      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00532-CV



                                   Daniel Ceniseros, Appellant

                                                    v.

                             Kayla Di’Lynn Dry Rychlik, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
       NO. B-11-0254-AG, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Daniel Ceniseros (Father) appeals the trial court’s order in a suit to modify

the parent-child relationship, giving appellee Kayla Di’Lynn Dry Rychlik (Mother) the right to

designate the primary residence of the couple’s children. In two issues, Father contends that the trial

court abused its discretion in concluding that (1) there has been a material and substantial change

in circumstances since the prior order, and (2) the modification would be in the best interest of the

children. We will affirm the trial court’s order.


                                         BACKGROUND

               Mother and Father’s twin children were born in 2011. That same year, after the

relationship between Mother and Father ended, the trial court signed an original order in a suit

affecting the parent-child relationship appointing Mother and Father joint managing conservators

and giving Mother the exclusive right to designate the primary residence of the children. On
December 18, 2014, the order was modified to provide, in accordance with the parents’ agreement,

that Father would be the joint managing conservator with the exclusive right to determine the

children’s primary residence and that Mother would have access to the children under a standard

possession order schedule. In addition, the 2014 order stated that if Father “is scheduled to work

beyond 10:00 p.m., then [Father] shall advise [Mother] and [Mother] shall have the option to pick

up the children by 8:00 p.m. and return them either to [Father], daycare, or school by 8:00 a.m. the

following morning.”

                In June 2016, Mother filed a petition to modify the parent-child relationship, seeking

to be designated as the joint managing conservator with the right to determine the primary residence

of the children. At the final hearing, Mother testified that her chief complaint, and the reason that

she had decided to seek the modification, was that Father was not allowing her to spend time with

the children and that he was instead allowing his sister Ana Ceniseros to care for the children when

he was unavailable. Mother explained that she believed that the children were, in fact, living with

Ana and that the situation was not “fair for [the children]” because “[t]hey don’t know who’s

picking them up [from school]. They don’t know if they’re staying the night at Ana’s or staying the

night at dad’s or staying the night at mom’s.” Mother stated that she would be able to provide the

children with the structure and stability they needed. In addition, Mother cited a string of text

messages sent on June 15, 2016, in which Father made “harassing” and “demeaning” statements in

response to her offer to take care of the children when Father was unavailable. Mother explained that

these messages from Father were “the last straw” leading to her decision to file her petition for

modification.



                                                  2
               In response to Mother’s testimony, Ana and Father both denied that the children

were living with Ana or that the children regularly spent the night at Ana’s house. Ana testified that

she had a close relationship with Father and with the children and that she would help Father with

the children whenever needed, but the children did not live with her. Similarly, Father testified that

he has a very supportive extended family and that when he needs help with picking up the children

from school he often asks Ana because she lives nearby and is willing to help. Both Father and Ana

acknowledged, however, that there had been occasions in the past when the children would stay the

night at Ana’s house when Father, a bar and restaurant manager, had to work late at night.

               Father also testified about the relationship between Mother and himself. According

to Father, Mother has a history of abusing drugs and was not very stable in 2014 when the prior

order was signed, but was now doing better and was “on the right path.” Father described Mother’s

new husband as “the best thing to happen to her” and as “a good guy” who gets along well with the

children. Father explained to the court that although he and Mother sometimes did not get along

well in the past, their relationship has improved greatly since Mother met her current husband, and

Father now wants Mother to be more involved in the children’s lives. Finally, the trial court heard

from numerous witnesses, including the children’s elementary school teachers and relatives, who

testified that both children were happy and well adjusted and that both parents were good parents

who loved their children.

               At the conclusion of the hearing, the trial court granted Mother’s petition. On July 5,

2017, the trial court signed an order stating that both parents would continue as joint managing

conservators but that Mother, not Father, would have the right to determine the children’s primary

residence. Upon request, the trial court entered findings and fact and conclusions of law. Among

                                                  3
other things, the trial court found that “Father refused to cooperate with visitation and ignored the

Court’s Order to advise Mother when he would work overnight” and that “ the children were often

with Father’s sister when Father worked past 10:00 p.m., so the children were not in a parent’s home

many nights.” Finally, the court determined that “[t]he circumstances of the children, Mother, and

Father have materially and substantially changed since rendition of the previous order” and that

“[d]esignating Mother as the person with authority to establish the children’s primary residence is

in the children’s best interest.” This appeal followed.


                                   STANDARD OF REVIEW

               When the trial court appoints joint managing conservators, it must designate

the conservator who has the exclusive right to determine the primary residence of the child. Tex.

Fam. Code § 153.134. To prevail on a petition to modify the terms of conservatorship, including

a modification of which conservator will have the right to determine the children’s primary residence,

the party seeking modification must establish that (1) “the circumstances of the child[ren], a

conservator, or other party affected by the order have materially and substantially changed” since

the date of rendition of the prior order, and (2) modification is in the children’s best interest. Id.

§ 156.101(a)(1).

               We review a trial court’s decision to modify conservatorship for an abuse of

discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Zeifman v. Michels, 212 S.W.3d

582, 587 (Tex. App.—Austin 2006, pet. denied). The test for abuse of discretion is whether the trial

court acted in an arbitrary and unreasonable manner or whether it acted without reference to any

guiding principles. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.).


                                                  4
Absent a clear abuse of discretion, the trial court’s order modifying the prior order will not be

disturbed on appeal. Zeifman, 212 S.W.3d at 587.

               In family law cases, the abuse-of-discretion standard overlaps with traditional

sufficiency standards of review. Id. at 587-88. As a result, legal and factual sufficiency of the

evidence are not independent grounds of error but are relevant factors in assessing whether the trial

court abused its discretion. Id. at 587. In determining whether the trial court abused its discretion,

we engage in a two-pronged inquiry: (1) whether the trial court had sufficient information upon

which to exercise its discretion, and (2) whether the trial court erred in its application of that

discretion. Echols, 85 S.W.3d at 477-78. The focus of the first issue is on the sufficiency of the

evidence under traditional sufficiency-review standards. Zeifman, 212 S.W.3d at 588. Under the

second issue, the appellate court determines whether, based on that evidence, the trial court made

a reasonable decision. Id.

               To determine if the evidence is legally sufficient to support the trial court’s exercise

of discretion, we consider the evidence in the light most favorable to the trial court’s findings if a

reasonable factfinder could and disregard evidence to the contrary unless a reasonable factfinder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing the

evidence for factual sufficiency, we consider and weigh all the evidence presented and will set aside

the trial court’s findings only if they are so contrary to the overwhelming weight of the evidence

such that they are clearly wrong and unjust. Id. at 826; Plas-Tex, Inc. v. U.S. Steel Corp., 772

S.W.2d 442, 445 (Tex. 1989). When the evidence conflicts we must presume that the factfinder

resolved any inconsistencies in favor of the order if a reasonable person could do so. City of Keller,

168 S.W.3d at 822.

                                                  5
                The trial court is best able to “observe the demeanor and personalities of the

witnesses and [to] ‘feel’ the forces, powers, and influences that cannot be discerned by merely

reading the record.” Echols, 85 S.W.3d at 477. In an appeal from a bench trial, findings of fact are

the equivalent of jury answers, and we cannot substitute our conclusions for those of the trial court

if there is sufficient evidence to support the trial court’s findings. Id. The trial court does not abuse

its discretion if evidence of a substantive and probative character exists in support of its decision.

Zeifman, 212 S.W.3d at 587.


                                             ANALYSIS

                In his first issue on appeal, Father asserts that “there was insufficient evidence

upon which to determine that there had been a material and substantial change of circumstances

regarding the parents or the child since the prior order.” See Tex. Fam. Code § 156.101(a)(1).

                The change-in-circumstances requirement is a threshold issue for the trial court

and is based on a policy of preventing constant re-litigation with respect to children. Zeifman,

212 S.W.3d at 595. “The requirement of this showing ‘serves a valid purpose of significantly limiting

the trial judge’s discretion and prevents the modification statute from being unconstitutionally

broad.’” Id. (quoting In re M.N.G., 113 S.W.3d 27, 34 (Tex. App.—Fort Worth 2003, no pet.)). In

deciding whether circumstances have materially and substantially changed, the trial court is not

confined to rigid rules or definite guidelines. Id. at 589; see In re T.M.P., 417 S.W.3d 557, 562

(Tex. App.—El Paso 2013, no pet.). Instead, the court’s determination is fact-specific and must be

made according to the circumstances of the case. In re A.L.E., 279 S.W.3d 424, 428 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (citing Zeifman, 212 S.W.3d at 593). Material and


                                                   6
substantial changes may include: (1) the marriage of one of the parties; (2) poisoning of a child’s

mind by one of the parties; (3) a change in home surroundings; (4) mistreatment of a child by a

parent or step-parent; and (5) a parent’s becoming an improper person to exercise custody. In re

T.M.P., 417 S.W.3d at 564 (citing In re A.L.E., 279 S.W.3d at 429).

               Here, the trial court’s “findings of fact” included the following:


       1.      Father’s home is less structured and not as stable as Mother’s new home.
               Father’s house has three bedrooms. Living with Father in his house were the
               twins who are the subject of this suit, his older son from another relationship,
               and an unrelated man who was Father’s friend. At times, several days a
               week, another son by a third relationship stays with Father, and on occasion,
               the mother of one of the other children will stay overnight. . . .

       ...

       7.      Mother acknowledged her drug use from several years before. She
               successfully completed treatment at a Community Correction Facility.

       8.      Since the previous order, Mother has married. Her husband supports her
               relationship with her children and helps her care for them when the children
               are in Mother’s possession. She and her husband live in a three bedroom
               house where the children have their own bedroom.


               On appeal, Father does not specifically challenge the sufficiency of the evidence

supporting these underlying fact findings. Instead, Father argues that these findings are insufficient

to support the trial court’s determination that a material and substantial change in circumstances has

occurred since the prior order. According to Father, these findings are insufficient to demonstrate

a “material and substantial change” because “no evidence was presented as to the difference between

[Mother’s residence when the 2014 order was signed] and the new husband’s home or either’s effect

on the children.” See Trammel v. Trammel, 485 S.W.3d 571, 576 (Tex. App.—Houston [1st Dist.]


                                                  7
2016, no pet.) (noting that court determining whether material and substantial change has occurred

“should examine the circumstances of the child and parents at the time the prior decree was

rendered, in relation to circumstances existing at the time modification of the prior order is

sought”). We construe Father’s argument to be that the trial court abused its discretion to the extent

it found that these changes constitute “material and substantial” changes that justify a change in the

terms of conservatorship.

               The trial court’s underlying fact findings numbers 1 and 8 concern the marital status

of Mother as well as the current home surroundings of the parents and the children. Although little

evidence was presented at the final hearing regarding the home surroundings of the children when

the 2014 order was signed, Mother testified that at that time she was living in a community

rehabilitation facility as part of the terms of her probation for a drug offense. The undisputed

evidence also demonstrates that since the 2014 order giving Father the right to determine the

children’s primary residence, Mother has successfully completed her probation, started taking

college classes, maintained her sobriety, married, and moved into a three-bedroom house with her

new husband. This Court has previously concluded that a parent’s change in marital status and

residence supported a finding that there had been material and substantial change in circumstances

when after the original decree, one of the parties planned to marry, began living with his significant

other, quit his job to go back to school, and moved into a new neighborhood where the

children started school. Downey v. Downey, No. 03-12-00037-CV, 2014 WL 1362642, at *4 (Tex.

App.—Apr. 1, 2014, no pet.) (mem. op.) (citing In re A.L.E., 279 S.W.3d at 428-29). Similarly, in

this case, we conclude that the evidence demonstrates that since the 2014 order was signed Mother

has established a stable home and entered into a stable, supportive marriage. Consequently, the trial

                                                  8
court’s unchallenged fact findings, see McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.

1986) (unchallenged findings of fact are binding on appellate court when supported by record),

along with the evidence presented at the final hearing relevant to the issue of Mother’s changed

marital status and home surroundings, are sufficient to support the trial court’s determination that

a material and substantial change in circumstances relevant to the issue of the right to determine the

children’s residence had occurred. We overrule Father’s first issue on appeal.

               In his second issue on appeal, Father contends that the trial court abused its discretion

in concluding that the modification of the conservatorship was in the best interest of the children.

See Tex. Fam. Code § 156.101(a)(1). Trial courts generally have wide latitude in determining what

is in a child’s best interest, Gillespie, 644 S.W.2d at 451, and may use a non-exhaustive list of

factors to aid in the determination, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The

factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the

parental abilities of the individuals seeking custody; (5) the programs available to assist these

individuals to promote the best interest of the child; (6) the plans for the child by these individuals

or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a proper

one; and (9) any excuse for the act or omissions of the parent. Id. These factors are not exhaustive,

and no single factor is controlling. See id. at 372; M.C. v. Texas Dep’t of Family & Protective

Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied). The factfinder is not required

to consider all of the factors, and the presence of a single factor may, in some instances, be adequate

to support a best-interest finding. M.C., 300 S.W.3d at 311.

                                                  9
                Because there is no bright-line test for determining the best interest of the child, “a

trial court’s findings of fact and conclusions of law need not include a consideration of every factor.”

Miller v. Miller, No. 03-14-00603-CV, 2015 WL 6830754, at *5 (Tex. App.—Austin Nov. 4, 2015,

no pet.) (mem. op.). Instead, we examine the record under an abuse-of-discretion standard to

determine whether the trial court’s decision has any reasonable basis in the evidence before it at

trial, such that it could have reasonably concluded that a modification of the right to determine the

children’s primary residence was in the children’s best interest. Id.

                At the final hearing on Mother’s petition to modify, the trial court heard that Mother

has had problems with drug use in the past and that she was on probation for a 2012 drug offense

until March of 2015. In the summer of 2015, Mother had a brief romantic relationship with Father

and in September 2015, had a two-month romantic relationship with a man who was on parole

for a drug offense. However, as previously discussed, evidence presented at the final hearing also

establishes that Mother started attending college in January 2015 while working part time, met her

current husband in March 2015, and has been in a stable, supportive marriage since May 2016.

Mother lives with her husband in a three-bedroom house that is twenty minutes from the children’s

school and where each child has his own bedroom. In addition, Mother attends weekly private

counseling sessions aimed at maintaining her sobriety and works part time in the mornings as a

home-health attendant. The trial court also heard testimony demonstrating that Mother’s new

husband is supportive of Mother’s efforts to maintain her sobriety, assists her with the children when

they are in her care, and gets along with the children. Finally, several witnesses testified that Mother

is a good mother who loves her children and is attentive to their needs.



                                                  10
                The trial court also heard evidence about Father relevant to the issue of

conservatorship and the right to determine the children’s primary residence. The undisputed evidence

presented at the hearing established that the children currently live with Father in a three-bedroom

house, three minutes from the children’s school, with a non-relative roommate and with Father’s

teenage son by a previous relationship, Gavin. In addition, Father’s five-year-old son from a

subsequent relationship stays at the house three or four days each week. The children share a room

with their half-brother Gavin, with whom the children have a close relationship. Father is employed

as a manager at a bar and restaurant in Abilene. While Father sets his own schedule and prioritizes

his children’s needs, he occasionally stays in Abilene overnight due to work obligations. Father

sometimes relies on his sister Ana to help him with the children, including picking them up from

school, watching them at her house, and, in the past, keeping them overnight. The trial court also

heard from several witnesses, including Mother, who testified that Father is a good dad who cares

about his children and enjoys spending time with them.

                Conservatorship determinations are intensely fact driven, and the trial court is in the

best position to judge the credibility of the witnesses and the weight to be given their testimony.

Accordingly, as the reviewing court, we defer to the trial court’s credibility determinations and

resolution of underlying facts, and we will not substitute our judgment for that of the trial court, even

if we would reach a different conclusion based on the evidence. In re A.L.E., 279 S.W.3d at 427;

see Clemons v. Lynn, No. 03-16-00360-CV, 2017 WL 1130382, at *4 (Tex. App.—Austin Mar. 22,

2017, no pet.) (mem. op.). Having reviewed the evidence under the appropriate standards, we

conclude that there is sufficient evidence to support the trial court’s finding that it was in the



                                                   11
children’s best interest to give Mother, as joint managing conservator, the right to designate the

children’s residence.

               Based on the evidence before it, the trial court had legally and factually sufficient

information on which to exercise its discretion and did not err in the application of that discretion.

See Echols, 85 S.W.3d at 476. The trial court did not abuse its discretion in concluding that

modification of the terms of conservatorship was warranted. See Tex. Fam. Code § 156.101(a)(1).

Father’s second issue on appeal is overruled.


                                          CONCLUSION

               Having overruled appellant’s issues on appeal, we affirm the trial court’s judgment.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: September 7, 2018




                                                  12
