                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-17-00220-CV

                   IN THE INTEREST OF A.B.R., W.C.R., and K.R.R., Children

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014-CI-19862
                           Honorable Stephani A. Walsh, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 22, 2018

REVERSED AND RENDERED IN PART, REVERSED AND REMANDED IN PART

           This appeal and cross-appeal stem from a trial court’s modification of an agreed final order

in a suit affecting the parent–child relationship. The children subject to this suit are A.B.R.,

W.C.R., and K.R.R., and their parents are Carlos and Victoria. Among her several issues, Victoria

argues there was no material and substantial change of circumstances authorizing the trial court to

modify the final order. Among the issues in his cross-appeal, Carlos argues the trial court erred by

requiring him to post a $50,000 bond. We conclude both parties’ issues have merit, reverse the

trial court’s order in its entirety, render judgment denying Carlos’s petition to modify the final

order and Victoria’s conditional cross-petition to modify the final order, and remand this case for

the trial court to reconsider the award of attorney’s fees.
                                                                                        04-17-00220-CV


                                           BACKGROUND

       In December 2014, Victoria filed for divorce from Carlos. Victoria also sought sole

managing conservatorship of the children, alleging that appointing Carlos as a joint managing

conservator would not be in the children’s best interest. Carlos generally denied Victoria’s

allegations. Following mediation, the parties filed a joint petition, stating the parties would enter

into a written agreement containing provisions for conservatorship, child support, medical support,

access, and possession of the children. The parties also filed an agreed motion to sever the divorce

action into a separate cause number, and the trial court granted the motion.

       The trial court signed an agreed final order that recited, “This order is stipulated to represent

a merger of a mediated settlement agreement between the parties.” The Mediated Settlement

Agreement was executed on March 4, 2015. The agreed final order appointed Carlos and Victoria

as joint managing conservators, and addressed various aspects of the parent–child relationship,

including child support, health insurance, life insurance, medical notification, periods of

possession, and private school tuition. The agreed final order was signed on May 19, 2015, and

contained specific provisions regarding Carlos’s anticipated relocation to Puerto Rico. The agreed

final order also provided Carlos’s periods of possession may not “interfere with the children’s

attendance at school or the children’s school related activities and sports the children are

participating in.” The agreed final order contained no provisions regarding decisions as to the

activities and sports in which the children would participate.

       Before the agreed final order and the Mediated Settlement Agreement, Carlos and Victoria

were still living together, and the children participated in numerous seasonal sports and

extracurricular activities. A.B.R. (born in 2006) and W.C.R. (born in 2008) were involved in

soccer, basketball, tennis, swimming, early bird reading, archery, a young astronaut program,



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chess, horseback riding, and cub scouts. A.B.R. was also taking guitar lessons, and W.C.R. was

being tutored. K.R.R. (born in 2011) was involved in swimming, ballet, and piano.

       After the Mediated Settlement Agreement and agreed final order, Carlos and Victoria

finalized their divorce, Carlos moved to Puerto Rico, Carlos’s and Victoria’s relationship did not

improve, and Carlos’s routine with the children changed. Furthermore, after the agreed order and

Mediated Settlement Agreement, the children remained involved in several of the same activities

and sports, stopped participating in some activities and sports, and took up others. A.B.R. and

W.C.R.’s basketball season started in November or December 2015, and ended on March 27, 2016.

A.B.R. and W.C.R. would play basketball at invitational tournaments for sometimes up to eight

hours a day on the weekend. Some of those weekends fell on Carlos’s weekends with the children.

Victoria would also be present at games, and she and Carlos disagreed about what activities the

children should be involved in. Displeased with these circumstances, Carlos sought legal advice

in March 2016 about the issues arising after the parties executed the Mediated Settlement

Agreement. His hope was to “clean up a lot of problems” in the Mediated Settlement Agreement.

       On March 28, 2016, Carlos filed a petition to modify the agreed final order. Carlos alleged

“[t]he circumstances of the children, a conservator, or other party affected by the agreed order had

materially and substantially changed since the date of the signing of the mediated settlement

agreement on which the order to be modified [wa]s based.” In his Fifth Amended Petition to

Modify, his live pleading, Carlos requested fourteen modifications to the agreed final order. To

provide a few examples, Carlos requested modifications regarding the children’s exclusive

psychological and psychiatric treatment by a particular doctor, the children’s passports and travel,

a “right of first refusal” to have access to the children if Victoria was unable to exercise her

possessory rights for an overnight period, an order that Victoria submit to a psychological

evaluation, a requirement that the children not be left alone with Victoria overnight, and limiting
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Victoria’s ability to make decisions that would involve the children in activities that would

interfere with Carlos’s periods of possession. Carlos also requested an award of his attorney’s fees.

Victoria generally denied Carlos’s allegations and requested an award of her attorney’s fees.

Victoria also filed a conditional counter-petition to modify the agreed final order, but only if the

trial court found there was a material and substantial change of circumstances authorizing the trial

court to modify the parties’ agreed final order.

       The trial court heard the case beginning on October 3, 2016, and ending on October 7,

2016. At the hearing, several witnesses (including Victoria and Carlos) testified, and numerous

exhibits were admitted into evidence. The following week, the trial court orally rendered rulings

on the parties’ requests for relief. On April 6, 2017, after two motion-to-enter hearings, the trial

court signed an order modifying the agreed final order. Victoria timely filed a motion to modify,

a motion for new trial, and a request for findings of fact and conclusions of law. The trial court

issued findings of fact and conclusions of law, and then entered first amended findings of fact and

conclusions of law, as well as additional findings of fact at Victoria’s request. The trial court then

separately entered second amended findings of fact and conclusions of law and signed a final nunc

pro tunc modification order (or “the modification order”).

       The modification order consisted of fifty-two pages altering the parties’ agreed final order.

The modification order contained a geographical restriction, a designation of an exclusive person

to provide mental health services to the children, and orders regarding possession, extracurricular

and sports activities, electronic communication, the children’s travel and passports, child support,

health insurance, life insurance, private school tuition, loving and caring, children’s bill of rights,

children’s uniforms, a co-parenting website, and parent counseling. In the modification order, the

trial court specifically denied several of the parties’ requests, required Carlos to post a cash bond

in the amount of $50,000, and awarded Victoria $150,000 in attorney’s fees.
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       The trial court’s second amended findings of fact and conclusions of law contained over

one hundred twenty findings of fact and conclusions of law, most of which found that the specific

provisions of the modification order were in the children’s best interest. In its conclusions of law,

the trial court determined, “The circumstances of the children or a conservator have materially and

substantially changed since March 4, 2015 when the parties entered into their binding Mediated

Settlement Agreement.” Both Carlos and Victoria have appealed the modification order. We begin

by addressing Victoria’s appeal.

                                        VICTORIA’S APPEAL

       Victoria argues: (1) there was no material and substantial change in circumstances that

authorized the trial court to modify the agreed final order; (2) the trial court erred by turning

exclusive decision-making authority regarding the children’s mental health over to a psychologist

and allowing that psychologist to designate a substitute psychologist; (3) the modifications to the

agreed final order are not in the children’s best interest; (4) the trial court improperly authorized a

trial amendment to Carlos’s pleadings; and (5) there is legally and factually insufficient evidence

“to support Findings of Fact Nos. 9, 14-19, 21-21 [sic], 38-40, 51-60, 62-63, 67-71, 76-77, 91, 93,

103-106, 113-114, 117-118.” We address Victoria’s first issue.

A. Material & Substantial Change in Circumstances

       1. Standard of Review

       We review a modification order for an abuse of discretion. Smith v. Karanja, 546 S.W.3d

734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A trial court abuses its discretion if its

decision is arbitrary, unreasonable, or without reference to guiding rules or principles. Id. “Because

it has no discretion when determining the applicable law, the trial court also abuses its discretion

when it clearly fails to analyze and determine the law correctly or applies the law incorrectly to

the facts.” Id. at 738. “Under an abuse of discretion standard, legal and factual insufficiency are
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                                                                                     04-17-00220-CV


not independent grounds for asserting error but are relevant factors in assessing whether a trial

court abused its discretion.” Id. at 737. And under an abuse of discretion standard, we may not

interfere with the trial court’s decision “so long as some evidence of a substantive and probative

character supports it and the ruling comports with the law.” In re C.M.G., 339 S.W.3d 317, 319

(Tex. App.—Amarillo 2011, no pet.).

       2. Applicable Law

       As previously noted, the modification order alters an agreed final order in a custody

proceeding. Such an agreed order is contractual, final, and “res judicata of the best interests of a

minor child as to conditions then existing.” Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969);

see Toler v. Sanders, 371 S.W.3d 477, 480 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “As a

matter of public policy, there should be a high degree of stability in the home and surroundings of

a young child, and, in the absence of materially changed conditions, the disturbing influence of re-

litigation should be discouraged.” Knowles, 437 S.W.2d at 817. Thus, in modification suits, “the

threshold inquiry is whether the moving party has met the burden of demonstrating a material and

substantial change.” In re T.M.P., 417 S.W.3d 557, 563 (Tex. App.—El Paso 2013, no pet.).

       Section 156.101 of the Texas Family Code limits when a trial court may modify such a

final order regarding conservatorship and possession of a child:

       (a) The court may 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:

           (1) the circumstances of the child, a conservator, or other party affected by the
           order have materially and substantially changed since the earlier of:

               (A) the date of the rendition of the order; or
               (B) the date of the signing of a mediated or collaborative law settlement
               agreement on which the order is based.



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See TEX. FAM. CODE. ANN. § 156.101(a) (West 2014). The plain language of section 156.101

requires a party to establish three elements before a trial court may modify such an order under

that section: there must be (1) changed circumstances that are (2) material and substantial, and (3)

modification must be in the best interest of the child. Id.; see Zeifman v. Michels, 212 S.W.3d 582,

593-94 & n.1 (Tex. App.—Austin 2006, pet. denied); see also State Office of Risk Mgmt. v.

Martinez, 539 S.W.3d 266, 270 (Tex. 2017) (stating we construe statutes according to their plain

language). These elements may be proven by direct or circumstantial elements. See Wright v.

Wright, 610 S.W.2d 553, 554-55 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ).

       Because Victoria does not challenge the “best interest” element in her first issue, we

elaborate here only on section 156.101(a)(1)’s other two elements. First, a party seeking to modify

a prior final order under section 156.101(a)(1) must show there is an actual change in

circumstances. See TEX. FAM. CODE. ANN. § 156.101(a)(1). In determining whether there has been

a change of circumstances, “most courts require a comparison between the original circumstances

of the child and the affected parties at the time the existing order was entered with their

circumstances at the time the modification is sought.” Zeifman, 212 S.W.3d at 594 n.1. “Thus, the

record must contain both historical and current evidence of the relevant circumstances. Without

both sets of data, the court has nothing to compare and cannot determine whether a change has

occurred.” Id. Additionally, “[i]f a circumstance was contemplated at the time of an original

agreement, its eventuality is not a changed circumstance, but is instead an anticipated circumstance

that cannot be evidence of a material or substantial change of circumstances.” In re N.T.P., 402

S.W.3d 13, 19 (Tex. App.—San Antonio 2012, no pet.).

       Second, the changed circumstances must be material and substantial. See TEX. FAM. CODE.

ANN. § 156.101(a)(1). Determining whether changed circumstances are material and substantial

under section 156.101 is fact-specific and is “not guided by rigid rules.” Zeifman, 212 S.W.3d at
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593. Some examples of changed circumstances that are material and substantial under section

156.101(a) are a parent’s remarriage; a change in the child’s age that changes the child’s needs; a

parent’s relocation, depending upon the distance of the relocation; a parent’s poisoning the mind

of a child and preventing the child from associating favorably with the other parent; a parent’s

abuse of drugs and alcohol; and a parent’s abuse or extreme neglect of a child. See id. 1 Some

examples of changed circumstances that are not material or substantial are a temporary loss of

contact with the child; a parent’s decreased participation in raising a child; a parent’s desire, but

inability, to have a child travel internationally; and a parent’s desire to spend more time with a

child. See Karanja, 546 S.W.3d at 741-42; In re C.H.C., 392 S.W.3d 347, 351-52 (Tex. App.—

Dallas 2013, no pet.) (mere desire to spend more time with a child is insufficient); Kelly v. Tex.

Dep’t of Family & Protective Servs., No. 03-11-00670-CV, 2012 WL 5476840, at *5 (Tex. App.—

Austin Nov. 9, 2012, no pet.) (mem. op.) (holding in suit to modify grandparent access that a

change from supervised visits to no contact for four months is insufficient); Zeifman, 212 S.W.3d

at 593-94 (listing additional examples).

         3. Whether the Trial Court Abused Its Discretion

         Although the trial court concluded the circumstances of the children or a parent had

materially and substantially changed since the parties executed the Mediated Settlement

Agreement, the trial court did not specify the basis for that conclusion, which is more properly

characterized as finding of fact on an ultimate issue. 2 In her appellant’s brief, Victoria argues there


1
 See also In re A.G., 531 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2017, no pet.); In re J.R.P., 526 S.W.3d
770, 779 (Tex. App.—Houston [14th Dist.] 2017, no pet.); In re H.D.C., 474 S.W.3d 758, 766 (Tex. App.—Houston
[14th Dist.] 2014, no pet.); In re T.M.P., 417 S.W.3d at 564; Arredondo v. Betancourt, 383 S.W.3d 730, 738-39 (Tex.
App.—Houston [14th Dist.] 2012, no pet.); In re A.L.E., 279 S.W.3d 424, 428-29 (Tex. App.—Houston [14th Dist.]
2009, no pet.); Wright, 610 S.W.2d at 555; Leonard v. Leonard, 218 S.W.2d 296, 301 (Tex. Civ. App.—San Antonio
1949, no writ).
2
 In its conclusions of law, the trial court noted, “Any item described in this document as a Conclusion of Law that is
actually a Finding of Fact shall be deemed a Finding of Fact.”

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is no evidence to support the trial court’s finding of materially and substantially changed

circumstances. She states the only evidence of changed circumstances is Carlos’s relocation to

Puerto Rico, which was contemplated before the parties executed the Mediated Settlement

Agreement. In his appellee’s brief, Carlos affirmatively states his relocation to Puerto Rico was

not the changed circumstance upon which the trial court’s finding was predicated. Carlos instead

argues there is evidence of three changed circumstances that are material and substantial: (1)

Victoria began interfering with his ability to spend time with and contact the children; (2)

Victoria’s and his exchanging of the children’s passports “caused a great deal of conflict between”

Victoria and Carlos; and (3) Victoria increased the children’s time commitments to sports and

extracurricular activities. In her reply brief, Victoria responds that even if this is evidence of

materially and substantially changed circumstances, the specific changed circumstances would not

authorize the trial court to modify the agreed final order ad infinitum, such as a modification

regarding the children’s psychiatric and psychological care.

               a. Carlos’s Relocation to Puerto Rico

       We note at the outset that the evidence shows Carlos and Victoria were living together at

the time the parties executed the Mediated Settlement, but then Carlos moved to Puerto Rico.

Although Carlos claims his move to Puerto Rico was not the trial court’s reason for finding

materially and substantially changed circumstances, the dissent relies on evidence that Carlos and

Victoria were no longer living together after the Mediated Settlement Agreement, and we must

affirm the trial court’s finding if there is any evidence of a substantive and probative character to

support the finding. See In re C.M.G., 339 S.W.3d at 319. As previously noted, a parent’s

relocation may, depending upon the distance, constitute a material and substantial change in

circumstances. Because the agreed final order expressly addresses Carlos’s relocation to Puerto

Rico, the record establishes the parties anticipated Carlos’s relocation to Puerto Rico when they
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executed the Mediated Settlement Agreement. Carlos’s relocation to Puerto Rico therefore cannot

constitute a material and substantial change of circumstances. See In re N.T.P., 402 S.W.3d at 19.

Consequently, the evidence that Carlos moved to Puerto Rico does not support the trial court’s

finding of materially and substantially changed circumstances. See id. We therefore turn to the

evidence Carlos argues supports the trial court’s finding of materially and substantially changed

circumstances.

                 b. Victoria’s Interference with Carlos’s Ability to Contact and Spend Quality
                    Time with the Children without Victoria’s Presence

       Carlos relies on evidence that he argues shows Victoria interfered with his ability to contact

the children and spend quality time with them without her presence. Carlos testified at trial that

before the Mediated Settlement Agreement, he had spent a lot of time alone with the children on

Saturdays and part of Sunday. He testified he and the children had a routine of daily events, such

as going to IHOP in the morning, then either to archery or horseback riding, having lunch, and

“run[ning] around and do[ing] a bunch of stuff” before going back home. Carlos further testified

that after he and Victoria signed the Mediated Settlement Agreement, Victoria “no longer wanted

[them] to go to IHOP. She said the people that went there were dirty. She did not want [them]

going to the archery or horseback riding.” He also testified Victoria “would want to go to certain

other things” with him and the children, such as going to lunch. According to Carlos, Victoria no

longer wanted him to “put the boys to bed at night” and would stand by the door when he did so.

Carlos also testified that before the Mediated Settlement Agreement, he spoke with the children

on the phone “all the time” and after the Mediated Settlement Agreement, Victoria either would

not answer the phone and would not call back, or would answer and not let Carlos talk to the

children.




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                                                                                     04-17-00220-CV


       Carlos argues this evidence shows that post-Mediated Settlement Agreement changes

“threatened the children’s ability to maintain a close relationship with” him and deprived the

children of their “opportunity to favorably associate with” him. However, the trial court made no

such specific findings. There is no evidence showing what effect these changes had on the children

and how these changes negatively affected the children’s relationship with Carlos. There is also

no evidence showing that before the Mediated Settlement Agreement, Victoria was not present

when the children were with Carlos at various activities. See Zeifman, 212 S.W.3d at 594 n.1.

       Furthermore, the agreed final order, which was based on the Mediated Settlement

Agreement, provided the parties’ respective periods of possession of the children. Carlos’s desire

to spend more time with the children (either in person or on the phone or during Victoria’s periods

of possession) and disagreements about the children eating at IHOP, participating in archery, and

going horseback riding, do not constitute materially and substantially changed circumstances. See

Karanja, 546 S.W.3d at 741-42; In re C.H.C., 392 S.W.3d at 351-52. We therefore hold the above-

described evidence does not support the trial court’s finding of materially and substantially

changed circumstances.

               c. Conflict Regarding the Exchange of the Children’s Passports

       Carlos also relies on evidence showing there was a conflict between him and Victoria about

exchanging the children’s passports and Carlos had to file a motion to enforce the agreed final

order. The agreed final order contained a section titled “Travel Provisions for Out of the Country,”

which establishes that the parties contemplated the children’s travel outside of the country.

Furthermore, a parent’s desire to travel internationally with the children and complications

therewith do not constitute materially and substantially changed circumstances. See Karanja, 546

S.W.3d at 741-42. This evidence does not support the trial court’s finding.



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                                                                                       04-17-00220-CV


               d. Excessive Involvement in Sports & Extracurricular Activities

       Carlos also argues the amount of time the children were involved in seasonal sports and

extracurricular activities significantly increased after the Mediated Settlement Agreement. Carlos

testified the children were involved in various activities at the time of the Mediated Settlement

Agreement, but there was a “drastic change” after the Mediated Settlement Agreement. Carlos

explained that before the Mediated Settlement Agreement, A.B.R. and W.C.R. had one hour of

basketball practice and one game a week. Carlos further testified that after the Mediated Settlement

Agreement, A.B.R. and W.C.R. were involved in sports seven days a week. He also stated that

after the Mediated Settlement Agreement, K.R.R. took diving lessons for two to three hours every

week, ballet lessons for an hour a week, and a reading class for two hours each week. Carlos

testified the children are now “booked solid with sports and activities . . . [s]o we don’t get the

alone time that we used to get where we could just talk about things.” In his appellee’s brief, Carlos

acknowledges some evidence shows the children were involved in more activities before the

Mediated Settlement Agreement, but argues “it is the number of hours, not the number of activities,

that interferes with Carlos’s possession time.”

       It is undisputed that the children were involved in many of the same sports and

extracurricular activities both before and after the Mediated Settlement Agreement, and much of

their time spent in sports and extracurricular activities was during Victoria’s periods of possession.

In the agreed final order, Carlos agreed to a provision that expressly states his periods of possession

shall “not interfere with the children’s attendance at school or the children’s school related

activities and sports the children are participating in.” Although the Mediated Settlement

Agreement contains no provision for how Carlos and Victoria would decide what sports and

extracurricular activities in which the children should be involved, Carlos expressly consented to

prioritizing the children’s involvement in sports over his subjective preferences for the activities
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he wanted the children to be involved in during his periods of possession. Thus, the record

establishes the parties expressly contemplated a conflict—and agreed how they would resolve any

such conflict—between Carlos’s desires for his periods of possession and the children’s

involvement in sports and extracurricular activities. This evidence therefore does not support the

trial court’s finding of materially and substantially changed circumstances. See In re N.T.P., 402

S.W.3d at 19.

       Furthermore, a significant number of hours that children spend involved in seasonal sports

and extracurricular activities is not comparable to changed circumstances that courts have found

to be material and substantial, such as a parent’s remarriage, distant relocation, severe neglect or

abuse, drug or alcohol abuse, and poisoning a child’s mind against another parent. Instead, an

increase in the number of hours that children spend involved in seasonal extracurricular activities

is more similar to changes courts have held are not material and substantial, such as minor loss of

contact with the child; a parent’s decreased participation in raising a child; a parent’s desire, but

inability, to have a child travel internationally; and a parent’s desire to spend more time with a

child. See Karanja, 546 S.W.3d at 741-42; In re C.H.C., 392 S.W.3d at 351-52; Kelly, 2012 WL

5476840, at *5; Zeifman, 212 S.W.3d at 593-94.

       Although we decline to hold that a significant increase in the amount of time a child spends

on sports and extracurricular activities could never constitute a material and substantial change in

circumstances, the evidence in this case does not support such a finding. See, e.g., Rooney v.

Rooney, No. 14-10-01007-CV, 2011 WL 3684618, at *4 (Tex. App.—Houston [14th Dist.] Aug.

23, 2011, no pet.) (mem. op.) (holding involvement in more activities, in addition to other changes,

was material and substantial to modify child support amount because it affected costs to address

the children’s needs). Carlos testified, and the trial court found, that the children were involved in

too many sports and activities, and this involvement had a significant effect on Carlos’s ability to
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                                                                                                 04-17-00220-CV


enjoy quality time and effectively communicate with the children. Carlos’s chief complaint at trial

was, specifically, the amount of time A.B.R. and W.C.R. spent playing basketball. 3 But the

undisputed evidence showed A.B.R. and W.C.R.’s basketball season lasted only from December

to March. Furthermore, the trial court made no findings, and there is no evidence showing, that the

children’s involvement in sports and extracurricular activities adversely affected the children.

Instead, the evidence showed the children love their sports and activities, A.B.R. and W.C.R.’s

sports schedules do not interfere with their school work, and A.B.R. and W.C.R.’s peers play on

the same teams and have the same schedule. On this record, we hold the increase in the number of

hours A.B.R. and W.C.R. spent involved in sports and other extracurricular activities is not a

material and substantial change of circumstances that justifies “the disturbing influence of re-

litigation” and that overcomes the strong public policy of requiring “a high degree of stability in

the home and surroundings of a young child.” See Knowles, 437 S.W.2d at 817.

                 e. The Parties’ Divorce & the Children’s Relationship with their Therapist

        None of the evidence that Carlos relies on in his appellee’s brief supports the trial court’s

finding of materially and substantially changed circumstances. Nevertheless, as we have noted, we

must affirm the trial court’s finding if there is any evidence of a substantive and probative character

to support the finding. See In re C.M.G., 339 S.W.3d at 319. The dissent identifies additional

evidence that might appear to support the trial court’s finding: (1) evidence indicating the parties

temporarily agreed not to get divorced; and (2) evidence that the children began to distrust their

therapist.

        Regarding the parties’ divorce, the evidence shows that Victoria’s petition for divorce

would be nonsuited as part of the Mediated Settlement Agreement. Victoria testified that after a


3
 We note there is no evidence showing the amount of time K.R.R. spent in activities before the Mediated Settlement
Agreement.

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                                                                                       04-17-00220-CV


conversation with the children’s therapist, she concluded “the only way to protect [the] children

was to stay married to Carlos until they were at least in high school.” We reemphasize that (1) to

prove a material and substantial change in circumstances, we must compare evidence of the

circumstances existing at the time the parties executed the Mediated Settlement Agreement and

the evidence of those circumstances after the Mediated Settlement Agreement was executed, and

(2) changed circumstances anticipated at the time of the Mediated Settlement Agreement cannot

constitute a material and substantial change in circumstances as a matter of law. See In re N.T.P.,

402 S.W.3d at 19; Zeifman, 212 S.W.3d at 594 n.1. Furthermore, the changed circumstances must

be material to some aspect of the parent–child relationship that justifies changing an order affecting

the parent–child relationship. See Karanja, 546 S.W.3d at 741-42. Although Victoria nonsuited

her divorce petition in order to remain married to Carlos temporarily, Victoria and Carlos had

actually separated, and Victoria was contemplating a divorce in the future. The parties’ separation,

and the contemplated possibility of a divorce in the future, was memorialized in the agreed order’s

provision imposing a geographical restriction. The agreed order stated the geographical restriction

was made pursuant to Texas’s public policy regarding parents “raising their child[ren] after the[y]

have separated or dissolved their marriage.” And although the parties’ finalization of a divorce

after their actual separation may be a substantial change as to the parties individually and in their

relationship with each other, there is no evidence showing how the finalization of the divorce was

material to any aspect of the parent–child relationship not already contemplated when the parties

had separated and executed the Mediated Settlement Agreement. See id.

       We similarly hold the evidence of the children’s communication difficulties with their

therapist is not evidence of a material and substantial change in circumstances. Although our

inquiry is not guided by rigid rules, our determination of whether there is a material and substantial

change in circumstances is governed by an overarching public policy principle: the change in
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circumstances must justify “the disturbing influence of re-litigation.” See Knowles, 437 S.W.2d at

817; Zeifman, 212 S.W.3d at 593. The children’s therapist, Dr. Joann Murphey, testified only that

the children are “getting closed down and mistrusting.” She did not testify about how the particular

communication difficulties affected the children or the effectiveness of their therapy. Without

more, we cannot say a child’s mere communication difficulties with the child’s therapist justify

the disturbing influence of relitigating child-custody issues. See Knowles, 437 S.W.2d at 817.

         4. Conclusion as to Materially & Substantially Changed Circumstances

         We have reviewed the entire record and have found no other evidence showing a material

and substantial change in circumstances. Because no evidence of a probative and substantive

character supports the trial court’s finding of materially and substantially changed circumstances,

we hold the trial court abused its discretion. 4 We therefore reverse the trial court’s order modifying

the agreed final order and render judgment denying Carlos’s petition to modify and Victoria’s

conditional counterpetition to modify the agreed final order. See Karanja, 546 S.W.3d at 742; In

re C.H.C., 392 S.W.3d at 352; Zeifman, 212 S.W.3d at 596.

B. Victoria’s Remaining Issues

         Victoria’s remaining issues challenge other trial court rulings, findings, and parts of the

modification order. Because we reverse and render judgment as to the trial court’s modifications

of the agreed final order, and Victoria’s remaining issues would not entitle her to any greater relief,

we need not address those issues. See TEX. R. APP. P. 47.1. We therefore turn to addressing the

issues in Carlos’s cross-appeal.



4
  Alternatively, even if the additional time A.B.R. and W.C.R. played basketball was a material and substantial change
of circumstances, this changed circumstance was not sufficiently connected to all of the modifications the trial court
made to the agreed order. See Karanja, 546 S.W.3d at 741-42 (“[T]he relief the trial court may grant must be somehow
connected to the changed circumstance. For example, a remarriage may require some changes but does not mean that
the trial court may now modify other provisions in the original divorce decree unrelated to the remarriage.”).

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                                                                                        04-17-00220-CV


                                     CARLOS’S CROSS-APPEAL

        In his cross-appeal, Carlos challenges the trial court’s order that he pay a $50,000 bond

into the registry of the court and the award of $150,000 in attorney’s fees to Victoria.

A. Bond

        Carlos argues the trial court erred by ordering him to pay a $50,000 cash bond into the

registry of the court. The modification order provided the cash bond could become payable to

Victoria if Carlos filed a further petition for modification and would be held until all of the children

had graduated from high school or reached the age of eighteen. Victoria requested that the trial

court order Carlos to post a $50,000 bond “[b]ased upon [Carlos]’s threats of litigation and past

litigious conduct” and the purpose of the bond was for Victoria’s attorney’s fees “in the event

[Carlos] files a subsequent modification action.” During trial, Victoria testified Carlos often

threatened to sue people and had threatened to continue suing her to squander her resources.

        Carlos complains that Victoria’s pleadings requested relief to address a hypothetical issue

and the trial court lacked jurisdiction to grant the requested relief for an issue that was not ripe.

“Ripeness is a component of subject-matter jurisdiction.” In re Coppola, 535 S.W.3d 506, 510

(Tex. 2017) (orig. proceeding). Ripeness is a threshold issue “that emphasizes the need for a

concrete injury for a justiciable claim to be presented.” Robinson v. Parker, 353 S.W.3d 753, 755

(Tex. 2011). In evaluating ripeness, we consider whether the claimed injury has occurred or is

likely to occur, and is not merely contingent or remote. Id. If a party does not demonstrate a

reasonable likelihood that a claim will soon ripen, “the case must be dismissed.” Id.

        Victoria’s request was based expressly on a possible future injury, rather than an existing

injury, and thus she bore the burden of demonstrating a reasonable likelihood that her claim would

soon ripen. See id. In its second amended findings of fact and conclusions of law, which replaced

the trial court’s prior findings of fact and conclusions of law, the trial court made no finding that
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                                                                                                          04-17-00220-CV


it was reasonably likely Carlos would file a subsequent petition to modify. See Bos v. Smith, No.

16-0341, 2018 WL 2749714, at *10 (Tex. June 8, 2018) (stating “[a]mended pleadings supersede

prior pleadings”); Waters v. Yockey, 144 Tex. 592, 594, 192 S.W.2d 769, 769-70 (1946) (holding

issuing new set of findings clearly shows trial court’s intent to substitute new findings for first set

of filings). 5 Because Victoria did not establish an existing injury or a reasonable likelihood that

her claim would soon ripen, the trial court erred by requiring Carlos to pay $50,000 into the registry

of the court, and Victoria’s request for a cash bond “must be dismissed.” See Robinson, 353 S.W.3d

at 755.

          Victoria contends the trial court has authority to require a parent to post a bond or security

under Title 5 of the Texas Family Code. But the provisions of Title 5 on which Carlos relies require

predicate findings and that the bond be to secure performance with the trial court’s order. See TEX.

FAM. CODE. ANN. § 153.011 (West 2014) (permitting bond to secure compliance with trial court’s

order, if the trial court finds party might violate court order); id. § 153.503 (permitting bond if trial

court finds measures are necessary “to protect a child from international abduction”); id. § 157.109

(permitting bond if trial court finds past denial of possession or access or if employer is not subject

to court’s jurisdiction). Here, there are no predicate findings supporting the bond, and the bond is

not related to securing Carlos’s performance with any part of the modification order. We conclude

the trial court erred, reverse the part of the modification order requiring Carlos to pay a $50,000,

and render judgment dismissing Victoria’s request that Carlos post a bond for lack of subject

matter jurisdiction. See Robinson, 353 S.W.3d at 755.




5
  Even if we were to consider the “Additional Findings of Fact” that the trial court made before the second amended
findings of fact and conclusions of law, the findings were insufficient. The trial court found only that Carlos “may
initiate more litigation pertaining to the parties’ children as a way to harass Victoria.” The trial court did not find there
was a reasonable likelihood that Carlos would do so. See Robinson, 353 S.W.3d at 755.

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B. Attorney’s Fees

       Carlos also argues the trial court abused its discretion by awarding Victoria $150,000 in

attorney’s fees under section 106.002 of the Texas Family Code because she was not the prevailing

party and there was no other good cause for awarding her attorney’s fees. Section 106.002 of the

Texas Family Code provides:

       (a) In a suit under this title, the court may render judgment for reasonable attorney’s
       fees and expenses and order the judgment and postjudgment interest to be paid
       directly to an attorney.

       (b) A judgment for attorney’s fees and expenses may be enforced in the attorney’s
       name by any means available for the enforcement of a judgment for debt.

TEX. FAM. CODE. ANN. § 106.002 (West 2014). Section 106.002 is not a “prevailing party” statute

that requires a party to prevail on her claims before being awarded attorney’s fees because it is

often difficult in family law cases to determine which party has prevailed. See Coburn v. Moreland,

433 S.W.3d 809, 840 (Tex. App.—Austin 2014, no pet.). This case is no different. Although the

trial court granted Carlos’s petition to modify in several respects, Victoria also prevailed in part.

In light of our decision reversing the trial court’s order, the trial court’s determination as to

attorney’s fees might be different on remand. See Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996).

The trial court should have an opportunity to reconsider the award of attorney’s fees in light of our

judgment. See id. at 368-69.

                                           CONCLUSION

       We reverse the trial court’s modification order in its entirety. We render judgment denying

Carlos’s petition to modify, denying Victoria’s cross-petition to modify, and dismissing Victoria’s

request to have Carlos post a $50,000 cash bond. The case is remanded for the trial court to

reconsider the issue of attorney’s fees.

                                                   Luz Elena D. Chapa, Justice


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