                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                       No. 07-15-00087-CV


              IN THE INTEREST OF C.L.R., R.S.R., AND C.B.R., CHILDREN

                           On Appeal from the 364th District Court
                                   Lubbock County, Texas
             Trial Court No. 2010-553,459, Honorable Brad Underwood, Presiding

                                       October 21, 2015

                               MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, the father of C.L.R., R.S.R. and C.B.R,1 appeals the trial court’s order

in a suit to modify the parent-child relationship. He presents two issues. We will affirm

the trial court’s order.


                                           Background


       The father and the mother of the children were married in September 2004.

R.S.R. and C.B.R. were born to the couple during the marriage.                    Also during the

marriage, the father adopted the mother’s child C.L.R., a child born during her former

       1
         The father is the biological father of R.S.R. and C.B.R. He is the adoptive father of C.L.R.
C.L.R. was born in 2002, R.S.R. in 2006, and C.B.R. in 2009.
relationship.    The couple divorced in December 2010 and both the father and the

mother married their current spouses in 2013. The mother and her new husband have

a child together. In June 2014, the mother’s husband was employed as an assistant

manager at a LaQuinta hotel in Lubbock, Texas. He later accepted another position as

a LaQuinta general manager in Sherman, Texas, approximately 300 miles from

Lubbock, for a higher salary. The mother left her job in Lubbock in 2014. At the time of

the hearing, she was taking online classes toward her bachelor’s degree in special

education.


        From the time of the divorce until February 2012, the father spent time with all

three children as set forth in the divorce decree. In February 2012, C.B.R. was severely

injured when C.L.R. fell while holding him. After that incident, the father and C.L.R. had

a strained relationship.2         In December 2012, the father and mother signed an

agreement substantially increasing his periods of possession of the children, allowing

him to take possession of the children on the first, third and fifth Fridays of each month

and return them to school on Monday. During the summer, he was permitted to have

the children beginning at 3:00 p.m. on the first, third and fifth Fridays of each month and

ending at 9:00 a.m. the following Monday. He also was allowed to have the children

overnight on Thursdays during the school term and during the summer.




        2
         The mother testified, concerning the father, “He was really upset. He told C.L.R. and I both that
it was our fault, that if we had been watching [C.B.R.] correctly that it wouldn't have happened, that
accidents don't happen whenever you're doing the right thing.”


                                                    2
        After the incident in February 2012, C.L.R. went to her father’s home only once. 3

The mother testified he seemed disinterested in C.L.R., but the father did ask C.L.R. to

accompany him on family outings and trips.4 C.L.R. chose not to do so.


        In June 2014, the mother filed a petition to modify the parent-child relationship,

pleading that the “circumstances of the children, a conservator, or other party affected

by the order to be modified have materially and substantially changed since the date of

rendition of the order to be modified”5 and seeking “that the geographical restriction to

Lubbock County, contained in the Final Decree be lifted, and that she be appointed as

the person who has the right to designate the primary residence of the children without

regard to geographic location.” The father filed a counter-petition to modify the decree,

seeking the right to determine the residence of R.S.R. and C.B.R. but not C.L.R. 6


        The court held the final hearing in October 2014. After hearing the testimony of

both parents and a counselor, the trial court modified the father’s possession of each of

the children. It modified his possession of C.L.R. to access at the home of the mother

“by agreement of the parties.” It modified the father’s possession of R.S.R. and C.B.R.

        3
          The mother testified that on that visit, C.L.R. went with the other children to visit the father. He
“soon after” called the mother and told her he was bringing C.L.R. back. When she arrived, the child was
“very upset, crying.”
        4
         One such trip was a trip to Florida. The mother testified she did not allow any of the children to
accompany the father on that trip because it was in October and would require the children to miss four
days of school. According to the mother, the father was “mad. He didn’t agree with me. He thought that
they should be able to go.”
        5
          Both parties pled there had been a material and substantial change in the circumstances. Thus,
the father judicially admitted that essential element of the mother’s case for modification. See In the
Interest of A.E.A., 406 S.W.3d 404, 410 (Tex. App.—Fort Worth 2013, no pet.); In re L.C.L., 396 S.W.3d
712, 718-19 (Tex. App.—Dallas 2013, no pet.) (both cases finding judicial admissions from pleadings in
modification proceedings).
        6
         In August 2014, the father and his new wife experienced a still-born birth. He told R.S.R. and
C.B.R. about the event but did not tell C.L.R.

                                                      3
to that provided by the Standard Possession Order, giving him possession on the first,

third and fifth weekends of each month. The court also ordered a month-long period of

possession during the summer, as well as other periods of possession. The court

appointed the mother as the parent having the right to establish the primary residence

of the children “without regard to geographic location.” The court also made additional

related orders and subsequently entered findings of fact and conclusions of law. After

the father’s motion for new trial was overruled by operation of law, he timely filed notice

appealing the trial court’s order.


                                                   Analysis


       On appeal, the father challenges the trial court’s order modifying his possession

of the children, appointing the mother as the parent entitled to determine the children’s

residence and lifting the geographical restriction originally imposed in the divorce

decree. He contends the modification is not in the children’s best interests and

insufficient evidence supports the modification.7 We disagree.


       An appellate court reviews a trial court's order regarding child custody, control,

possession, and visitation for an abuse of discretion. In re L.C.L., 396 S.W.3d at 716

(citing In re H.N.T., 367 S.W.3d 901, 903 (Tex. App—Dallas 2012, no pet.) and Jacobs

v. Dobrei, 991 S.W.2d 462, 463 (Tex. App—Dallas 1999, no pet.)). A trial court abuses

its discretion when it acts arbitrarily and unreasonably without reference to guiding

principles. Id. (citing In re H.N.T., 367 S.W.3d at 903 and In re W.C.B, 337 S.W.3d 510,

513 (Tex. App—Dallas 2011, no pet.)). In family law cases, the abuse of discretion


       7
           The mother did not file an appellate brief.

                                                         4
standard of review overlaps with traditional standards of review. L.C.L., 396 S.W.3d at

716; see Crawford v. Hope, 898 S.W.2d 937, 940 (Tex. App.—Amarillo 1995, writ

denied); In re Ferguson, 927 S.W.2d 766, 769 (Tex. App.—Texarkana 1996, no writ).

As a result, legal and factual insufficiency are not independent grounds of reversible

error, but instead are factors relevant to an appellate court's assessment of whether the

trial court abused its discretion. L.C.L., 396 S.W.3d at 716; Crawford, 898 S.W.2d at

940. To determine whether the trial court abused its discretion, an appellate court

considers whether the trial court had sufficient evidence on which to exercise its

discretion and erred in its exercise of that discretion. As long as some evidence of a

substantive and probative character exists to support the trial court's judgment, an

appellate court will not substitute its judgment for that of the trial court. L.C.L., 396

S.W.3d at 716.


      A trial court may modify a conservatorship order if the petitioner proves by a

preponderance of the evidence that the modification would be in the best interests of

the child. TEX. FAM. CODE ANN. § 105.005 (West 2013). The best interest of the child is

the primary consideration in determining conservatorship or residency of a minor child.

TEX. FAM. CODE ANN. §§ 153.001, 153.002 (West 2014); In re V.L.K., 24 S.W.3d 338,

342 (Tex. 2000); Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006,

pet. denied). One attempting to modify an order establishing conservatorship,

possession, and access to a child must show that (1) there has been a material and

substantial change in the circumstances since the rendition of the existing order or the

signing of a mediated or collaborative settlement agreement on which the order is




                                            5
based, and (2) the modification would be in the best interest of the child. TEX. FAM.

CODE ANN. § 156.101(a) (West 2014).


        Our inquiry here is whether the record contains some substantive and probative

evidence the modification order was in the children’s best interests. Trial courts have

wide latitude to determine what is in a minor child's best interests. In the Interest of

O.G., No. 05-13-1263-CV, 2014 Tex. App. LEXIS 7021, at *10 (Tex. App.—Dallas June

26, 2014, no pet.) (mem. op.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.

1982)). In a bench trial, the trial judge is in the best position to observe and assess the

witnesses’ demeanor and credibility. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—

Houston [14th Dist.] 2009, no pet.). We therefore defer to the trial court's resolution of

underlying facts and of credibility determinations that may have affected its

determination, and will not substitute our judgment for that of the trial court. Id.


        Both the mother and father testified to the close relationship between the father

and his two biological children, R.S.R. and C.B.R. The father frankly acknowledged his

strained relationship with C.L.R. after she fell while carrying C.B.R.8 Nevertheless, the

father argues the familial circumstances of all three children are better in Lubbock than

in Sherman. The father argues R.S.R. and C.B.R. are close to him, despite the tension

with C.L.R., and very involved in his life and with his family. The father contends the

children’s relationship with his family, particularly the grandparents, would be negatively

impacted if they were moved to Sherman.9 With his testimony, the father introduced

        8
         The mother testified the father emailed her and “made the comment that he should have never
adopted her, that that wasn’t his place.”
        9
         The mother testified that prior to July 2014, C.L.R. had a good relationship with her
grandparents. But, after a hearing relating to this matter, that relationship ended. The mother told the

                                                   6
many family photographs. He described outings and trips with the children, pets the

children had at his home, and time at his family’s farm. He also admitted that C.L.R.

was present in only a handful after February 2012.


        The father also argued that if the children moved to Sherman, he would no

longer be able to see them for his Sunday and Thursday overnight visits. He also told

the court, “[t]aking them to school and picking up—them up from school is very

important. It allows me to be a regular parent involved in their life on a continual—in a

continual relationship. I don’t know how that would be possible if they move them

away.” The mother also acknowledged the change would be significant in its impact on

his time with the children. She also admitted there was a time in August 2014 that she

contemplated moving to Sherman while leaving R.S.R. and C.B.R. in the father’s care.

She said her opinion had changed and told the court she believed his relationship with

R.S.R. and C.B.R. had been impacted by his difficulties with C.L.R. She related an

incident in which the father yelled at R.S.R. over the phone and that R.S.R. was

“scared. She wanted to leave. She left to play outside.”


        The mother also testified she was the person most involved with the children,

telling the court she took off work to stay home with C.B.R. after his injury and attended

school functions with the children. She told the court the father attended few such

functions and events. She also testified that when the father did attend school functions,

he exhibited negative behavior, such as telling her to “shut up,” calling her names like

“slut” and telling her she was “trashy.” He also “flipped [her] off driving down the street”


court the father told her that “because of what’s going on in court” he was “no longer going to allow his
family to have a relationship with C.L.R.”

                                                   7
when they passed each other going to a school meeting. The mother testified the three

children were close to her current husband and their half-sister. She presented several

photographs of the family together. She testified she believed modification was in the

best interests of her children “[b]ecause I feel like we should all be together as a family

because we—[husband] and I have a child together as well.”              The counselor also

testified she had observed the four children together, that they were close and that

“[w]ithout a doubt it would be harmful if they were separated.” The trial court could have

taken the mother’s and the counselor’s testimony to be significant evidence supporting

its conclusion to modify the order.


       The father also argues the evidence concerning the emotional well-being of his

children does not show the modification of the order was in the best interests of C.L.R.

or his two biological children.          The mother testified she took C.L.R. and R.S.R. to

counseling for several months in 201210 after observing anger management issues,

problems among the siblings, and C.L.R.’s continual attempts to “mother” the younger

children.     Later, in September 2014, the mother took the older children to another

counselor, telling her she was concerned about C.L.R.’s emotional health regarding the

situation with the father and inquiring into whether moving to another city would

exacerbate the problems the children were experiencing. The counselor testified at the

hearing she believed such a move would be “neutral” as to C.L.R.


       The father notes C.L.R. had emotional problems with her mother and siblings,

issues that would not improve with relocation. More importantly, however, the father

points to the counselor’s statement that resolution to the conflicts will require long-term

       10
            The mother testified she took C.B.R. “one time.”

                                                      8
counseling which cannot be efficiently achieved with the children in Sherman and the

father in Lubbock. And, the father contends no evidence was presented regarding the

possibility of counseling in Sherman.11 The father also told the court that after being

admonished by a judge at a prior hearing and, most significantly, after suffering the loss

of his newborn son, he realized his issues with C.L.R. were “just petty” and he “hate[d]

the time that we’ve lost . . .”. He told the court he loved C.L.R. and would participate in

counseling or other activities to help her.


        But the trial court could have considered the mother’s testimony and other

evidence describing the father’s actions toward and lack of communication with C.L.R.,

and his derogatory comments about the mother, her family, and C.L.R. The counselor

testified the father told C.L.R. he “has no intentions of having a relationship” with her.

Also, the mother agreed the father did not attempt any reconciliation with C.L.R. And,

the mother told the counselor C.L.R. “experiences sadness where her siblings go to—to

their father . . .”. The counselor also testified to her concern about the father’s behavior

toward C.L.R. stating, “[t]o reject a nine-year-old little girl and refuse contact with her for

two and a half years, my concern would be that when the younger children begin to

have their own opinions, rejection could easily happen there. My concern is the anger

which the children have reported. My concern is the -- the lack of control there appears

to be from the children's statements . . .”. The trial court certainly could have taken this




        11
          The mother testified she believed the children and the father would be able to attend
counseling when they visited their father, as long as the father and C.L.R. were able to reconcile prior to
the move.


                                                    9
evidence into consideration in determining modification of the order was in the children’s

best interests.12


        The father also points to evidence showing C.L.R. was doing very well in school

in Lubbock, as was R.S.R. And C.B.R. was doing well in kindergarten. The mother

agreed all three children were “very good students.” However, the mother testified it

would ease the hardship on her family and they “can provide better for them” if she and

the children were able to move to Sherman to be with her husband. She told the court

she had taken the children to Sherman on two occasions. She also said she and her

husband had located a five-bedroom home in a small community near Sherman, had

found the local schools to be well-rated, had located libraries, sports fields and a

gymnastics facility for C.L.R. and R.S.R., and had spoken with a pediatrician who would

treat the children. The counselor testified the children were excited about the move

even though they would see their father less.


        The father also points to testimony showing the financial circumstances of the

mother and her new husband would not be significantly different in Sherman than in

Lubbock. The father argues the choice to move to Sherman was not a choice made

considering the best interests of the children but rather was in the interests of the

mother’s husband. And, he asserts, differences in the cost of living and the additional

costs of visitation would offset the husband’s higher salary.




        12
          At the conclusion of the hearing, the trial judge granted the mother’s motion to modify, noting
he wanted to keep the three children together. He also specifically noted both the father’s “huge anger
issue” and his unwillingness to address his relationship with C.L.R.

                                                   10
       The trial court’s findings of fact state the husband “was offered a job opportunity

in Sherman, Texas, and was told by his employer that he either moved to Sherman, or

he wouldn’t have a job with LaQuinta.” The mother testified that her husband “had to

take the job in Sherman, because if he didn't, he would not have a job here in Lubbock.”

She also told the court the new position made her husband eligible for bonuses that had

not been available to him in Lubbock. And, the mother told the court “[t]he benefit to the

children if they move to Sherman is that I can attend school and I can finish and make

more money for them in the long run. It's not just about right now, but the opportunity for

the long haul.” The mother testified if the court did not lift the geographical restriction,

she would remain in Lubbock with the children. The trial court could have concluded

from this evidence that granting the mother’s requested modification was in the

children’s best interests.


       Having reviewed the record of trial, we find the trial court heard evidence of a

substantive and probative character supporting its conclusion it was in the children’s

best interests that the parents remain joint managing conservators and that the mother

be appointed the parent having the right to establish the residence of the children

without regard to geographical location.


                                        Conclusion


       Having resolved each of the father’s issues against him, we affirm the trial court’s

order modifying the parent-child relationship.


                                                 James T. Campbell
                                                     Justice


                                            11
