                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                              _________________

                               NO. 09-18-00131-CV
                              _________________

                       IN THE INTEREST OF J.D.H. JR.

________________________________________________________________________

                    On Appeal from the 279th District Court
                           Jefferson County, Texas
                         Trial Cause No. F-216,434-B
________________________________________________________________________

                          MEMORANDUM OPINION

      Appellant, J.D.H. (Father),1 filed a petition to modify to change the

conservator with the right to designate the primary residence of his child, J.D.H. Jr.

Father sought a modification of a prior order in which the child’s mother, A.R.P.

(Mother), had been named as the conservator with the exclusive right to designate

the child’s primary residence. After a bench trial, the trial court denied the relief



      1
         See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2018) (authorizing use
of fictitious names or initials to identify parties in family law cases).
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sought in the petition to modify. The trial court found that neither the petition,

attachments, or arguments provided adequate facts to support an allegation that

there had been a material and substantial change of circumstances since the rendition

of the order to be modified, an allegation that the child’s present environment may

endanger his physical health or substantially impair his emotional development, an

allegation that the person with the exclusive right to designate the child’s primary

residence voluntarily relinquished the primary care and possession of the child to

another person for at least six months, or an allegation that the modification was in

the best interest of the child. In his appeal, Father filed a pro se brief in which he

fails to specify his issues on appeal and he fails to cite to the record or provide

adequate briefing. See Tex. R. App. P. 38.1.

      Liberally construing his appellate brief, Father criticizes Mother’s parenting

of the child, and Father complains that the trial court denied his petition to modify

custody after the child had resided with Father every other week by agreement with

Mother, and Father suggests Mother stopped the voluntary arrangement because

Father started a family with another woman. Because we conclude that the trial court

had sufficient evidence from which it could reject Harris’s alleged grounds for

modifying custody, we affirm the trial court’s denial of Harris’s modification

petition.

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      A trial court may modify a prior conservatorship order if modification would

be in the best interest of the child and the circumstances of the child, a conservator,

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

the rendition of the prior order. Tex. Fam. Code Ann. § 156.101(a)(1)(A) (West

2014). And a trial court may modify the order if the conservator with the right to

designate the child’s primary residence has voluntarily relinquished the primary care

and possession of the child to another person for at least six months. Id.

§ 156.101(a)(3). In a modification proceeding, the trial court bases its findings on a

preponderance of the evidence. Id. § 105.005. “The judgment of the trial court will

be reversed only when it appears from the record as a whole that the court has abused

its discretion.” Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

      To prove that a material change in circumstances has occurred, the petitioner

must show the conditions that existed at the time of the entry of the prior order and

the material change that occurred in the intervening period. Filla v. Filla, No. 03-

14-00502-CV, 2016 WL 4177236, at *4 (Tex. App.—Austin Aug. 5, 2016, pet.

denied) (mem. op.).

      The non-exhaustive list of factors considered by the trial court in determining

the best interest of the child in a modification proceeding include (1) the desires of

the child; (2) the emotional and physical needs of the child now and in the future;

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

parental abilities of the individual who seeks custody; (5) the programs available to

assist the individual to promote the best interest of the child; (6) the plans for the

child by the individual who seeks custody; (7) the stability of the home or proposed

placement; (8) the acts or omissions of the parent that may indicate that the existing

parent-child relationship is not a proper one; (9) any excuse for the acts or omissions

of the parent; and (10) the child’s need for stability and the need to prevent constant

litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000);

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

      The trial court signed the original parentage order in September 2012. The

original order does not appear in the appellate record, but in the modification hearing

Mother and Father agreed that Mother had primary custodial care of the child under

the original order, and Father alleged in his Petition to Modify that in the original

order Mother had the exclusive right to designate the child’s residence. During the

modification hearing, Father stated that before September 2012 he had physical

possession of the child every other week. According to Father, after September 2012

there were occasions when Mother asked Father to keep the child. The parties

returned to court in 2014 for a child support enforcement and modification

proceeding. The 2014 order was admitted into evidence in the modification hearing.

                                          4
Although Father testified that the 2014 modification proceeding concluded with no

change in child support because the parents were essentially splitting possession of

the child equally, the 2014 order refers only to the parties’ support obligations and

does not address the possession of the child. Father testified that in 2016 he

possessed the child for as long as three months while Mother was working out-of-

state. Additionally, he claimed the child lived with him for six consecutive months

ending late in 2015.

      Father testified that around 2014 Mother enrolled the child at Fehl-Price

elementary school where the child attended pre-kindergarten, kindergarten, and first

grade. Father testified that he received a letter from the school that suggested

children enrolled in the school could transfer elsewhere in the district because the

“school was failing[.]” Father testified he wanted to transfer the child to Blanchette

Elementary, near Father’s residence. Father also testified that he plans to remain in

the same home where he has resided for three years.

      Father stated that he works on Tuesday, Wednesday, and Thursday in his

current employment. According to Father, since 2016, Mother has kept the child on

days when he is working, and he has had the child the remaining days. Father alleged

that Mother stopped the arrangement in October 2017. And, Father filed the

modification suit in December 2017.

                                          5
      According to Mother, she and Father equally shared possession of their child

from 2012 until October 2017. She disputed Father’s claim that she had the child

only on Tuesday and Wednesday nights and told the court that she had possession

of the child Monday through Friday and Father had the child every weekend.

According to Mother, she stopped the arrangement because she felt the child did not

receive proper discipline. Mother denied that she left her son with Father for three

or six months.

      Both parents testified at the trial, and the trial court had the right to assess the

credibility of both witnesses and give the testimony the weight the trial court deemed

appropriate. In re J.S., No. 05-16-00138-CV, 2017 WL 894541, at *6 (Tex. App.—

Dallas Mar. 6, 2017, no pet.) (mem. op.). Mother denied that she left her son with

Father for at least six months. Mother admitted that Father exercised greater custody

than the periods required by the existing order, but Father did not show that allowing

him to have additional access to the child constituted a material and substantial

change of circumstances since the rendition of the prior order. Furthermore, although

Father argued that granting him the right to designate the child’s primary residence

would enable Father to enroll the child in a different school where the child’s half-

siblings attend school, the trial court could have concluded that Father failed to

present sufficient evidence that the child would receive a better education if he

                                           6
changed schools and that Father failed to present sufficient evidence that the

modification would be in the best interest of the child.

      Under this record, we cannot say that the trial court abused its discretion by

denying Father’s petition to modify the conservatorship order to give Father the

exclusive right to determine the child’s primary residence. We affirm the trial court’s

order denying relief on the petition to modify the order affecting parent-child

relationship.

      AFFIRMED.


                                              ________________________________
                                                    LEANNE JOHNSON
                                                            Justice


Submitted on December 11, 2018
Opinion Delivered January 17, 2019

Before Kreger, Horton, and Johnson, JJ.




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