine Daughter’s Primary Residence

1. Material and Substantial Change

In the section of Mother’s brief relating to conservatorship, she addresses only

the question of whether her move could constitute a material and substantial change.

Mother asserts that Father’s only reason for seeking the conservatorship modification

was to be able to control where Daughter went to school and that therefore “[t]he

question . . . is does [Mother’s] move from Little Elm, to the city of Prosper . . . about

ten miles away, constitute a material and substantial change justifying changing the

exclusive right to determine the primary residence from [Mother] to [Father]?” The

relevant question, however, is not so narrow. We consider the broader question of

21 whether the trial court had factually sufficient evidence to find a material and

substantial change justifying a change in the primary conservator. As we discuss, other

bases supported the trial court’s modification designating Father as the parent with

the exclusive right to determine Daughter’s primary residence.

A parent’s attempt at alienating the child from the other parent is a material

and substantial change that supports conservatorship modification. In re A.L.E.,

279 S.W.3d at 428–29 (including “poisoning of the child’s mind by one of the parties”

in list of material changes); see also 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 hampers a child’s opportunity to

associate favorably with the other parent may suffice as grounds for re-designating

managing conservators.”). Further, a trial court may consider the factors listed in

Texas Family Code Section 153.134 in ruling on a conservatorship modification

petition, and one of those factors is “whether each parent can encourage and accept a

positive relationship between the child and the other parent.” Tex. Fam. Code Ann.

§ 153.134; see In re J.S., No. 05-16-00138-CV, 2017 WL 894541, at *3 (Tex. App.—

Dallas Mar. 6, 2017, no pet.) (mem. op.). Here, Father produced evidence that Mother

made remarks to Daughter that could interfere with Daughter’s ability to have a

positive relationship with Father.

Father testified that quite often at Daughter’s doctor’s visits, when Father walks

in, Mother makes statements in front of and to Daughter that he did not love or want

22 to see Daughter. Mother has made statements such as, “Why are you here? You’re a

deadbeat dad. You don’t need to be here” and “[Daughter], your dad doesn’t love

you. His own mom didn’t love him and that’s why she gave him away for adoption.”

Father did not state exactly when these doctor’s visits occurred, but his statements

were made in the context of discussing occasions when Mother had violated the

Parentage Order’s provision that enjoined each parent from disparaging the other

parent to or in front of Daughter, thus indicating that they had occurred after the

Parentage Order’s signing. See Epps v. Deboise, 537 S.W.3d 238, 246 (Tex. App.—

Houston [1st Dist.] 2017, no pet.) (considering parent’s argument that her actions did

not show a change after entry of agreed order and stating that because the

complained-of actions were about violations of the prior order, they “necessarily arose

after the entry of the agreed order”).

Father also discussed an uninvited visit by Mother to Father’s house

approximately one month before trial. When Father answered the door, Mother tried

to enter his house—leaving Daughter asleep in the car—to talk to him about the

upcoming trial. Father closed the door after asking her multiple times to leave. Mother

then went to the car, woke up Daughter, carried her back to Father’s door, and

knocked on the door, and tried to enter the house, saying “Daddy, open up. Daddy,

open the door” and “Why aren’t you coming to the door, Daddy? I don’t know why

he doesn’t want to answer.” Father felt that Mother making those statements to three-

year-old Daughter indicated to Daughter that Father did not want to see her.

23 In her testimony, Mother did not deny that she went to Father’s house, but she

claimed that it was Daughter who knocked on the door and was “pressing on the

button to get in.”6 In Mother’s version of events, however, she still showed up

uninvited, woke up Daughter after Father would not let Mother in the house or speak

to her, brought Daughter up to the door—which led Daughter to knock on the door

so that she could go inside—and made statements to Daughter suggesting that Father

was home but did not want to open the door to Daughter. The trial court could have

found that in that instance, Mother was suggesting to Daughter that Father was

refusing to see her. The court could further find that Mother was using Daughter to

try to force Father to talk to her and, from that fact and Mother’s suggesting to

Daughter on other occasions that Father does not love her or support her, the court

could conclude that Mother did not prioritize Daughter’s welfare. Cf. Tex. Fam. Code

Ann. § 153.134(a)(2) (stating that in deciding conservatorship, court may consider

“the ability of the parents to give first priority to the welfare of the child and reach

shared decisions in the child’s best interest”).

Father also introduced a series of text messages that Mother sent him in

summer 2015, which further indicate that Mother had negative feelings toward Father

that affected her ability to engage in effective parenting communications with him.

Mother testified that her bringing Daughter to the door was not after Father 6

had told her to leave, but when asked again if it happened after he told her to leave, she changed her answer to “Possibly.”

24 Many of the (long) texts included complaints about Father’s attitude toward her and

insinuated that his failure to sufficiently appreciate or respect her was also indicative

of a lack of caring about Daughter. In addition to the messages discussed above, other

messages in the record contained statements like “WE are ALWAYS on the bottom

of you[r] [priority] list,” “I do not feel that you respect me or value me as a person or

as [Daughter]’s mother. I cannot talk to you anymore because I deserve better and so

does [Daughter],” “I am just tired of feeling devalued, unloved (not in a romantic way,

but as the mother of our daughter) by you,” and “Your opinion of me has mattered a

great deal to me and every time you reject me, as [Daughter’s] mother or even a friend

it breaks my heart.” In other words, Mother seemed to become upset—and, as

relevant here, to send Father long, unhappy text messages—when she felt that Father

did not make her a priority in his life.

Many of the texts included personal slights against Father; for example, she

referred to him as “emotionally unstable” and told him, “You are a taker, you are a

cancer to me—you suck all that is good in me out.” After she learned that Father was

dating a very recently divorced woman named Caroline,7 she sent him texts

questioning his integrity.8 She told him, for example, “I don’t trust you or your

Caroline testified that she and her husband separated in February 2015, that 7

she met Father in May 2015 and started dating him in June 2015, and that by the time she and Father started their relationship, she was already divorced.

Father also displayed a willingness to accuse others of a lack of integrity. In 8

addition to the accusation of “lies and manipulation” by Mother and her attorney

25 judgement or even the people you choose to invest your time in.” After reviewing

analytics about interactions on her Instagram account, Caroline noticed that Mother

was consistently monitoring her account. Caroline testified at trial that she had a

feeling that she “was being watched” because when she posted on social media about

spending time with Father, Father would get “very vocal” messages from Mother,

which Caroline described as “harsh, kind of intense, coming at him, accusing him of

things. . . .” Father or someone else apparently said something to Mother about her

monitoring Caroline’s social media because Mother sent Father a text saying that she

got her updates from “people we both know,” not from Caroline’s account, so “[s]he

doesn’t need to block me, but thank you for telling her all our business. She is a home

wrecker. And shame on her for being married. She has no respect for herself [or] for

her daughter.” She continued by saying, “It’s no surprise that you[’re] dating a married

woman. Unhealthy attracts unhealthy,” and “I feel completely betrayed by you.

Completely. Just shows me even more the amount of respect you have for me and

[Daughter]. You are not a loyal person at all.” Other statements in Mother’s messages

about Caroline included her telling Father, “You dragged me through your unhealthy

and emotionally unstable, manipulative, twisted sick life. It’s absolutely no surprise

that an emotionally unstable and emotionally unavailable person chooses a woman to

mentioned above, Father also stated in his testimony at trial that Mother’s attorney had made false accusations of drug use against Father in earlier court filings. From the context of Father’s testimony, Father appeared to be suggesting that the attorney had filed motions with the trial court that he knew to be false.

26 date [who] is married,” and “The best thing you have ever done for me outside of

[Daughter] is choosing to date a woman [who] is married. It answered all my

questions about you.” In these messages, Mother also told Father, “Do not contact

me again. I don’t need you in my life to be an effective parent and role model for

[Daughter]” and “We do not need to ‘co-parent’ to properly parent [Daughter]. I

think the last two years have been proof that us not communicating is not affecting

her at all. . . . Please stay away from me and do not contact me again.”

The events that prompted these emotional messages from Mother are mostly

unexplained; Father’s text messages were generally mundane, innocuous messages

about exchanging Daughter. If Father had other communications with Mother that

contradicted statements that he had made in the text messages—and some messages

from Mother hinted that that might be the case—nothing in the messages or other

trial evidence provided that detail.

On their own, these messages do not necessarily indicate that Mother does not

prioritize Daughter’s welfare, and as discussed above, Father was also not above

name-calling. However, combined with Mother’s actions around Daughter in which

she denigrated Father, Mother’s messages suggest a continuing pattern of Mother’s

prioritizing her negative feelings about Father and her desire to express those

feelings—sometimes in front of or to Daughter9—in a way that made it difficult for

We found only one instance in the record indicating that Father might also 9

denigrate Mother in front of Daughter; in an OFW message, Mother accused Father

27 her to make shared decisions about Daughter with Father. Although the evidence is

not overwhelming, considering the above evidence, we cannot conclude that the

evidence was factually insufficient such that the trial court abused its discretion by

finding a material and substantial change or in naming Father as the conservator with

the exclusive right to determine Daughter’s primary residence. See Champenoy,

2013 WL 3327328, at *4.

Mother additionally asserts that because the trial court’s order required the

exchanges to take place at Adventure Kids, the parents no longer needed to drive to

and from each other’s residences. To the extent that this is an argument that this

exchange place eliminated conflict and therefore no change in primary conservator

was necessary, we disagree. The Adventure Kids drop-off location was only in a

temporary order in this modification proceeding and was not in the Parentage Order.

We overrule this part of Mother’s first point.

2. Best Interest

Factually sufficient evidence also supported the trial court’s determination that

the conservatorship modification was in Daughter’s best interest. From the record,

both parents clearly have strong, opposing views on custody and possession issues,

of “trashing” her to the Adventure Kids manager in front of Daughter and “calling [her] crazy in front of [Daughter].” Mother did not testify about that matter at trial, and even if the trial court accepted that allegation as true, it was the only evidence at trial of any disparaging remarks made by Father about Mother in front of Daughter and does not indicate that Father had told Daughter that Mother did not love her.

28 each parent dislikes the other, and both are willing to express that dislike to the other.

However, from the evidence before the trial court, between the two parents, Father

appeared somewhat better able to stay calm and avoid making personal attacks in their

communications with each other, has not suggested to Daughter that the other parent

does not love her, and has not used Daughter as a tool to force an interaction with the

other parent. On that basis, the trial court could have found that the conservatorship

modification was in Daughter’s best interest. See Holley, 544 S.W.2d at 371–72.

C. Changing Child Support and Medical Support

1. Evidence Supporting Change

Finally, factually sufficient evidence supports the trial court’s modification of

Father’s monthly child support obligation. Mother makes much of the fact that the

trial court apparently did not agree with Father’s testimony about his current income

because the court found that Father’s monthly gross income was $11,264.

Nevertheless, even that monthly income shows a material and substantial change.

As Father points out, his 2014 federal income tax showed his total income (i.e.,

before deductions and exemptions) was $156,622, from which the court could have

concluded that his gross monthly income was approximately $13,051 a month.

Accordingly, accepting the trial court’s finding of Father’s 2016 monthly gross

29 income, 10 Father’s income had decreased by about $1,780 a month, or a little over

$21,000 a year.

Father, who operates a real estate practice affiliated with Keller Williams,

testified that his real estate practice had become less profitable. He testified that since

2014, he had an employee leave, and thus his practice had one less person earning

commissions. He also stated that his business has faced increased pressure from

online listing sites like Zillow, which used to generate clients for him but now

competes for them. A temporary slump in income is not a material and substantial

change, but “a marked decrease in income or steady decline without offsetting

circumstances” is. Plowman v. Ugalde, No. 01-14-00851-CV, 2015 WL 6081666, at

*4 (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, no pet.) (mem. op.). Here, Father

testified that he anticipates that the competition from online listing sites will result in

continued decreases in revenue in the future. He also testified that because of a

10 Although Mother argues that Father’s 2015 tax return was not evidence of his income in 2016 and that Father’s bank statements and a profit-sharing statement indicated that his income was higher than he claimed, she does not specifically challenge the trial court’s finding that his current gross income was $11,264. To reach this number, as we discuss below, the trial court had evidence of Father’s 2015 federal income tax return, Father’s testimony that his business continued to face pressure from online listing sites, that he had fewer employees generating profit than he previously had, and that he had had to borrow money from his parents and take out a loan. The court also had the report showing the profit-sharing Father received in 2014, 2015, and 2016 from Keller Williams and testimony about personal expenses that Father paid out of his business account. From this evidence, the trial court could have concluded that Father’s current income was higher than Father claimed but was nevertheless lower than the evidence reflecting Father’s 2014 income.

30 housing shortage since 2014, property sellers receive multiple offers that result in

bidding wars over the properties. Buyer clients lose “two, three, four different times”

before successfully buying a home, requiring agents to spend more time on helping

them find a property. While presumably bidding wars would mean that the agents’

commissions are higher, they have to spend “many more hours” to earn that

commission. The trial court could have determined that post-Parentage Order

changes, which the parties had not anticipated at the time of the order, had caused

Father’s real estate business to become less profitable. See In re Moore, 511 S.W.3d 278,

284 (Tex. App.—Dallas 2016, no pet.) (holding that the evidence showed that,

although the mother anticipated when she signed the support agreement that her

income would fluctuate, she did not anticipate a steadily decreasing income).

Father also testified about his part ownership of businesses that hold rental

properties. His tax returns also show that those businesses generated less profit in

2015 than they did in 2014, which Father explained as being the result of those

businesses owning fewer properties than they did in 2014.11 See Plowman,

2015 WL 6081666, at *4.

Mother points to evidence of a statement showing the profit-sharing Father

had received from Keller Williams. That document showed that Father’s 2016 year-to-

11 Father testified that the income from those properties is passive income that is put back into the businesses. He also stated that as a minority owner of those businesses, he has no authority to compel profit distributions, a statement that the trial court could choose to believe or not believe.

31 date income from profit-sharing was a little over $2,000 higher than his income for

the same period in 2014, and Mother argues that this evidence shows that Father’s

income had increased since the Parentage Order. The profit-sharing document

corroborated Father’s testimony that his business suffered a decline after the

2008 market crash, but it also showed that his profit sharing increased in 2014 back to

the same amount it was in 2007—suggesting that Father had perhaps exaggerated

slightly when he testified that profitability for agents in the real estate business was

inexorably declining. However, even if Father’s profit-sharing had increased in 2016,

profit-sharing represented only a small part of Father’s income. The trial court had

other evidence from which it could conclude that, overall, Father’s personal income

from the business, as well as from the rental property businesses, had declined.

Further, Father testified that although his business bank records suggest that

his business has grown since 2014, his personal income from it has not. He explained

that after he learned that Mother was pregnant, he hired more employees, and thus

the total amount of commissions brought into the business has increased, but the

commissions then must be paid out to those employees. Father receives only a

portion of those agents’ commissions, and his share pays the business’s expenses.

Father testified that his income from the business is less than most of his agents.

Mother next asserts that Father produced no evidence of his income at the

time of the MSA because at mediation, he had relied on a document showing the

gross income of his entire real estate practice rather than his personal income. That

32 document was not admitted at the modification trial. However, even if it had been,

Mother cites no authority for the proposition that the trial court was limited to

considering the evidence that the parties possessed at mediation and could not

consider other evidence to determine what Father’s income was at the time of the

Parentage Order. We are not persuaded that the trial court could not use Father’s

2014 income tax return to determine Father’s income at the time of mediation. See,

e.g., Tex. Fam. Code Ann. §§ 154.061, 154.063; Swaab v. Swaab, 282 S.W.3d 519,

526 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.) (fluctuating income

can be averaged for purposes of determining child support); McGuire v. McGuire,

4 S.W.3d 382, 387 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (using prior tax

return to determine income at time of prior order).

Mother further argues that although Father produced his 2015 federal income

tax return to establish that his income had decreased, that return did not show his

income at the time of trial in late 2016. However, from Father’s testimony that his real

estate practice was on a downward trend and that his rental property businesses had

fewer properties than they once had, the trial court could have found that Father’s

income from his businesses had not improved since the prior year. The trial court also

had evidence of personal expenses Father paid from his real estate business’s bank

account in 2016, which it could have also used in its calculations. For example,

Father’s employee testified that Father paid his child support out of that account, and

Mother introduced an email from the employee to Father listing the other expenses

33 that Father had paid out of the account, at least some of which the trial court could

have included in calculating Father’s income.12 Further, the trial court also had

evidence regarding Father’s 2016 monthly bank balances for the months before trial.

Mother next argues that Father’s personal banking records revealed a higher

income than Father alleged, pointing out that his bank records revealed that he had

$72,827 in deposits in 2015, which does not square with the $34,100 Father listed as

his wages from his real estate business in his 2015 income tax return. However, Father

explained that $15,000 in the account came from a loan from his parents and around

$24,000 came from a loan he obtained using his rental businesses’ equity as collateral.

In summary, from the evidence of Father’s tax returns and profit-sharing

statement, Father’s testimony about the state of his businesses, the evidence about

Father’s personal expenses paid through his business account, and the evidence about

Father’s personal bank records, the trial court could have determined that Father’s

income in 2016 was more than he claimed but still materially less than it had been at

the time of the Parentage Order. Accordingly, the evidence was factually sufficient for

the trial court to find a material and substantial change in Father’s financial

circumstances that warranted reducing Father’s child support obligation. We overrule

the part of Mother’s first point challenging that part of the Modification Order.

12 Father also testified that he also pays his monthly car payment out of the business account.

34 2. Mother’s Support Obligation

With respect to the part of the order assessing support against Mother and

offsetting that amount against Father’s support obligation, however, we agree with

Mother that the evidence is factually insufficient to support it. In the Modification

Order, the trial court stated that it was ordering the offset “because each party has

equal possession of the child”; the trial court did not make any specific finding,

however, about a material and substantial change to either Mother’s or Father’s

financial circumstances. Father argues, however, that Mother’s new job constitutes a

material and substantial change in her financial circumstances. Neither the

50/50 schedule nor Mother’s new job can support the trial court’s decision.

First, Father did not establish that switching to a 50/50 possession schedule

was an event that was unanticipated at the time of the Parentage Order. In one of the

OFM messages Father sent to Mother in the month before the modification trial, he

stated that he had agreed to that amount of support in part because he believed that

he and Mother could “re-evaluate those numbers” once the possession schedule

changed to 50/50.13 However, regardless of what Father believed he could persuade

the trial court to do in the future, the Parentage Order (1) provided for what was

essentially a 50/50 schedule when Daughter turned two and (2) did not provide for

any downward adjustment in the support amount when that occurred. Thus, the

For some reason, he also sent one of his employees an email with this same 13

information.

35 Parentage Order already contemplated Father having daughter for half the time when

she turned two, and it provided for what would happen to Father’s support obligation

once that occurred: nothing.14

Second, for Father to assert that Mother’s financial circumstances were

changed by getting a job, Father had to establish Mother’s financial circumstances

both at the time of the Parentage Order and at the time of modification. 15 See In re

14 Technically, for the period of time after Daughter turned two but before she started school, Mother had Daughter for six hours a week more than Father because she had Daughter from 9 a.m. to 3 p.m. on the Fridays on which Father’s weekend possession began. However, once Daughter started school, she would be in school for those six hours. In their messages introduced at trial, both parents referred to the schedule as 50/50 possession; Father’s pleadings and discovery responses asserted that the schedule was a 50/50 split; Father testified that after the Parentage Order’s entry he believed they had a 50/50 possession schedule; and Mother recognizes in her brief that the schedule was essentially 50/50, indicating that both parents considered the Parentage Order’s possession schedule to be a 50/50 split. Granting Father an extra six hours a week for the few years before Daughter started school, with no evidence that having Daughter for those extra six hours resulted in a change in the level of services or financial support Father provided to Daughter, is not a material and substantial change that would justify the support modification. Cf. In re Z.B.P., 109 S.W.3d 772, 781–82 (Tex. App.—Fort Worth 2003, no pet.) (holding that a material and substantial change occurred because the children had begun living with father instead of mother during the week, and thus mother was no longer furnishing degree of services to the children that she did at the time of divorce and father was furnishing more), disapproved of on other grounds by Iliff, 339 S.W.3d 74. 15 Generally, a circumstance anticipated by the parties at the time of the prior order cannot constitute a material and substantial change, and, thus, if the trial court had determined that Mother’s getting the kind of job she did was a circumstance anticipated by the parties at the time of Parentage Order, it could not find that the job was a material and substantial change. See In re H.N.T., 367 S.W.3d 901, 905 (Tex. App.—Dallas 2012, no pet.) (holding mother’s move was not material and substantial change because it was an anticipated circumstance at time of divorce decree). The trial court made no finding on the matter.

36 J.C.J., No. 05-14-01449-CV, 2016 WL 345942, at *7 (Tex. App.—Dallas Jan. 28, 2016,

no pet.) (mem. op.) (stating that to modify support, there must be historical and

current evidence of the relevant person’s financial circumstances); In re C.C.J.,

244 S.W.3d at 918 (noting that the record had evidence of mother’s financial

condition at the time of the modification hearing but not of her condition at divorce).

To establish a change in Mother’s financial condition, Father relied on the fact that

she had been unemployed at the time of the Parentage Order. However, that was

Father’s only evidence of Mother’s financial condition at the time. He did not, for

example, testify that at that time, Mother had no other resources or assets from which

she could have paid child support. See Plowman, 2015 WL 6081666, at *5 (“Trial courts

look not only to a paying parent’s salary, but also to other sources of income.”).

Further, other than her current salary, there was no evidence of Mother’s financial

condition at the time of trial. Nothing showed whether, with her job, she has more

resources—or even adequate resources—to support herself and Daughter than she

did at the time of the Parentage Order. See In re J.C.J., 2016 WL 345942, at *7; C.C.J.,

244 S.W.3d at 918. Accordingly, Father failed to establish that Mother’s new job is a

material and substantial change. Cf. In re C.F.M., No. 05-17-00141-CV,

2018 WL 2276351, at *3 (Tex. App.—Dallas May 18, 2018, no pet.) (mem. op.)

(considering whether parent’s move was a circumstance anticipated by the parties

when divorcing).

37 Likewise, the evidence is factually insufficient to support the trial court’s

modification of medical support. Because Father did not establish that Mother’s

financial situation had materially and substantially changed since the Parentage Order,

the trial court had no basis on which to modify the order’s medical support provision

to require Mother to pay any part of it. We therefore sustain Mother’s first point as to

the part of the Modification Order assessing a support obligation against her and

granting Father an offset for it and as to the part ordering Mother to pay half of the

cost of Daughter’s health insurance.16 We overrule the remainder of Mother’s first

point.

3. Best Interest

Finally, we consider the remainder of Mother’s second point—whether

factually sufficient evidence supported a finding that reducing the amount Father had

to pay in support was in Daughter’s best interest. We conclude that it was. Without

Father argues that Mother pled that there was a material and substantial 16

change in the counterpetition that she subsequently nonsuited and that although a statement in an abandoned pleading is not a judicial admission, it can nevertheless be considered probative evidence. Mother counters that the trial court could not consider it because it was not admitted as evidence at trial. See H.P.J., 2019 WL 1119612, at *4 n.2. Our result is the same whether we consider the pleading or not. On the possession and conservatorship issues, sufficient evidence supports the modification without considering Mother’s pleading. As for the support modification, Mother’s pleading is not probative evidence of a material and substantial change. Her petition’s allegation of a material and substantial change was directed at her request for a change in Father’s possession, not the previously-ordered support. Accordingly, we do not consider her nonsuited petition as evidence of a material and substantial change in circumstances that would justify a change in support. See J.C.J., 2016 WL 345942, at *6; see also Epps, 537 S.W.3d at 246.

38 modification, Father’s payments would continue to exceed the statutory amount while

making materially less than he had been at the time of the Parentage Order. The trial

court had the discretion to determine that it was in Daughter’s best interest “to have

[her] father’s financial obligation reduced to a more manageable level, subject to the

possibility of future modification should his situation improve.” Plowman,

2015 WL 6081666, at *6; see also In re A.R.W., No. 05-18-00201-CV,

2019 WL 6317870, at *1 (Tex. App.—Dallas Nov. 26, 2019, no pet.) (mem. op.)

(holding that the trial court determined that “the child’s best interest was served by

ordering a child-support payment that would give her adequate resources at both

parents’ residences” and that the trial court had discretion to do so). We overrule the

remainder of Mother’s second point.

V. Conclusion

We overrule Mother’s second point, and we sustain Mother’s first point in part

and overrule it in part. No material and substantial changes support the modifications

granting Father an offset for support assessed against Mother and ordering Mother to

pay for half of Daughter’s health insurance. We therefore sustain the part of Mother’s

first point challenging those provisions, reverse the Modification Order as to those

provisions, and remand this case to the trial court for a new trial on those matters.

However, because material and substantial changes support the trial court’s

modifications to conservatorship, possession, and the amount of Father’s monthly

39 support obligation, we overrule the remainder of Mother’s first point and her second

point, and we affirm the remainder of the Modification Order.

/s/ Mike Wallach Mike Wallach Justice

Delivered: April 28, 2022