                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS


                                                            §
                                                                            No. 08-19-00008-CV
                                                            §
    IN THE INTEREST OF S.G., A CHILD                                           Appeal from the
                                                            §
                                                                             322nd District Court
                                                            §
                                                                          of Tarrant County, Texas
                                                            §
                                                                            (TC# 322-521747-12)
                                                            §

                                      MEMORANDUM OPINION1

        Robert Greene (“Father”) and Timeekah L’Sher Lane (“Mother”) are the parents of S.G.,

a minor child. Father appeals from the trial court’s order granting Mother’s petition to modify a

prior order in a Suit Affecting the Parent-Child Relationship on issues involving both

conservatorship and child support. Father contends that the trial court abused its discretion by (1)

deviating from the statutory child support guidelines, (2) by not providing him with his preferred

possession schedule in light of his employment as a fireman, and (3) by giving Mother the

exclusive right to make decisions about the “child’s hair, schooling, and extracurricular activities.”

Father also contends that the evidence was insufficient to support the trial court’s decision ordering



1
 See TEX.R.APP.P. 47.4. This case was transferred to us from the Second Court of Appeals pursuant to the Texas
Supreme Court’s docket equalization efforts. We apply the precedents from that court where they might conflict with
our own. TEX.R.APP.P. 41.3.

                                                        1
him to pay $2,500 of Mother’s attorney’s fees. We affirm.

                                          I. BACKGROUND

          A. The Prior Order

          On October 31, 2013, the trial court issued a Final Order in a Suit Affecting the Parent-

Child Relationship appointing Father and Mother as joint managing conservators of S.G. and

giving Mother the exclusive right to designate S.G.’s residence. In light of Father’s employment

as a fireman, the trial court included an “expanded standard possession” schedule in the Final

Order, allowing Father to pick up S.G. from school any day that he was not working and to return

her to Mother’s home by 6:30 p.m. that same day. In addition, the trial court gave Father the right

to possession of S.G. on the first, third, and fifth weekends of each month throughout the school

year, beginning at the time her school was dismissed on Friday, and ending at the time school

resumed after the weekend. The court also gave Father possession of S.G. each Thursday,

beginning at the time S.G.’s school was dismissed and ending at the time her school resumed on

Friday.

          The original Final Order calculated Father’s net resources at $4,208.80, and set child

support at 17.81 percent of that amount, obligating Father to pay $750 monthly to Mother. The

trial court deviated from the standard statutory guideline for setting child support, which would

normally be 20 percent for the support of one child, “due to the amount of time that [Father] spends

with the child.”

          B. Mother’s Petition to Modify and Father’s Counter-Petition

          On September 21, 2016, Mother filed a petition to modify the trial court’s prior order,

seeking a modification of Father’s monthly child support obligations. In part, her request was

based on the fact that S.G. had been attending a private school, and that she anticipated the monthly



                                                  2
tuition cost would increase from $905 to $1,300 a month in 2018.           Although Mother had

previously been solely responsible for paying the child’s tuition, she requested that Father be

ordered to pay 50 percent of the child’s school tuition, in addition to his monthly child support

obligation. In an amended petition, Mother also requested the court modify the possession

schedule, seeking to replace the previously ordered expanded possession order with a standard

possession order. Father answered and filed his own counterpetition to modify. He sought a

“standardized fireman schedule” for his possession of S.G. during the school year, and further

requested that the child support obligation be terminated or otherwise decreased due to a change

in his circumstances.

       C. The Trial

       At a bench trial, Mother testified that Father had violated the existing expanded possession

order. She specifically complained that he had: (1) not afforded Mother the right of first refusal

to have possession of the child when he was not available due to his work schedule; (2) he allowed

other individuals, including Father’s girlfriends, coworkers, and his brother who was a convicted

felon, to take care of S.G. when he was working; (3) he caused S.G. to be tardy on four or five

occasions during the most recent school year; and (4) he caused S.G. to miss some of her extra-

curricular activities during Father’s periods of possession. In addition, she also testified that

Father generally made it difficult for her to communicate with S.G. during his periods of

possession. In particular, Father had refused to allow S.G. to use an iPad that Mother had

purchased for S.G. to contact her when she was in Father’s possession.

       S.G. had been attending St. Joseph’s Catholic School (a private school) in accordance with

the parties’ prior agreement. Mother, however, wished to enroll S.G. in Bishop Dunne Catholic

School (another private school), when S.G. entered middle school during the 2018 to 2019 school



                                                3
year. Mother, who is an alumnus of Bishop Dunne, testified about the benefits of enrolling S.G.

in that school, noting that it had better course offerings than St. Joseph’s, including more college

prep classes and French classes, as well as better extracurricular activities. Mother also testified

that Bishop Dunne was closer to where she was employed and that S.G. had already been accepted

at Bishop Dunne. Mother acknowledged that the tuition cost at Bishop Dunne was more than that

of St. Joseph’s, (but that the tuition cost could be reduced if they informed the school of Father’s

status as a member of the Catholic Church). Mother agreed that she did not try to communicate

with Father about Bishop Dunne before she submitted S.G.’s application, as she believed it would

be futile to do so. The parties had already been having difficulty communicating about various

other issues, including matters related to the maintenance of S.G.’s hair and Father’s refusal to

allow S.G. to use the iPad.

       Father also testified at the trial. He acknowledged the disagreements over various issues,

including the maintenance of S.G.’s hair and the use of the iPad. He acknowledged that he had

allowed other individuals, including his brother, to transport S.G. to and from school when he had

work obligations. However, he believed that the possession schedule was still workable and in

S.G.’s best interest. Father also expressed his opinion that it was in S.G.’s best interest to remain

at St. Joseph’s, rather than allowing her to transfer to Bishop Dunne, noting that St. Joseph’s

offered accelerated programs, and that S.G. was thriving at the school, getting good grades, and

was participating in a variety of sports. And finally, he testified that if his monthly child support

obligation was reduced to $238, he would be willing to pay 50 percent of S.G.’s private school

tuition, but that he wanted to have input into what school she attended.

       D. The Trial Court’s Order on Modification

       Following trial, and after interviewing S.G., the trial court issued its Final Order on



                                                 4
Mother’s petition to modify, and later entered findings of fact and conclusions of law at Father’s

request.    In its order, the trial court ruled that the parties should remain joint managing

conservators, and that Mother would continue to have the exclusive right to designate S.G.’s

residence. The trial court, however, modified Father’s possession schedule as follows as follows:

       1.       Weekend Possession During the School Year:

               When the regular work shift ends on a Friday - Beginning at the time
       ROBERT GREENE’S regular work shift ends on a Friday, then ROBERT
       GREENE shall have the right to possession of the child beginning at the time the
       child's school is regularly dismissed on the Friday on which his shift ends and
       ending at 6:00 p.m. on the following Saturday.

              When the regular work shift ends on a Saturday - Beginning at the time
       ROBERT GREENE'S regular work shift ends on a Saturday, then ROBERT
       GREENE shall have the right to possession of the child beginning at 9:00 a.m. on
       the Saturday on which his shift ends and ending at 6:00 p.m. on the following
       Sunday.

       2.       Weekday Possession During the School Year:

              When the regular work shift ends on a Monday, Tuesday or
       Wednesday - ROBERT GREENE shall have the right of possession of the child
       beginning at 5:00 p.m. on the day on which his shift ends and ends at 8:00 p.m. that
       same day.

       The trial court held that Mother had the “exclusive right” to make decisions pertaining to

the maintenance of S.G.’s hair, decisions about S.G.’s educational needs, including the selection

of her school, and decisions about her selection of extracurricular activities. The trial court further

directed Mother to enroll S.G. in Bishop Dunne, as the Mother’s school of choice, utilizing

Father’s membership in the Catholic Church to help defray costs.

       The trial court also modified Father’s monthly child support obligations, calculating

Mother’s net monthly resources at $4,362.10, and Father’s net monthly resources at $5,534.54.

The trial court set Father’s monthly child support obligation in accordance with the percentage

guidelines at $1,065, but ordered him to pay an additional $300, based on a percentage of S.G.’s

                                                  5
private school tuition, for a total monthly obligation of $1,365. And finally, the trial court ordered

Father to pay $2,500 in attorney’s fees to Mother. This appeal follows.

                                       II. ISSUES ON APPEAL

        Father raises four issues on appeal. First, he argues that the trial court abused its discretion

in deviating from the statutory guidelines in setting child support by ordering him to pay part of

S.G.’s private school tuition. Second, he claims that the trial court abused its discretion in

modifying the possession schedule, arguing that the new schedule unreasonably interferes with his

access to S.G. and was not in her best interest. Third, he argues that there was insufficient

evidence to support the entry of the additional provisions giving Mother the exclusive right to

make decisions regarding S.G.’s hair, her education, and her extracurricular activities. Finally,

Father contends that there was insufficient evidence to support the trial court’s award of attorney’s

fees.

                III. MODIFICATION OF FATHER’S CHILD SUPPORT OBLIGATION

        In his first issue, Father argues that the trial court abused its discretion in deviating from

the statutory guidelines by ordering him to pay an additional $300 a month for S.G.’s private school

tuition. He advances two reasons. First, he argues that Mother did not request this deviation,

and he contends that he was therefore denied notice that the trial court was considering a deviation.

Second, he argues that the trial court abused its discretion in ordering the deviation, contending

that Mother presented insufficient evidence to rebut the presumption that the statutory guidelines

for setting child support were in the child’s best interest or that private school tuition was a “proven

need” of the child.

        A. Standard of Review on Child Support Modifications

        A court may modify a prior child support order if the circumstances of the child or a person



                                                   6
affected by the order have materially and substantially changed since the order was rendered.

TEX.FAM.CODE ANN. § 156.401(a)(1)(A), (a)(2). The person seeking a modification of child

support has the burden of showing a material and substantial change. In re J.A.H., 311 S.W.3d

536, 541 (Tex.App.--El Paso 2009, no pet.). As in all matters pertaining to the parent-child

relationship, the “best interest of the child is always the trial court’s primary consideration[.]” Id.

A trial court retains broad discretion in making the equitable decision of whether to modify a prior

support order. Id. at 541-542. In determining whether the trial court abused its discretion, we

engage in a two-pronged inquiry: “(1) [d]id the trial court have sufficient information upon which

to exercise its discretion, and (2) did the trial court err in its application of discretion?” In re

J.A.H., 311 S.W.3d at 540; see also In re T.M.P., 417 S.W.3d 557, 562 (Tex.App.--El Paso 2013,

no pet.). The operative inquiry in the first question is the sufficiency of the evidence. In Interest

of C.M.V., 479 S.W.3d 352, 358 (Tex.App.--El Paso 2015, no pet.).

       In determining whether there is legally sufficient evidence to support the trial court’s

decision, we consider the evidence in the light most favorable to the findings necessary to support

the decision, and disregard evidence contrary to the findings unless a reasonable fact finder could

not. In re T.M.P., 417 S.W.3d at 562, citing City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.

2005). When reviewing the factual sufficiency of the evidence, we consider and weigh all of the

evidence, and will set aside a finding only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. In re J.A.H., 311 S.W.3d at 541. In both

instances, we are mindful that the trier of fact is the sole judge of the credibility of the witnesses

and the weight to be given their testimony, and we may not substitute our judgment for that of the

trial court. Id. When there is conflicting evidence, it is the province of the trier of fact to resolve

such conflicts. Id. Even if evidence is undisputed, it is the province of the trier of fact to draw



                                                  7
from the evidence “whatever inferences it wishes so long as more than one inference is possible.”

Id. However, if the evidence allows only one inference, neither the trier of fact nor the reviewing

court may disregard it. Id.

       Once we have determined whether sufficient evidence exists, we must then decide whether

the trial court made a reasonable decision, or conversely, whether the ruling was arbitrary and

unreasonable. Id. at 540. The test for determining whether a trial court abused its discretion is

not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial

court’s action, but whether the court acted without reference to any guiding rules and principles.

Id. at 541, citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

       B. Child Support Guidelines

       The Texas Family Code provides guidelines for setting a party’s child support obligations,

which are considered as presumptively in the best interest of the child. TEX.FAM.CODE ANN.

§ 154.122(a). The Code provides that when, as here, the parties have one child and the obligor’s

monthly net resources are not greater than $7,500 a month, the trial court shall presumptively base

its child support award on 20 percent of the obligor’s net resources. Id. §§ 154.062; 154.125.

However, the presumption is rebuttable, and a trial court has the discretion to “determine that the

application of the guidelines would be unjust or inappropriate under the circumstances.” Id.

§ 154.122(b). The Code expressly provides that a court may order “periodic child support

payments in an amount other than that established by the guidelines if the evidence rebuts the

presumption that application of the guidelines is in the best interest of the child and justifies a

variance from the guidelines.” Id. § 154.123(a).

       The Code sets forth a variety of additional factors a court may consider in determining

whether it is in the child’s best interest to deviate from the guidelines, including the “age and needs



                                                  8
of the child,” the ability of the parents to contribute to the support of the child, the amount of time

of possession of and access to a child, child care expenses incurred, “special or extraordinary

educational . . . or other expenses of the parties or of the child,” and “any other reason consistent

with the best interest of the child, taking into consideration the circumstances of the parents.” Id.

§ 154.123; see also Lide v. Lide, 116 S.W.3d 147, 155-56 (Tex.App.--El Paso 2003, no pet.)

(recognizing that a court may order support above or below the guideline amount if the evidence

rebuts the presumption that application of the guidelines is in the best interest of the children and

justifies a variance from the guidelines). If the trial court deviates from the statutory guidelines,

Section 154.130 of the Code requires a trial court to make certain findings, including (1) the

percentage applied to the obligor's net resources to obtain the child support ordered by the court,

(2) the amount child support would be if the percentage guidelines were applied to the obligor's

net resources, and (3) the specific reasons that the amount of child support ordered by the court

varies from the amount that would result from application of the guidelines. § 154.130(b)(3)-(5).

       C. Analysis

               1. Pleading Issues

       Father first argues that the trial court erred in deviating from the statutory guidelines,

because Mother neither pleaded for, nor requested a deviation. He contends that the trial court

lacked the authority to deviate from the guidelines in the absence of any such request, and that he

did not receive fair notice that the trial court was considering such a deviation.

       In support of his argument, Father relies on the proposition that a judgment is erroneous if

not supported by the pleadings. See TEX.R.CIV.P. 301. Father is correct that a judgment must

generally conform to the pleadings filed in a case. Id. However, in cases involving child custody

and child support issues, where the “best interest” of the child is the paramount concern, technical



                                                  9
pleading rules do not carry the same weight as they would in a typical civil case. See, e.g., In

Interest of J.H. III, 538 S.W.3d 121, 125 (Tex.App.--El Paso 2017, no pet.); In re L.D.F., 445

S.W.3d 823, 832 (Tex.App.--El Paso 2014, no pet.); see also Leithold v. Plass, 413 S.W.2d 698,

701 (Tex. 1967) (recognizing that technical rules of practice and pleadings are of little importance

in determining issues concerning the custody of children).2 Once a child is brought under the trial

court’s jurisdiction by the filing of a suit asking the court to resolve custody and child support

issues, it becomes the duty of the court “in the exercise of its equitable powers to make proper

disposition of all matters comprehended thereby in a manner supported by the evidence.” Wood

v. Wood, 510 S.W.2d 399, 402 (Tex.Civ.App.--Fort Worth 1974, no writ); see also Lohmann v.

Lohmann, 62 S.W.3d 875, 878-79 (Tex.App.--El Paso 2001, no pet.). Therefore, when the

parties’ pleadings request a modification of a child support or custody order, the parties have “fair

notice” of the issues to be decided in the litigation, and the pleadings need not request the “specific

modifications” ultimately made by the trial court.3 In re Macalik, 13 S.W.3d 43, 45 (Tex.App.--

Texarkana 1999, no pet.), citing Leithold, 413 S.W.2d at 701.

         Moreover, in the present case, both parties not only requested that the trial court modify

Father’s child support obligations, but both parties requested that the trial court deviate from the

statutory guidelines in making its modifications. In her petition to modify, Mother alleged that

S.G.’s tuition would be increasing by $395 in 2018, and she expressly requested that Father be



2
 But see Baltzer v. Medina, 240 S.W.3d 469, 476 n.5 (Tex.App.--Houston [14th Dist.] 2007, no pet.) (suggesting that
TEX.FAM.CODE ANN. § 156.004 supersedes the holding in Leithold.
3
  Father relies on In re A.A.N., No. 02-13-00151-CV, 2014 WL 3778215, at *2 (Tex.App.--Fort Worth July 31, 2014,
no pet.) (mem. op., not designated for publication), in which the court held that a permanent injunction could not stand
in the absence of pleadings expressly requesting the injunction, a request for a trial amendment to raise the issue, or a
trial of the issue by consent. Unlike the situation in A.A.H., in which the issue of whether to grant a permanent
injunction was not before the court, in the present case, both parties requested a modification of Father’s child support
obligation, and therefore, the question of whether and how to modify the prior support order was squarely before the
court.

                                                          10
ordered to pay 50 percent of the child’s school tuition, in addition to his monthly child support

obligations. In his pleadings, Father expressly requested a downward deviation from the statutory

support guidelines, and at trial, he requested that the court set his monthly support obligation at

$238.26, due to the amount of time that S.G. spent with him (however, he indicated that under

certain conditions he would be willing to pay 50 percent of S.G.’s private school tuition in addition

to that amount). Accordingly, both parties were on notice of the possibility that the trial court

could deviate from the statutory support guidelines--either in an upward or downward manner--

and in particular, Father was on notice that the trial court might order him to pay a portion of S.G.’s

private school tuition as part of his child support obligation.

                2. Deviation from the Guidelines

        Father next argues that even if properly requested, the trial court abused its discretion in

deviating from the guidelines by requiring him to pay a portion of S.G.’s private school tuition,

arguing there was insufficient evidence to rebut the presumption that following the statutory

guidelines was in S.G.’s best interest.4 Father does not dispute that a trial court has the discretion

to order additional child support for payment of a child’s private school tuition, but points out that

before doing so, the trial court must be presented with evidence that attending a private school,

rather than a public school, was a “proven need” of the child. In other words, there must be some

evidence demonstrating that there is “something special that makes the particular child need or

especially benefit from some aspect of non-public schooling.” In re M.A.M., 346 S.W.3d 10, 17-

18 (Tex.App.--Dallas 2011, pet. denied) (concluding that the trial court abused its discretion by

increasing child support because mother presented no evidence that private school was a proven

need of the child); see also In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 381 (Tex.App.--


4
  Father does not raise any arguments regarding whether Mother met her burden of establishing a material and
substantial change in circumstances to support a modification, and we therefore do not address that issue.

                                                    11
Dallas 2013, no pet.) (absent any evidence of the child's proven needs, the trial court abused its

discretion in ordering father to pay private school tuition). Father argues that Mother presented

no evidence that there was a need to place S.G. in private school, and that to the contrary, the

record demonstrates that S.G. was a well-adjusted child, was getting good grades, and that she

would therefore be successful regardless of where she attended school, be it public or private.

       As Mother points out, however, throughout the trial court proceedings, Father never raised

the possibility that S.G. should attend public school. To the contrary, Father agreed that S.G.

should attend a private school, and only questioned which of the two private schools S.G. should

attend. In fact, the record demonstrates that the parties had agreed at the start of S.G.’s education

that she should attend a private Catholic school, and at trial, Father even offered to pay 50 percent

of S.G.’s private school tuition if his monthly child support obligations were otherwise lowered.

       Because Father never raised the possibility of having S.G. attend a public school, and since

he instead acquiesced in the decision to have S.G. attend a private school, he cannot now be heard

to complain for the first time on appeal that the trial court should have considered the possibility

of sending her to a public school. TEX.R.APP.P. 33.1(a)(1) (as a prerequisite to presenting a

complaint for appellate review, the record must show that the complaint was made to the trial court

by a timely request, objection, or motion); see also London v. London, 94 S.W.3d 139, 143

(Tex.App.--Houston [14th Dist.] 2002, pet. denied) (finding that mother waived issue regarding

placing restrictions on children’s primary residence, where she failed to raise the issue in the trial

court); Connors v. Connors, 796 S.W.2d 233, 236 (Tex.App.--Fort Worth 1990, writ denied)

(finding that father could not argue on appeal that trial court erred in failing to appoint him as

managing conservator where he never requested the appointment in the trial court). We therefore

conclude that the trial court did not abuse its discretion in ordering Father to pay a portion of S.G.’s



                                                  12
private school tuition as a proven need of the child.

       Father’s Issue One is overruled.

                      IV. MODIFICATION OF THE POSSESSION SCHEDULE

       In his second issue, Father contends that the trial court abused its discretion in modifying

the parties’ possession schedule, contending that the modification unreasonably restricted his

access to S.G. and was not in S.G.’s best interest.

       A. Standard of Review

       An appellate court reviews a trial court’s decision to modify a possession order under the

same abuse of discretion standard that we apply to modifications of child support obligations. In

re T.D.C., 91 S.W.3d 865, 872 (Tex.App.--Fort Worth 2002, pet. denied) (op. on reh’g); see also

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (applying abuse of discretion standard

with regard to possession order). The person seeking to modify an existing custody order bears

the burden to prove that the circumstances of the child, a conservator, or other party affected by

the custody order have materially and substantially changed since the previous custody order, and

that a modification would be in the child's best interest. TEX.FAM.CODE ANN. § 156.101; see also

In re T.M.P., 417 S.W.3d 557, 563 (Tex.App.--El Paso 2013, no pet.); Interest of E.M., No. 02-

18-00351-CV, 2019 WL 2635565, at *5 (Tex.App.--Fort Worth June 27, 2019, no pet.) (mem. op.,

not designated for publication). There is no bright-line rule for determining what is in a child's

best interest; each case must be determined on its unique set of facts. See Lenz v. Lenz, 79 S.W.3d

10, 19 (Tex. 2002).

       In determining a child’s best interest, a court may use the non-exhaustive list of the so-

called Holley factors, as set forth in the Supreme Court’s opinion in Holley v. Adams, 544 S.W.2d

367 (Tex. 1976). Those factors include (1) the desires of the child, (2) the emotional and physical



                                                 13
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, (7) the stability of the home, (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 acts or

omissions of the parent. Id. at 371-72. In the context of custody modification, other factors to

be considered include the child’s need for stability and the need to prevent constant litigation in

child-custody cases. V.L.K., 24 S.W.3d 338, 343 (Tex. 2000); see also Zeifman v. Michels, 212

S.W.3d 582, 595 (Tex.App.--Austin 2006, pet. denied).

       B. Analysis

       Mother presented testimony at trial to support a finding that a modification was warranted

because the expanded possession schedule from the original order had become unworkable. In

particular, she testified that Father had denied her the right of first refusal to have possession of

S.G. during times when he was unable to take care of her; that Father had allowed various other

individuals to take care of S.G. while he was at work; and that S.G. had been tardy to school and

had missed some of her extracurricular activities during the Father’s possession period.

Therefore, we conclude that the Mother met her burden of establishing that a material and

substantial change of circumstances had occurred since the time the prior order was entered. See,

e.g., In re K.J.L., III, No. 11-03-00091-CV, 2004 WL 2137810, at *7 (Tex.App.--Eastland Sept.

23, 2004, no pet.) (mem. op., not designated for publication) (modification of conservatorship

order was warranted where evidence demonstrated that child was tardy from or absent from school

while in the mother’s possession); In re Macalik, 13 S.W.3d at 46 (modification of possession

schedule was supported by sufficient evidence where evidence demonstrated that father was



                                                 14
unable to take possession of children in a timely manner due to his work schedule).

       Father’s argument focuses on the question of whether the modification was in S.G.’s best

interest. In particular, he contends that the modification was not the least restrictive means to

ensure S.G.’s best interest, and that the prior order better accommodated his work schedule, while

giving him more access to S.G. than would the modified order. In support of his argument, Father

relies primarily on Section 153.193 of the Texas Family Code, which provides that “[t]he terms of

an order that denies possession of a child to a parent or imposes restrictions or limitations on a

parent's right to possession of or access to a child may not exceed those that are required to protect

the best interest of the child.” TEX.FAM.CODE ANN. § 153.193. As Mother points out, the trial

court did not impose any restrictions or limitations on Father’s right to possession, such as

imposing supervised visitation, and did not deny him access to S.G.

       And any “limitations” on the right of possession must also be considered along with

Section 153.252 of the Family Code. That section creates a rebuttable presumption that the

“standard possession order” set forth in Section 153.312 “provides reasonable minimum

possession of a child” for a possessory conservator and is in the “best interest of the child.”

TEX.FAM.CODE ANN. § 153.252. The standard possession order provides that “the possessory

conservator shall have the right to possession of the child as follows: (1) on weekends throughout

the year beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m.

on the following Sunday; and (2) on Thursdays of each week during the regular school term

beginning at 6 p.m. and ending at 8 p.m., unless the court finds that visitation under this subdivision

is not in the best interest of the child.” TEX.FAM.CODE ANN. § 153.312. Although the Code

provides that a court “shall render an order that grants periods of possession of the child as similar

as possible to those provided by the standard possession order[,]” it recognizes that there may be



                                                  15
instances in which a party’s work schedule may make the standard order “unworkable or

inappropriate.”   TEX.FAM.CODE ANN. § 153.253.         In determining whether to enter a non-

standard possession order, a court may consider the following factors: “(1) the age, developmental

status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing

conservator and of the parent named as a possessory conservator; and (3) any other relevant

factor.” TEX.FAM.CODE ANN. § 153.256.

       In the present case, both parties agreed that the standard possession order set forth in the

Family Code was not workable or appropriate in light of Father’s work schedule. Therefore, both

parties requested that the trial court enter a non-standard possession order but disagreed on how

that order should be implemented. As Mother points out, it was then up to the trial court to craft

an order that gave Father “reasonable minimum possession” of S.G. and was in S.G.’s best interest

in accordance with the Family Code. As set forth above, the trial court’s order achieved this goal

by giving Father the right to possession of S.G. on various days throughout the week, depending

on when his shift ends, and allowing him overnight visits with S.G. when his shift ends on a

weekend. The trial court’s modified possession order was tailored to accommodate Father’s work

schedule, but more importantly, to ensure that he would be available to personally take care of

S.G. during his periods of possession. Given Mother’s testimony that Father was unable to

personally take care of S.G. during his periods of possession under the prior possession order, and

the problems this caused, the trial court’s order struck a balance between giving Father reasonable

minimum possession and serving S.G.’s best interest. Accordingly, we conclude that the trial

court’s modified possession order was supported by substantial evidence, and we therefore find no

abuse of discretion.

       Father’s Issue Two is overruled.



                                                16
                                   V. ADDITIONAL PROVISIONS

       In Issue Three, Father complains that the trial court abused its discretion by ordering

additional provisions that gave Mother the exclusive right to make decisions pertaining to the

maintenance of S.G.’s hair, her education, and the choice of her extracurricular activities. In

particular, Father contends that the evidence failed to demonstrate that these additional provisions

were in S.G.’s best interest.

       A. Trial Court has the Discretion to Award One Parent Exclusive Rights

       When a trial court appoints both parents as conservators of a child, the court is required to

“specify the rights and duties of a parent that are to be exercised: (1) by each parent independently;

(2) by the joint agreement of the parents; and (3) exclusively by one parent.” TEX.FAM.CODE

ANN. § 153.071. The Family Code expressly states that parents can be appointed joint managing

conservators “even if the exclusive right to make certain decisions may be awarded to one party.”

Id. § 101.016. The Code does not define how the trial court shall assign or implement the various

rights and duties of the conservators, and a trial court therefore retains broad discretion in “crafting

the rights and duties of each conservator so as to effectuate the best interest of the child.” See

Jenkins v. Jenkins, 16 S.W.3d 473, 483 (Tex.App.--El Paso 2000, no pet.); see also In re Z.B.P.,

109 S.W.3d 772, 779-80 (Tex.App.--Fort Worth 2003, no pet.), disapproved on other grounds by

Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (concluding that the record supported trial court's finding

that naming the father as the joint managing conservator with the exclusive right to determine

children’s residence, health care, and education was in the children’s best interests).

       In general, when the evidence demonstrates that the parties are experiencing difficulty in

effectively co-parenting or communicating, or difficulty in reaching shared decisions, a trial court

is justified in selecting one parent as an exclusive decision-maker to avoid conflict. See Coburn



                                                  17
v. Moreland, 433 S.W.3d 809, 828 (Tex.App.--Austin 2014, no pet.) (where parties had ongoing

conflicts regarding child’s educational needs and activities, court did not abuse its discretion in

selecting one parent as exclusive decision-maker to avoid conflicts); In re M.A.M., 346 S.W.3d at,

18-19 (where evidence demonstrated that parents had difficulty co-parenting, and where mother

had possession of the child for the vast majority of time, it was in child’s best interest to give

mother the exclusive right to make decisions regarding child’s welfare and educational issues).

       B. Analysis

               1. The Maintenance of S.G.’s Hair

       Father contends that the trial court abused its discretion in giving Mother the exclusive

right to make decisions regarding the maintenance of S.G.’s hair, contending that there was

insufficient evidence in the record to demonstrate that he was incapable of maintaining the child’s

hair. The critical issue, however, is not whether Father could successfully maintain S.G.’s hair

while she was in his possession, but whether the parties were in conflict over this issue. The trial

court heard evidence that the parties were in an ongoing conflict over how to maintain S.G.’s hair,

and Mother testified that she had repeatedly advised Father that S.G., who was African-American,

needed to use certain hair products to prevent breakages in her hair, but that Father had (1) refused

to use the products that she supplied, and (2) had taken S.G. to have her hair cut while she was in

his possession after she had asked him not to. Mother also testified at trial that the manner in

which S.G.’s hair was maintained was important for her self-esteem, and that the parties’

disagreement over the issue of S.G.’s hair was becoming a “problem” for all involved. And at

trial, Father expressed an unwillingness to cooperate with Mother on the issue and asserted that he

had the right to make unilateral decisions with regard to S.G.’s hair without consulting with Mother

when S.G. was in his possession.



                                                 18
       The evidence sufficiently supports the trial court’s decision to award Mother the exclusive

right to make decisions regarding S.G.’s hair to avoid future conflicts between the parties. We

therefore conclude that the trial court did not abuse its discretion in giving Mother this exclusive

right. See, e.g., In re Cooper, No. 07-98-0214-CV, 1999 WL 97951, at *6 (Tex.App.--Amarillo

Feb. 26, 1999, no pet.) (not designated for publication) (where evidence demonstrated that child’s

mother took unilateral actions with regard to children’s health and education, evidencing her

inability to participate with father in making decisions, trial court did not abuse its discretion in

giving father the exclusive right to make decisions regarding children’s health, education, and

welfare).

               2. S.G.’s Education

       Father next contends that the trial court abused its discretion by giving Mother the

exclusive right to make educational decisions, including the selection of S.G.’s school, and by

directing Mother to enroll S.G. in Bishop Dunne Catholic School. In particular, Father argues

that there was insufficient evidence to establish that it was in S.G.’s best interest to allow Mother

to enroll S.G. in Bishop Dunne, because the evidence established that S.G. was thriving at her

current school. We disagree. As set forth above, Mother presented evidence that Bishop Dunne

offered better educational opportunities than did S.G.’s current school or other similar private

schools in the area, had a more diverse population, and offered more sports and other

extracurricular opportunities of interest to S.G.

       Further, although the parties were previously in agreement with regard to S.G.’s elementary

school, the record demonstrates that the parties could not reach an agreement on where S.G. should

attend middle school, and that they were at a stalemate on this issue. We find this evidence to be

sufficient to support the trial court’s decision to modify the prior order to give Mother the exclusive



                                                    19
right to make educational decisions, and to select S.G.’s school going forward. Accordingly, the

trial court did not abuse its discretion in giving Mother this exclusive right. See In re J.E.P., 49

S.W.3d 380, 387 (Tex.App.--Fort Worth 2000, no pet.) (trial court did not abuse its discretion in

modifying prior order to grant mother the exclusive right to determine where the children would

attend school, whether public or private, where parties prior order had become unworkable).

                3. S.G.’s Extracurricular Activities

       Father next contends that the trial court abused its discretion by giving Mother the

exclusive right to make “final decisions,” after consulting with him, with regard to choosing S.G.’s

extracurricular activities. Father contends that the record is devoid of evidence to support a

finding that it was in S.G.’s best interest to give Mother that right. Father posits that at most, there

was evidence that S.G. had missed some of her extracurricular activities while she was in his

possession but contends that this did not constitute a valid reason for giving Mother final decision-

making authority in choosing S.G.’s activities.

       While we agree that the record does not contain any evidence that the parties disagreed on

this particular issue, the record demonstrated that the parties were experiencing difficulty in co-

parenting, in communicating with each other, and in making joint decisions with regard to various

other matters related to S.G.’s education and welfare. And the record further demonstrates that

S.G. was involved in several extracurricular activities that were obviously important to her.

Given the parents’ ongoing conflicts, and the importance of extracurricular activities to a child of

S.G.’s age, the trial court could have concluded that it was in S.G.’s best interest to allow Mother

to make the final decision regarding those activities, after duly consulting with Father, in order to

avoid future conflicts between the parties. We therefore conclude that the trial court did not abuse

its discretion by giving Mother this exclusive right. See generally In re R.H.H., No. 04-09-00325-



                                                  20
CV, 2010 WL 2842905, at *6 (Tex.App.--San Antonio July 21, 2010, no pet.) (mem. op., not

designated for publication) (where evidence demonstrated that Father was uncooperative with

Mother, and parties had difficulty communicating, trial court did not abuse its discretion in

modifying terms of possession by giving Mother the exclusive right to make decisions about

child’s education and extracurricular activities).

       Father’s Issue Three is overruled.

                                       VI. ATTORNEY’S FEES

       In his fourth issue, Father contends that the trial court abused its discretion in awarding

$2,500 in attorney’s fees to Mother.

       A. The Law on Attorney’s Fees

       The Texas Family Code gives a trial court the discretion to award reasonable attorney’s

fees and expenses in a case involving the parent-child relationship.        TEX.FAM.CODE ANN.

§ 106.002.   In general, the trial court’s determination of what constitutes a reasonable and

necessary attorney’s fee is subject to an abuse of discretion standard on appeal. Texas Mut. Ins.

Co. v. Sara Care Child Care Ctr., Inc., 324 S.W.3d 305, 319 (Tex.App.--El Paso 2010, pet.

denied); In re J.M.C., No. 2-09-292-CV, 2010 WL 2889671, at *7 (Tex.App.--Fort Worth July 22,

2010, no pet.) (mem. op., not designated for publication).

       However, the Texas Supreme Court recently clarified that a trial court must use the

“lodestar method” in determining a reasonable amount of attorney’s fees when fees are shifted

from one party to another. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d

469, 494 (Tex. 2019). The lodestar first requires the trial court to determine the reasonable hours

spent by counsel in the case and a reasonable hourly rate for such work. Id. The court then

multiplies the number of such hours by the applicable rate, the product of which is the base fee or



                                                 21
lodestar. Id. The court may then adjust the base lodestar up or down (apply a multiplier), if

relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case. Id.,

citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). The Court further noted that

general, conclusory testimony devoid of any real substance will not support a fee award, and that

instead, a claimant seeking an award of attorney’s fees must prove the attorney’s reasonable hours

worked and reasonable rate by presenting sufficient evidence to support the fee award sought. Id.

at 501-502. “Sufficient evidence includes, at a minimum, evidence of (1) particular services

performed, (2) who performed those services, (3) approximately when the services were

performed, (4) the reasonable amount of time required to perform the services, and (5) the

reasonable hourly rate for each person performing such services.” Id. at 502. Although billing

records are not required, they are “strongly encouraged to prove the reasonableness and necessity

of requested fees when those elements are contested.” Id.

       B. Analysis

       At trial, Mother’s attorney admitted a copy of the billing records from his law firm, without

objection, and testified under oath that it reflected the work that his firm had performed on

Mother’s behalf. The billing records detailed the particular services performed, who performed

the services, that person’s hourly rate, the dates of the services, and the time spent on the services.

       Father does not argue that Mother’s counsel’s billing record was not sufficiently detailed

to meet the requirements of Rohrmoos. Instead, Father focuses on two separate but related

arguments.     First, he contends that Mother’s attorney did not “personally attest to his

qualifications.” And second, he contends that the billing record contained the names of two other

individuals who billed their time in the case, but that Mother’s attorney failed to explain who those

individuals were and what qualifications they held. We find both arguments to be without merit.



                                                  22
         First, we note that in the trial court Father’s attorney expressly stipulated to the

qualifications of Mother’s attorney. Beyond that stipulation, Mother’s attorney testified that he

is board certified in family law and had over 38 years of experience as an attorney. Mother’s

attorney also testified that his billing rate of $400 an hour was a reasonable rate in Tarrant County

for someone with his experience who was board certified in family law. We therefore reject

Father’s argument that there was insufficient evidence of the attorney’s qualifications. See, e.g.,

Farish v. Farish, 921 S.W.2d 538, 546 (Tex.App.--Beaumont 1996, no writ) (finding stipulation

by appellant's counsel as to appellee’s counsel’s qualifications and reasonableness of hourly fee,

together with appellee’s submission of itemized statements, was sufficient to support award of

attorney fees).

         Second, although we agree with Father that Mother’s attorney did not attest to the

qualifications of the other two individuals who billed their time in Mother’s case, this deficiency

is not relevant under the particular facts of this case. The billing statement from Mother’s law

firm totaled $14,198, with $9,720 in attorney’s fees attributable to her attorney’s work alone, yet

the trial court only awarded Mother $2,500 in fees. Therefore, we may assume that the trial court

did not rely on the work performed by the other two individuals in calculating its award of

attorney’s fees.    We therefore conclude that the trial court’s award of attorney’s fees was

supported by sufficient evidence, and that the trial court did not abuse its discretion in making this

award.

         Father’s Issue Four is overruled.




                                                 23
                                       VII. CONCLUSION

       We affirm the trial court’s judgment, including those amounts awarded for an unsuccessful

appeal to an intermediate court of appeals.


                                              JEFF ALLEY, Chief Justice

January 9, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




                                                  24
