Opinion filed March 27, 2014




                                      In The


        Eleventh Court of Appeals
                                  ___________

                               No. 11-12-00155-CV
                                  ___________

IN THE INTEREST OF K.B.K, M.A.K., AND J.C.K., CHILDREN


                    On Appeal from the County Court at Law
                               Midland County, Texas
                        Trial Court Cause No. FM-49,310


                     MEMORANDUM OPINION
      This appeal involves a modification request by Donald Kirk Kimbrell to
have his three children, from his marriage to Cindy Burnside (formerly Cindy
Kimbrell), live with him in Texas rather than with Cindy in Colorado.         The
children, K.B.K., M.A.K., and J.C.K., originally lived with Cindy in Midland,
Texas, following Donald and Cindy’s divorce, but Cindy later moved the children
to Colorado Springs, Colorado. Donald filed a motion seeking an order to have the
children return to Midland to live with him. The trial court entered an order that
K.B.K. and M.A.K. reside with Donald in Midland, but that J.C.K. continue to
reside with Cindy in Colorado Springs. Donald appeals that part of the order that
provided J.C.K. would continue to reside with Cindy in Colorado. We affirm.
                          I. The Evidence at Final Hearing
      The record showed that Donald and Cindy were divorced on July 30, 2009,
but the decree was not signed until April 23, 2010. In the decree of divorce, the
trial court appointed Donald and Cindy as joint managing conservators and ordered
that Cindy could decide the children’s primary residence. Cindy and the children
initially remained in Midland, Texas, at the former marital residence.     Cindy
worked as a substitute teacher and received child support payments from Donald.
Donald also worked in Midland and had frequent contact with the children and
took them during nearly all of his visitation periods.
      During the pendency of her divorce, Cindy had communicated with
Lieutenant Colonel Jeff Burnside, a United States Air Force officer stationed in
Colorado Springs, Colorado. Lieutenant Colonel Burnside was an old high school
boyfriend, who also was going through a divorce. Cindy and Lieutenant Colonel
Burnside communicated frequently through Facebook, a webcam, and other
means; Lieutenant Colonel Burnside first visited Cindy in Midland in September
2009. Although the divorce decree specified that neither Donald nor Cindy would
have members of the opposite sex stay in their homes when they had the children,
Cindy had Lieutenant Colonel Burnside stay overnight in her home when he
visited in September 2009. Soon, Cindy and Lieutenant Colonel Burnside saw
each other every two weeks with some visits in Colorado Springs, some in
Midland and Amarillo, and some in other places.
      Cindy continued to see Lieutenant Colonel Burnside throughout 2009 and
2010, and she moved to Colorado Springs, Colorado, in June 2010. A month later,
Cindy moved the children to Colorado after they completed their summer visitation
with Donald. When Cindy moved to Colorado with the children, she moved into a
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home at 3720 Birdie Court, Colorado Springs, Colorado. Donald was a frequent
visitor to Colorado and often stayed several days to visit with his children, take
them to school, and spend time with them. Donald said that Cindy once let him
stay at her house to visit with the children, while she stayed at Lieutenant Colonel
Burnside’s house. Donald testified that the distance between Colorado Springs and
Midland required frequent trips and created visitation difficulties and that the
children did not appear to enjoy living in Colorado. Donald also testified about his
perceptions that the children were not adjusting well to the new residence and
schools, and that prompted him to request the court modify the child custody
arrangements to have the children return to Midland to live.
      Cindy married Lieutenant Colonel Burnside in April 2011, and the final
hearing took place in July 2011. The trial court held that there had been a material
and substantial change in circumstances and that it was in the best interest of two
of his children, K.B.K. and M.A.K., to return to Midland, Texas, and live with
their father, who would have the right to designate their primary residence. But the
trial court held it was in the best interest of J.C.K. to remain in Colorado Springs,
Colorado, with his mother, Cindy, who would retain the right to designate his
primary residence.
      In explaining its decision, the trial court commented in open court that
Cindy’s failure to adhere to the “morals” clause of the divorce decree and her
behavior regarding a change of address and exchange of medical bills were
troubling. The trial court also commented that Donald may have created angst and
consternation on Cindy’s new family with his inflexibility in visitation
arrangements and demands for strict adherence to details in the decree. The trial
court stated that it expected Cindy and Donald to treat each other with respect and
to follow the court’s orders so the children could move forward. The trial court
also commented that the children seemed to have adjusted to the new family
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arrangements but that the frequent and unnecessary drama by the parents during
visitation exchanges was not in the children’s best interest. The trial court noted
that Lieutenant Colonel Burnside had primary custody of his daughter and
interviewed K.B.K. and M.A.K. on their desired living arrangements.
      The trial court noted that no evidence was provided on J.C.K. and that it
could not interview J.C.K. Although the trial court noted it was opposed to
splitting up siblings, the trial court thought that, in the best interest of all of the
children, K.B.K. and M.A.K. should live in Texas with their father and that J.C.K.
should remain with his mother in Colorado. The trial court adjusted child support
to reflect the new arrangements and ordered Donald to pay $749 a month for
J.C.K. and Cindy to pay $200 a month for K.B.K. and M.A.K. The trial court also
ordered Donald to pay for the health insurance coverage of all three children. The
trial court noted that the parties were agreed on each parent having one weekend a
month for visitation with the children and that the children will have two weekends
a month with no travel. The trial court entered its order modifying the parent-child
relationship on March 9, 2012, and issued findings of fact and conclusions of law
on May 1, 2012. Donald does not appeal the trial court’s orders on child support
or his wife’s visitation with her daughters, but has appealed the trial court’s split
custody order that had J.C.K. remain with his mother in Colorado.
                                 II. Issue Presented
      Donald contends that the trial court abused its discretion when it modified
the custody provisions of the divorce decree and ordered that K.B.K. and M.A.K.
would live with him in Midland, Texas, but that J.C.K. would reside with Cindy in
Colorado Springs, Colorado. Donald argues that the trial court had no evidence or
clear and compelling reason that supported its decision on the living arrangements
for J.C.K.


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                              III. Standard of Review
      We review a trial court’s decision to modify conservatorship under an abuse
of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);
Child v. Leverton, 210 S.W.3d 694, 695 (Tex. App.—Eastland 2006, no pet.). A
trial court abuses its discretion if it acts arbitrarily and unreasonably or without
regard to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985).        The trial court has wide discretion when it
determines issues involving custody. See Peǹa v. Peǹa, 8 S.W.3d 639, 639 (Tex.
1999); Gillespie, 644 S.W.2d at 451. The court’s primary consideration always is
the best interest of the child. Child, 210 S.W.3d at 697.
      We apply an abuse of discretion standard to a modification suit, and because
the traditional sufficiency standards of review overlap the abuse of discretion
standard, we apply a hybrid analysis to the issue asserted by Donald in this case.
See Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.—Austin 2002, no pet.); In
re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Legal and factual sufficiency challenges to the evidence are not independent
grounds of error but are relevant factors to consider in determining whether the
trial court abused its discretion, and we use a two-pronged inquiry: (1) whether the
trial court had sufficient information on which to exercise its discretion and (2)
whether the trial court erred in its application of discretion. Child, 210 S.W.3d at
696. Although traditional sufficiency review focuses the initial inquiry, we also
determine, based on the evidence, if the court made a reasonable decision. Id.
      When we analyze the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the verdict and indulge every reasonable
inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex.
2005). If the evidence would permit reasonable and fair-minded people to reach


                                          5
the verdict under review, then the evidence is legally sufficient. Id. at 827–28. On
a no evidence challenge, we may sustain such a challenge only if:
      (1)      the record discloses a complete absence of evidence of a vital fact,

      (2)      the court is barred by rules of law or of evidence from giving weight
               to the only evidence offered to prove a vital fact,

      (3)      the only evidence offered to prove a vital fact is no more than a mere
               scintilla, or

      (4)      the evidence conclusively establishes the opposite of a vital fact.

Id. at 810.
      When we analyze the factual sufficiency of the evidence, we consider and
weigh all of the evidence and set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661
(Tex. 1951).
                              IV. Discussion and Analysis
      Donald contends that the trial court abused its discretion when it modified
the custody provisions of the divorce decree and ordered that K.B.K. and M.A.K.
would live with him in Midland, Texas, but ordered that J.C.K. would remain with
Cindy in Colorado Springs, Colorado. Donald argues there were no clear and
compelling reasons to separate the siblings and no evidence to support split
custody.
      Section 156.101 of the Texas Family Code allows a court to “modify an
order that provides for the appointment of a conservator of a child, that provides
the terms and conditions of conservatorship, or that provides for the possession of
or access to a child if modification would be in the best interest of the child” and if
“the circumstances of the child, a conservator, or other party affected by the order

                                            6
have materially and substantially changed” since the date of the rendition of the
order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West Supp. 2013).
Section 153.251 of the Texas Family Code, titled “Policy and General Application
of Guidelines,” states a general preference, based on public policy, that “all
children in a family . . . be together during periods of possession.”               Id.
§ 153.251(c) (West 2008). The primary consideration of the court in deciding
possession is the best interest of the child. Id. § 153.002.
          The Code contains no requirement that a party show or trial court find “clear
and compelling reasons” for separating children during periods of possession. See
Gardner v. Gardner, 229 S.W.3d 747, 754 (Tex. App.—San Antonio 2007, no
pet.). The policy favoring keeping children together during periods of possession
is simply a factor the trial court considers in deciding what is in the child’s best
interest. See FAM. § 153.251(c); Gardner, 229 S.W.3d at 754 (citing In re K.L.R.,
162 S.W.3d 291, 306 (Tex. App.—Tyler 2005, no pet.), and MacDonald v.
MacDonald, 821 S.W.2d 458, 463 (Tex. App.—Houston [14th Dist.] 1992, no
writ)).
          The trial court issued eighteen findings of fact and nine conclusions of law.
The relevant findings of fact are as follows:
                2. Subsequent to the divorce rendered on July 30, 2009,
          CindyBurnside remarried Jeff Burnside on April 22, 2011, and the
          couple moved to Colorado Springs, Colorado.

                3. Jeff Burnside is a Lieutenant Colonel in the United States Air
          Force and has custody of his 8-year-old daughter, Isabella.

                4. Donald Kirk Kimberly is in a relationship with Crystal
          Wright, who has custody of 2 children (one boy and one girl, age[s]
          16 and 13[,] respectively).




                                             7
      5. Donald Kirk Kimbrell utilized most of the visitation in
accordance with a prior Standard Possession Order[,] which involved
numerous trips to Colorado.

       6. Contrary to some of the live testimony in court and due
largely to discussions held with children in chambers[,] it appears that
all 3 children have adjusted well to the new relationships of both
father and mother in Midland and Colorado[, respectively].

      7. The son, [J.C.K.] has bonded well with both his stepfather,
Jeff Burnside, and his [Burnside’s] daughter, Isabella.

      8. [J.C.K.] has formed a strong attachment to his new pet puppy
in Colorado and has adjusted well to the change in residence from
Midland, Texas.

      9. The 2 daughters, [K.B.K.] and [M.A.K.] continue to have
strong ties with family and friends in Midland, Texas, and it is their
sincere desire to live in Midland with their father as long as they can
continue to have visitation with their mother.

      10. Cindy Burnside has had technical violations of the Decree
of Divorce with respect to the morals provisions, medical billings,
required forwarding addresses, and visitation periods on certain
designated holidays.

      11. It would appear to the Court that Cindy Burnside has
allowed more liberal visitation with the children’s father as opposed to
Donald Kirk Kimbrell’s rigid adherence to the Standard [Possession]
Order in the past.

      12. Cindy Burnside has discontinued her use of prescribed
medications after her move to Colorado and her marriage to Jeff
Burnside.

      13. It is in the best interest of the children that Donald Kirk
Kimbrell and Cindy Burnside be appointed joint managing
conservators of the children and that Donald Kurt (sic) Kimbrell have
the right to designate the daughters’[,] [K.B.K.] and [M.A.K.’s,]


                                   8
primary residence. Cindy Burnside shall have the right to designate
[J.C.K.’s] primary residence.

      14. The periods of possession vary from the Standard
Possession Order for the following reasons:

            (a) The presumption of keeping the siblings
      together is overcome by the sincere desire that the
      daughters have with respect to their return to Midland
      combined with a positive relationship made by the son
      with respect to the stepfather, his [stepfather’s] daughter,
      and the son’s pet in Colorado.

             (b) The parties live approximately 10 to 12 hours
      driving time from each other leaving very little time for
      visitation on weekends.

             (c) The split custody arrangement necessitates
      monthly alternative one-weekend visitation by the
      parents in order to give both sets of children some
      stability and prevent them from some form of travel on
      every weekend during the month.

             (d) The arrangement within the judgment will
      allow each parent at least one protected weekend with all
      children and further allow the children at least two
      weekends without travel.

             (e) The deviation from the Standard Possession
      Order also allows and encourages visitation by all 3
      siblings together.

The relevant conclusions of law are as follows:
    1. The circumstances of all of the children and both parents
affected by the prior Decree of Divorce have materially and
substantially changed since the rendition of the divorce.

     2. Child support, possession and access should be modified as it
is in the best interest of the children to do so.

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          3. Donald Kirk Kimbrell and Cindy Burnside (formerly Cindy
      Kimbrell) should be named joint managing conservators of the
      children with the rights and duties stated in the judgment, and Donald
      Kirk Kimbrell should be named as the conservator with the right to
      designate both daughters’ primary residence, and Cindy Burnside
      should be named as the conservator with the right to designate the
      son’s primary residence.

           4. There is clear and convincing evidence that split custody
      involving a split of the siblings between the parents would be in the
      best interest of the children and Donald Kirk Kimbrell is entitled to
      periods of possession and access as stated in the judgment and Cindy
      Burnside is entitled to possession and access as stated in the judgment.

Findings of fact in a case tried to the court have the same force and dignity as a
jury’s verdict upon jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). The trial court’s findings of fact are reviewable for legal and factual
sufficiency of the evidence using the same standards applied in reviewing the
sufficiency of the evidence underlying jury findings. Id.
      A party may not challenge conclusions of law for factual sufficiency, but we
may review conclusions of law to determine their correctness based upon the facts.
Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161, 167 (Tex. App.—Fort
Worth 2007, pet. denied). We will uphold a conclusion of law if the judgment can
be supported on any legal theory supported by the evidence. Id. at 167; Tex. Dep’t
of Pub. Safety v. Stockton, 53 S.W.3d 421, 423 (Tex. App.—San Antonio 2001,
pet. denied). We review conclusions of law de novo, and we will not reverse
unless they are clearly erroneous as a matter of law. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Rischon Dev. Corp., 242
S.W.3d at 167.
      The trial court appointed Donald and Cindy as joint managing conservators
and split the custody of the children between them, in large part, due to the sincere


                                         10
desire of the two daughters to live in Midland with their natural father. In a joint
managing conservatorship, the trial court must designate which managing
conservator will have the exclusive right to designate the child’s primary
residence. FAM. § 153.134(b)(1); Gardner, 229 S.W.3d at 753. The paramount
consideration is the best interest of the child. FAM. § 153.002; Gardner, 229
S.W.3d at 753; Albrecht v. Albrecht, 974 S.W.2d 262, 265 (Tex. App.—San
Antonio 1998, no pet.).
      Both Cindy and Donald presented evidence of the other’s faults and
presented evidence they were devoted parents that loved their children and only
wanted what was best for each of them. The trial court heard evidence of Cindy’s
failure to adhere to several provisions of the divorce decree and Donald’s rigid
application of the decree’s standard possession order.        The trial court heard
evidence that the children had some trouble with the new living arrangements, and
it interviewed both of the daughters and solicited their sincere desires about where
they wanted to live.      The trial court also heard evidence about the parents’
relationships with their children; the parents’ relationships with their new spouse or
significant other and their children; and the children’s relationships with their new
stepparents and stepsiblings.
      The trial court heard evidence of the current and proposed living
arrangements in Texas and Colorado and the current and proposed school
arrangements for the children. The trial court heard about J.C.K.’s attachment to
his new puppy and his bond with his stepfather and heard from K.B.K. and M.A.K.
and others about the daughters’ friends and activities and their family roots and
connections in Midland. Donald testified about the trips he took to visit his
children in Colorado and be present in their lives there.
      The trial court noted that, at the time of decree in 2009, everyone lived in
Midland, Cindy was not married to Lieutenant Colonel Burnside, and Donald was
                                          11
not in a relationship with Wright. The trial court learned about Lieutenant Colonel
Burnside’s background and work and his custody of his daughter, Isabella. The
trial court also heard about Wright’s custody of her two children. The trial court
heard evidence on revising child support and visitation.
      The trial court reviewed and weighed all of this evidence and noted the
children were well-adjusted to the new familial relationships and that K.B.K. and
M.A.K. sincerely wanted to return to Midland. The trial court noted it had not
heard much information about J.C.K., but concluded he had adjusted well to home
and school in Colorado, had bonded with his stepfather, and was very attached to
his new puppy. The trial court, as factfinder, is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. See City of Keller, 168
S.W.3d at 819.
      After reviewing the record, we conclude the trial court had sufficient
information to exercise its discretion and did not abuse that discretion in finding it
was in the children’s best interest that K.B.K. and M.A.K. live with their father in
Midland and that J.C.K. remain with his mother in Colorado. See Gardner, 229
S.W.3d at 753–54; see also Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.—
El Paso 2005, no pet.); In re Gonzalez, 993 S.W.2d 147, 155 (Tex. App.—San
Antonio 1999, no pet.) (holding abuse of discretion does not occur as long as some
evidence of substantive and probative character exists to support trial court’s
decision). We find that some evidence of substantive and probative character
supports the trial court’s decision, and we overrule Appellant’s single issue.




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                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


March 27, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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