Affirmed and Opinion Filed November 9, 2016




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-15-01359-CV

                   IN THE INTEREST OF C.M.C., A CHILD, Appellant

                      On Appeal from the 470th Judicial District Court
                                   Collin County, Texas
                           Trial Court Cause No. 470-50545-06

                             MEMORANDUM OPINION
                           Before Justices Francis, Lang, and Stoddart
                                   Opinion by Justice Francis
       Father appeals the trial court’s order modifying the parent-child relationship by reducing

his possession of his daughter, C.M.C., and ordering him to pay child support. In two issues,

Father contends the trial court abused its discretion because there is legally and factually

insufficient evidence to support the modifications. In a third issue, he complains the trial court

“potentially erred” by failing to make findings of fact and conclusions of law. We affirm.

       In December 2005, C.M.C. was born to Mother and Father, who were never married. In

August 2006, when C.M.C. was eight months old, Mother and Father entered an agreed order

naming them joint managing conservators and setting out the terms and conditions of

conservatorship, possession, and child support. Among other things, the order provided that

once C.M.C. turned eighteen months old, Mother and Father would equally share possession of

the child, alternating weeks, and neither party would pay child support. Mother, who lived in
McKinney, was given the right to establish the child’s primary residence. Father lived in

Lewisville.

       In 2014, Mother filed a petition to modify the parent-child relationship, alleging material

and substantial changes in circumstances since the 2006 order. Mother requested that Father be

subject to a standard possession order, the parties have a mutual right of first refusal and

reasonable telephone access with the child, and Father pay child support. Mother asserted the

modifications were in C.M.C.’s best interest.       Father filed a general denial and requested

attorney’s fees.

       Three witnesses testified at trial: Mother, Father, and Father’s wife (Stepmother), whom

he married before C.M.C.’s birth. Mother testified the week-on/week-off possession schedule

“no longer works” for C.M.C., who at the time of trial was nine years old and in the third grade.

C.M.C. attended elementary school in McKinney. During the school year when Father had

possession, which is ten school days of each month, C.M.C. rode in a car one-and-a half-hours

each day, for almost seventy miles, traveling twice a day between Lewisville and McKinney.

Mother said this had been the arrangement since C.M.C. started kindergarten.

       On a typical school day, Mother picked up C.M.C. at an exchange point in Frisco at about

6:45 a.m. and drove her home to McKinney. Sometimes C.M.C. would eat breakfast in the car

and sometimes she would sleep the entire ride home. Once home, generally about 7:10 a.m.,

Mother fed C.M.C. breakfast if she had not eaten in the car, got her dressed, made her lunch and

snacks, and took her to school at about 7:50 a.m. On Mondays, Wednesdays, and Fridays,

Mother picked up C.M.C. from school at 3:30 p.m., took her to her gymnastics class, and then

dropped her off in Frisco at 6:30 p.m. On Tuesdays and Thursdays, Mother picked C.M.C. up at

school and took her home for two hours before driving her to Frisco for pickup at 6 p.m. Mother

testified she did all the exchanges on her end, and Father did the exchanges “on a very rare

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occasion” and never in the past year. Rather, Stepmother did all the morning exchanges and all

but a handful of the evening exchanges.

         As for the effects of the schedule on C.M.C., Mother testified the child had a “very hard

time” in the mornings and her “time on the road” was “too much.” She said C.M.C. had trouble

focusing at school, which progressed throughout the year. She also said C.M.C.’s teachers had

noted the problem on C.M.C.’s report card. During her weeks with Father, C.M.C. had a

“different attitude” and was “very sullen and very quiet.” On the weeks she was not traveling

between Lewisville and McKinney each morning, Mother said C.M.C. seemed “happier, more

outgoing, more talkative, and [had] a lot less anxiety.” By changing to a standard possession

order during the school year, where C.M.C. could be home during the week, Mother believed

C.M.C. “would have more structure and routine, and that would be best for her and her education

. . . to get more rest.”

        In addition to evidence regarding the effects of the week-on/week-off possession

schedule, Mother also presented evidence that she could not effectively co-parent with Father.

Evidence showed Father had made derogatory and insulting comments to Mother, both before

and after the filing of the petition for modification, including calling her a “POS,” “stupid,” “an

idiot,” “evil,” and without a “conscience”; suggested she had “poor character and bad ethical

qualities”; threatened to tell C.M.C. “what a whore” Mother was; said “dealing” with Mother had

been a “gd nightmare”; and characterized C.M.C.’s situation as “unfortunate” because Mother

did not take her birth control and thought she could “trap” him.

        Mother also testified Father denied her telephone access with C.M.C. multiple times

during his times of possession, and he refused to have conversations with Mother, instead

requiring her to speak to Stepmother. Mother testified she had “no concerns” with Stepmother

and generally communicated with her by text or email. Finally, evidence showed that when

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C.M.C. was at Father’s house, she called Stepmother “mom” and referred to Mother by her first

name, and neither Father nor Stepmother thought that was a problem.

            Father testified he believed the existing order was in C.M.C.’s best interest, saying it was

all C.M.C. had ever known and she seemed “more well-adjusted now than ever.” He said that

when he and Mother agreed to shared possession, he understood his daughter would grow older,

go to school, and participate in extracurricular activities. When asked about C.M.C. riding in a

car nearly seventy miles a day for an hour and a half, Father said it was “fine,” he did it as a

child, and, as an adult, he commutes two and a half hours a day. He added, “If a child can’t ride

in a car for an hour and half 10 days a month, then something’s wrong.” Father said they had

been doing the exchanges during the school year since 2012, and C.M.C.’s grades had not

dropped. He also said C.M.C. had “always had a focus issue,” which he attributed to Attention

Deficit Disorder “to some degree.” He talked to Mother about taking C.M.C. to the doctor, but

Mother opposed “any kind of medication.”             Father believed switching C.M.C. from equal

possession to standard possession would be detrimental to her mental health because she would

see his family “very little,” including her half-brothers, who were 21 and 17 years old at the time

of trial.

            As for co-parenting, Father said he “effectively co-parented” with Mother until she filed

the petition to modify and “started coming after me for money.” He believed the petition was

prompted by a dispute over C.M.C.’s gymnastics classes. C.M.C. had moved into a higher level

of gymnastics requiring four-hour practices twice a week during the summer. But, Father said,

his family’s plans did not allow for the “significant hours” because he had scheduled summer

plans around his son’s participation in select baseball. Up to that point, he said, “everything”

had worked “fine.” He acknowledged making disparaging comments about Mother, and in

particular calling her “evil,” “without a conscience,” and a “whore,” but said the remarks were

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made in a moment of anger, and that Mother had also made “quite a few disparaging remarks” to

him. He also acknowledged not allowing C.M.C. to talk to her Mother during his time of

possession because it “disrupted her week,” but he said he was now “willing to do that.”

       Stepmother described C.M.C.’s school day schedule during Father’s possession. C.M.C.

got up at 6:20 a.m. to leave at 6:30 to meet Mother, who took her home and dressed and fed her.

The drive to the exchange point was about twelve to fifteen minutes, depending on traffic, and

C.M.C. would sometimes sleep. On the drive home in the evenings, Stepmother said they would

talk or C.M.C. would do homework. On three days, they arrived home by 6:45 p.m.; on the

other two days, they arrived by 6:20 p.m. Once home, C.M.C. finished her homework, if she did

not complete it during the car ride, and then had dinner. Stepmother said she tried to get C.M.C.

“wound down” by 8:30 or 9 p.m. and bathed. Then, C.M.C. would read or play on her iPad

before going to sleep. She acknowledged that during Father’s weeks, Mother feeds C.M.C., gets

her dressed, makes her lunch, takes her to school, and takes her to gymnastics.

       Stepmother said C.M.C. had “no problems” getting up in the morning, but on some days,

“like any kid,” she was more tired than others. Stepmother, a teacher, agreed with Father that

C.M.C. needed to be evaluated for ADHD. She agreed C.M.C. is unfocused at times, and

reluctant to sit and do homework, but this is not at the “end of the day.” She did not believe “it

had anything to do with sitting in the car.” Stepmother said changing the possession order would

not “fix” C.M.C.’s focus issues, which are related to “how she’s concentrating and listening to

directions and what is being presented to her,” and not where she is living.

       Like Father, she believed the shared possession order was in C.M.C.’s best interest

because this was all the child had known; changing times would be “very detrimental” and

perhaps cause C.M.C.’s grades to “digress.” She testified C.M.C. recently attended after-school

tutoring to boost her confidence with the math and reading portions of the STARR examination.

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           Finally, Stepmother described her relationship with Mother as “[j]ust a drop-off and pick-

up kind of relationship.” She said they get along “okay” and generally communicate by texts.

C.M.C. called her “Mom or Mommy” when at their home for as long as she could remember.

She never insisted C.M.C. refer to her as mom, but believed she picked it up from her brothers.

           After hearing the evidence, the trial court granted Mother’s petition and specifically

noted that the parent’s inability to co-parent was a “huge problem,” making reference to the

“contempt and hostility” between the parties.                          The trial court asked Father if he “hated” Mother

more than he loved C.M.C., and suggested Father’s refusal to allow C.M.C. to talk to her Mother

while at his house was a “subtle” way of expressing his disdain for Mother. As relevant here, the

trial court changed the possession schedule to standard possession and ordered Father to pay

$1,710 a month in child support.1 The Father requested findings of fact and conclusions of law

and, when the trial court failed to make them, filed a notice of past-due findings. None were

made. Father also filed a motion for new trial, which was denied. Father appealed.

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

2006 order providing for alternating weeks of possession to a standard possession order because

there was legally and factually insufficient evidence to do so. He contends the evidence does not

show a material and substantial change in circumstances nor does it show the change was in

C.M.C.’s best interest.

           Regarding issues of conservatorship and possession and access, the primary consideration

is always the best interest of the child. See TEX. FAM. CODE ANN. § 153.002 (West 2014); Lenz

v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). We review a trial court’s decision to modify an order




     1
       The trial court also gave each party a right of first refusal for any period that a possessory parent is absent for more than six hours and
enjoined each party from restricting electronic or telephone communications between C.M.C. and the other parent. Father does not appeal these
modifications.



                                                                      –6–
regarding conservatorship or the terms of possession and access to a child under an abuse of

discretion standard. In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied).

       A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference

to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.

1985). Under this standard, legal and factual sufficiency are not independent grounds of error

but are relevant factors in assessing whether the trial court abused its discretion. In re C.H.C.,

392 S.W.3d 347, 352 (Tex. App.—Dallas 2013, no pet.) (op. on motion for reh’g). The trial

court does not abuse its discretion if some evidence of a substantial and probative character

supports its decision. Agraz v. Carnley, 143 S.W.3d 547, 554 (Tex. App.—Dallas 2004, no pet.).

       In making our review, we recognize the trial court is in the best position to observe and

assess the witnesses’ demeanor and credibility, and to sense the “forces, powers, and influences”

that may not be apparent from merely reading the record on appeal. In re A.L.E., 279 S.W.3d

424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Consequently, we defer to the trial

court’s resolution of underlying facts and to credibility determinations that may have affected its

determination, and we will not substitute our judgment for the trial court’s. Id.

       A trial court may modify an order regarding possession or access to a child if it finds

modification would be in the best interest of the child and, as it applies to this case, that the

circumstances of the child, a conservator, or other party affected by the order have materially and

substantially changed since the date the order was rendered.            TEX. FAM. CODE ANN. §

156.101(a)(1)(A) (West 2014).       In deciding whether a material and substantial change of

circumstances has occurred, a trial court is not confined to rigid or definite guidelines. In re

A.L.E., 279 S.W.3d at 428. Instead, the court’s determination is fact-specific and must be made

according to the circumstances as they arise. Id. The law does not prescribe any particular




                                                –7–
method for showing changed circumstances, which may be established by circumstantial

evidence. Id. at 429.

       Father contends Mother failed to show a material and substantial change in circumstance,

arguing nothing “much significant” had changed since the 2006 order and Mother had failed to

show what had changed since the original order. He asserts that both parties live in the same

residences as they did when the 2006 order was signed, C.M.C. had attended the same school

since 2012, and they had been doing “basically the same” exchanges since that time.

       The fact the parties had the same system in place since C.M.C. started kindergarten is of

no moment; we consider the change in circumstance at the time of the original order when

C.M.C. was eight months old. The evidence showed that while the parties agreed to shared

possession beginning when C.M.C. was eighteen months old, circumstances had materially and

substantially changed since she was an infant. Specifically, C.M.C. was in third grade and,

according to her Mother and teachers, was having difficulty focusing at school.           Mother

attributed the lack of focus to a travel schedule that put C.M.C. traveling between Lewisville and

McKinney, twice a day, beginning at 6:30 a.m., two weeks each month or half of all school days,

for one and a half hours a day. On these days, C.M.C. eats, sleeps, and does homework in a car.

According to Mother, C.M.C. was “very sullen” and “very quiet” during those weeks and had a

lot less anxiety on weeks she did not have to travel.   Although neither Father nor Stepmother

believed C.M.C.’s focus issues were related to the possession schedule, the trial court judged the

credibility of the witnesses and the evidence presented. And while her grades may not have

dropped, evidence showed she was in after-school tutoring to work on her math and reading

skills for the state-mandated test.

        To the extent Father argues the only change in circumstance was C.M.C.’s age, we

disagree. As we just explained, in addition to her age, C.M.C. was in school and was having

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difficulty focusing. Regardless, a child growing older can, under certain circumstances, warrant

a modification in a possession schedule, particularly when, as here, the child was an infant or

toddler at the time of the original order and had aged several years at the time of modification.

See In re C.H.C., 392 S.W.3d at 351. Moreover, the “trio of decisions” relied upon by Father to

show an abuse of discretion are unavailing. See In re C.H.C., 392 S.W.3d at 351, In re C.R.G.,

No. 05-10-01472-CV, 2012 WL 3133785 (Tex. App.—Dallas Aug. 2, 2012, no pet.) (mem. op.),

In re K.T.W., No. 05-08-01416-CV, 2010 WL 716417 (Tex. App.—Dallas Mar. 3, 2010, no pet.)

(mem. op.).

       In C.H.C., a father sought to modify an order to obtain more time in the summer with his

son and testified it would allow them to go camping, fishing, and enjoy the outdoor activities the

two did together. 392 S.W.3d at 351. This Court concluded his testimony the trial court abused

its discretion in granting the modification because the evidence did not establish any change in

circumstances since the original order. Id. at 351–52. As we explained, C.H.C. was not an

infant at the time of original order; rather, he was five years old, and he was ten years old at the

time of modification. Id. Further, the father made no argument that C.H.C. could do more lake

or camping activities than in 2004 when he was younger. Id.

       In K.T.W., the father saw his child on the weekends under a standard possession order.

The father lived in Houston and the mother lived in Dallas, and the two met in Buffalo for the

exchange of the child.     2010 WL 716417 at *2.          Mother sought to modify the custody

arrangement and testified K.T.W. was now in school and participating in sports and

extracurricular activities, and the weekend travel was interfering with his testing in Taekwondo.

She also claimed the weekend travel was “taking a toll” on her son because he was on the road

two and three times a month. Id.




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        After hearing the evidence, the trial court reduced K.T.W.’s visitation with the father to

only one weekend per month because of the “distance and travel time” from the parents’

residences. Id. We reversed the trial court’s order, explaining the evidence showed the distance

between the parents’ homes was slightly less since the original order and any alleged hardships

in scheduling K.T.W.’s Taekwondo classes had been resolved. Id. at *3. Further, there was no

other evidence regarding extracurricular, sports, or school-related conflicts or difficulties.

Rather, the mother acknowledged the only change in K.T.W.’s circumstance was he had grown

older. Id. We concluded there was no evidence to support a finding that the modification was in

the child’s best interest. Id. at *4.

        In C.R.G., the trial court modified an existing standard possession order to allow the

sixteen-year-old child to refuse to permit her father to exercise his periods of possession. 2012

WL 3133785, at *1. The order had been in place since C.R.G. was an infant, and C.R.G. told the

trial judge the standard possession order interfered with her many social and school activities.

Id. at *2. We concluded the trial court abused its discretion, saying an increase in age alone is

not enough “unless changed needs are shown.” We explained that trial court made no findings

as to C.R.G.’s needs and only found she desired the right to deny her father his times of

possession because it interfered with her school and social activities. Id. at *4.

        These cases are distinguishable on their facts. Mother is not complaining the existing

order is interfering with C.M.C.’s social or extracurricular activities or their time together. She

presented evidence that the school-day travel schedule is impacting C.M.C.’s ability to focus at

school. Although Father testified he believed Mother was motivated by the gymnastics dispute,

the evidence showed that issue was resolved.

        Moreover, in addition to evidence regarding the effects of the travel schedule on C.M.C.,

other evidence showed Mother and Father could not co-parent amicably. Mother testified Father

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no longer communicated with her regarding C.M.C. and, instead, required her to communicate

with Stepmother.     Additionally, evidence showed Father had engaged in vulgar, profane,

derogatory and insulting communications with Mother, which are inconsistent with good co-

parenting. See In re A.E.A., 406 S.W.3d 404, 418 (Tex. App.—Fort Worth 2013, no pet.). That

some of these communications occurred after Mother filed the petition to modify is irrelevant to

our analysis. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, pet. denied) (stating

that to demonstrate material and substantial change in circumstances, evidence must show what

conditions existed at time of entry of prior order compared to circumstances existing at time of

hearing on motion to modify).

       Finally, Father relies heavily on public policy of this State to argue the trial court should

not have limited him to standard possession. We agree the public policy of this State is to assure

children have “frequent and continuing contact with parents who have shown the ability to act in

the best interest of the child” and to “encourage parents to share in the rights and duties of raising

their child” after parents have ended their relationship. See TEX. FAM. CODE ANN. § 153.001(a).

However, courts are permitted to place limitations on a parent’s possession of a child if such

limitations are necessary for the child’s best interest.      Having reviewed the evidence, we

conclude the trial court did not abuse its discretion in finding a material and substantial change in

circumstances had occurred warranting a change in Father’s possession schedule and that the

modification was in C.M.C.’s best interest. We overrule the first issue.

       In his second issue, Father contends Mother failed to prove a material and substantial

change of circumstances to justify imposing child support. As with possession, the family code

authorizes a trial court to modify a child support order if the circumstances of the child or a

person affected by the order have materially and substantially changed since the date the order

was rendered. TEX. FAM. CODE ANN. § 156.401(a)(1)(A) (West Supp. 2016). The material and

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substantial change is not necessarily a change in the financial condition of one of the parties; it

can involve a change in custody of the child. In re A.M.W., 313 S.W.3d 887, 891 (Tex. App.—

Dallas 2010, no pet.).    The person seeking the modification has the burden of establishing a

material and substantial change. In re C.H.C., 392 S.W.3d at 349. Absent a clear abuse of

discretion, the trial court’s order will not be disturbed on appeal. Id.

       At the time of trial, Father had a net monthly income of $10,000, and Mother earned $22

an hour working thirty hours a week. Under the 2006 order, Father was no longer required to

pay child support once he and Mother began sharing equal possession of C.M.C. when she

turned eighteen months old.        But the trial court modified the possession schedule from

alternating weeks to standard possession, meaning that C.M.C. will no longer be spending every

other week at her Father’s house. Under these circumstances, we cannot conclude the trial court

abused its discretion by ordering Father to pay child support. See Labowitz v. Labowitz, 542

S.W.2d 922, 925 (Tex. Civ. App.—Dallas 1976, no writ) (concluding father’s appointment as

managing conservator of children constituted material and substantial change requiring

reallocation of financial obligations; In re Z.B.P., 109 S.W.3d 772, 781–82 (Tex. App.—Fort

Worth 2003 (concluding material change in circumstance shown when children no longer lived

with Mother during week so Mother not furnishing same degree of services, and Father was

furnishing more services to children than at time of divorce), disapproved on other grounds by

Iliff v. Iliff, 339 S.W.3d 74, 84 n.8 (Tex. 2011). We overrule the second issue.

       In his third issue, Father asserts “potential error” in the trial court’s failure to make

requested findings of fact and conclusions of law. Father asks that we abate the appeal and

remand for entry of such findings but only if this Court “believes findings are necessary to

evaluate” the appeal.




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       A trial court’s failure to respond to a timely request for findings of fact and conclusions

of law is error and is presumed harmful unless the record before the appellate court affirmatively

shows the complaining party has suffered no harm. Cherne Indus., Inc. v. Magallanes, 763

S.W.2d 768, 772 (Tex. 1989). The general rule is an appellant has been harmed if, under the

circumstances of the case, he has to guess at the reason the trial court ruled against him.   Larry

F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied).

       Father has thoroughly briefed his issues on appeal and does not argue that he has been

left to “guess” at the reason the trial court ruled against him. Moreover, the lack of findings has

not impacted our ability to evaluate his issues. We overrule the third issue.

       We affirm the trial court’s order modifying the parent-child relationship.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE

151359F.P05




                                               –13–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE INTEREST OF C.M.C., A CHILD                    On Appeal from the 470th Judicial District
                                                      Court, Collin County, Texas
No. 05-15-01359-CV                                    Trial Court Cause No. 470-50545-06.
                                                      Opinion delivered by Justice Francis;
                                                      Justices Lang and Stoddart participating.

      In accordance with this Court’s opinion of this date, the trial court’s order in suit to
modify the parent-child relationship is AFFIRMED.

       It is ORDERED that appellee Sherry Hulsey recover her costs of this appeal from
appellant Mark Lee Currington.


Judgment entered November 9, 2016.




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