Opinion issued January 28, 2020




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-18-00386-CV
                          ———————————
                   GARY DONELSON GUION, Appellant
                                      V.
                      LAURA PAIGE GUION, Appellee


                   On Appeal from the 257th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-57586


                                OPINION

      In this suit affecting the parent-child relationship (SAPCR), father, Gary

Donelson Guion, petitioned for modification of the sole managing conservatorship

of mother, Laura Paige Guion, to impose a geographic restriction on her right to

designate their child’s primary residence, as well as additional modifications
affecting possession and access to the child and transfer of the child’s passport.

Laura filed a motion to dismiss Gary’s petition, and the trial court granted her

motion. In this appeal of the trial court’s dismissal order, Gary contends that the trial

court erred in (1) dismissing his claim for modification of conservatorship based on

an incorrect legal conclusion, (2) dismissing his additional claims based solely on

the argument of counsel, and (3) ordering him to pay Laura’s attorney’s fees.

      We reverse the trial court’s order dismissing Gary’s modification suit and

awarding Laura attorney’s fees, and we remand the case to the trial court.

                                      Background

      Laura and Gary were divorced in Dallas County, Texas, in 2016. The issue of

conservatorship of the parties’ four-year-old child, H.D.G., was tried to a jury. On

July 22, 2016, the jury returned its verdict that Laura should be named sole managing

conservator, and the trial court rendered a final decree of divorce pursuant to the

jury’s verdict on that same day.1 In addition to naming Laura sole managing

conservator and Gary possessory conservator of H.D.G., the decree set forth Laura’s

rights as sole managing conservator, including the exclusive right to designate

H.D.G.’s primary residence without geographic restriction.




1
      Although the trial court did not sign the parties’ final decree of divorce until October
      20, 2016, the final decree stated that it was rendered on July 22, 2016.

                                             2
      On July 24, 2017, Gary filed a petition to modify the parent-child relationship,

alleging that circumstances had materially and substantially changed since the

rendition of the parties’ divorce decree. Gary asked the Dallas County trial court to

modify the decree to restrict Laura’s right to designate H.D.G.’s primary residence

to Harris, Dallas, and Travis counties and the counties contiguous thereto. Gary also

requested that the trial court modify the decree’s terms of possession to state that at

the end of his periods of possession, he would surrender H.D.G. “at a location

equidistant between” the parties’ residences. He also requested that the trial court

add provisions for long distance access and visitation, international travel (and notice

of same), and possession of H.D.G.’s passport.

      After Laura filed her answer, the suit was transferred to Harris County, where

Laura filed the motion to dismiss Gary’s modification petition and to award

sanctions that is the subject of this appeal. In her motion to dismiss, Laura alleged

that Gary “failed to show any material and substantial change of circumstances” and

that the modifications he sought “were all contemplated in the decree.” Laura also

requested attorney’s fees as sanctions under Texas Family Code section 156.005 and

Texas Rule of Civil Procedure 13 “for frivolous filing of suit for modification,”

alleging that Gary’s petition had “no basis in law or fact,” was “not warranted by a

good-faith argument for the extension, modification, or reversal of existing law,”




                                           3
and was “intended to harass” her. The record does not indicate that Gary filed a

response to Laura’s motion to dismiss.

      On February 22, 2018, the Harris County trial court held a hearing on Laura’s

motion to dismiss. At the hearing, Gary’s counsel argued that material and

substantial changes had occurred, that he “would move to show that [Laura] has

since remarried, that at the time of the rendition of the underlying order, she lived in

Boulder, Colorado,” and that “[s]he has since moved, relocated here to Houston.”

He also stated that Gary would testify that he lived in Dallas at the time the divorce

decree was rendered and that he now lives in Austin. Laura’s counsel argued that

because the decree did not include a geographic restriction on Laura’s right to

designate H.D.G.’s primary residence, her recent move to Houston was

contemplated at the time of the decree and, therefore, was not a change in

circumstances.

      The trial court declined to hear testimony, stating, “I think the issue before the

court is more fundamental and not fact based, so I do not need to hear any fact

witnesses, other than [Laura’s counsel], if you want to put on evidence on your

requested attorney fees.” Laura’s counsel then testified regarding his fees.

      At the conclusion of the hearing, the trial court orally granted Laura’s motion

to dismiss Gary’s modification suit and assessed $5,000.00 in attorney’s fees against

Gary. The trial court explained that it was ruling “on the basis of fact” because


                                           4
“fundamentally in the State of Texas, if you’re named a Sole Managing Conservator,

I cannot impose a domicile restriction.”

      Several days after the hearing, Gary filed a motion to reconsider, bringing the

trial court’s attention to specific provisions of the Family Code that he argued

established that “a sole managing conservator can be restricted geographically.” The

record does not indicate that the trial court ruled on this motion.

      On March 12, 2018, the trial court signed an order granting Laura’s motion to

dismiss and ordering Gary to pay $5,000.00 in attorney’s fees to Laura’s counsel.

Two days later, Gary filed a motion to amend the judgment, and after several weeks

passed with no ruling on that motion, he filed a first amended motion to modify,

correct, or reform the judgment pursuant to Texas Rule of Civil Procedure 329b. See

TEX. R. CIV. P. 329b (governing motions to modify, correct, or reform judgments).

Both motions pointed out that the trial court’s dismissal order did not include

findings to support an award of sanctions under Rule 13 and requested that the trial

court amend the order to reflect the basis of the attorney’s fees award.

      On May 30, 2018,2 the trial court signed an order granting Laura’s motion to

dismiss, stating that, “It is therefore the position of this Honorable Court that the

Court cannot impose a domicile restriction on a Sole Managing Conservator in a


2
      The trial court signed this order after holding a hearing on Gary’s motion to sign a
      corrected order to remove the word “Agreed” that had been handwritten on yet
      another dismissal order the trial court had signed on April 12, 2018.

                                           5
subsequent modification action,” and ordering, without making any supporting

findings, that Gary pay $5,000.00 in attorney’s fees to Laura’s counsel. Gary appeals

this order.

                                    Nature of Motion

      The Texas Rules of Civil Procedure do not authorize motions to dismiss suits

affecting the parent-child relationship, such as Gary’s modification suit, other than

in limited circumstances, such as for lack of jurisdiction, want of prosecution, and,

in certain circumstances inapplicable here, when a party fails to include the requisite

allegations and affidavit for modification suits filed pursuant to Family Code section

156.102.3 See In re Sisk, No. 14-13-00785-CV, 2014 WL 5492804, at *5 (Tex.


3
      Section 156.102, which has certain procedural requirements, applies to suits to
      modify the exclusive right to designate a child’s primary residence that are filed
      within one year of the order to be modified. See TEX. FAM. CODE ANN. § 156.102.
      Although Laura argues on appeal that Gary failed to meet the specific pleading and
      proof requirements for such a modification, she failed to make that argument in her
      motion to dismiss. See TEX. R. APP. P. 33.1(a)(1) (stating that to preserve complaint
      for appellate review, complaining party must present complaint to trial court by
      timely request, objection, or motion). In any event, we note that Gary filed his
      petition on July 24, 2017, just outside the one-year window, which began to run not,
      as Laura argues, on October 20, 2016—the date the trial court signed the parties’
      divorce decree—but on the date the decree states that it was rendered—July 22,
      2016. See TEX. FAM. CODE ANN. § 156.102 (stating that section 156.102 applies to
      suits “filed not later than one year after the earlier of the date of the rendition of the
      order or the date of the signing of a mediated or collaborative law settlement
      agreement on which the order is based”); see also In re K.R.Z., No. 04-14-00876-
      CV, 2015 WL 4478123, at *2 (Tex. App.—San Antonio July 22, 2015, no pet.)
      (mem. op.) (recognizing that one-year period in section 156.102(a) begins on date
      of rendition of order to be modified, not on date order was signed); In re C.H., No.
      02-13-00312-CV, 2014 WL 3891636, at *3 (Tex. App.—Fort Worth Aug. 7, 2014,

                                              6
App.—Houston [14th Dist.] Oct. 30, 2014, pet. denied) (mem. op.) (holding that

parents’ motion to dismiss disabled adult child’s petition for child support was “not

recognized under the Texas Rules of Civil Procedure or the Texas Family Code,”

and therefore was not proper vehicle for disposing of petition); see also TEX. R. CIV.

P. 165a(1) (authorizing dismissal for want of prosecution); TEX. FAM. CODE ANN. §

155.102 (requiring dismissal if court determines that another court has “continuing,

exclusive jurisdiction” of child that is subject of suit); id. § 156.102(c) (requiring

denial of relief conducting hearing if party fails to meet specific pleading and proof

requirements in suits to modify exclusive right to determine child’s primary

residence brought within one year of rendition of order to be modified).

      Moreover, Rule 91a, which provides for motions to dismiss baseless causes

of action on the pleadings and without evidence, specifically excepts cases brought

under the Family Code. See TEX. R. CIV. P. 91a.1 (describing procedure for seeking

dismissal of baseless cause of action and excluding cases brought under Family

Code); 91a.6 (stating that, in cases where Rule 91a applies, court “may not consider

evidence in ruling on the motion and must decide the motion based solely on the

pleading of the cause of action”). Accordingly, because Laura did not provide, nor

can we find, any authority for dismissal of Gary’s claims based on the argument in



      no pet.) (mem. op.) (same). Section 156.102, therefore, does not apply to this
      modification proceeding.

                                          7
her motion to dismiss that Gary failed to show a material and substantial change in

circumstances, we conclude that the motion to dismiss was an improper vehicle for

dismissal of Gary’s petition on that basis. See In re Sisk, 2014 WL 5492804, at *4–

5 (holding that parents’ motion to dismiss child support petition was not proper

because “[t]he Texas Rules of Civil Procedure do not provide for a defendant’s

motion to dismiss in cases brought under the Texas Family Code, except for want of

prosecution or lack of jurisdiction”); In re D.K.M., 242 S.W.3d 863, 865–66 (Tex.

App.—Austin 2007, no pet.) (reversing trial court’s order granting motion to dismiss

in paternity suit because motion to dismiss was not recognized by rules of civil

procedure).

      We recognize, however, that the nature of a motion is determined by its

substance rather than its title, and that courts, accordingly, sometimes treat motions

to dismiss as summary-judgment motions. See TEX. R. CIV. P. 71 (“When a party

has mistakenly designated any plea or pleading, the court, if justice so requires, shall

treat the plea or pleading as if it had been properly designated.”); Cuba v. Williams,

No. 01-18-00122-CV, 2019 WL 1716061, at *2–3 (Tex. App.—Houston [1st Dist.]

Apr. 18, 2019, no pet.) (mem. op.) (treating motion to show cause why case should

not be dismissed for failure to timely serve defendant as summary-judgment motion

where movant filed motion twenty-one days prior to hearing, cited to summary-

judgment cases in support of motion, and requested that trial court take judicial


                                           8
notice of its own record as evidence, and nonmovant filed response more than seven

days prior to hearing and attached affidavit and other evidence); Briggs v. Toyota

Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.) (treating

motion to dismiss that asserted affirmative defense as summary-judgment motion

where record showed summary-judgment procedure was used including filing

motion twenty-one days prior to hearing and parties presenting evidence to support

positions).

      We decline to treat Laura’s motion to dismiss Gary’s modification petition as

a motion for summary judgment, however, as the record does not indicate that the

parties complied with the summary-judgment procedures set forth in the Texas Rules

of Civil Procedure. See TEX. R. CIV. P. 166a (setting forth summary judgment

procedures); see also In re D.K.M., 242 S.W.3d at 865–66 (refusing to construe

motion to dismiss based on limitations as summary-judgment motion, stating that

summary-judgment rule contains procedural safeguards to ensure that merits are not

determined before nonmovant has had adequate time for discovery and opportunity

to respond). Furthermore, the parties themselves did not treat the proceedings as

summary-judgment proceedings—Laura did not attach affidavits or evidence to her

motion, Gary did not file a response, and at the hearing on the motion to dismiss,

counsel for both parties stated that their clients were present and prepared to testify.

See In re Sisk, 2014 WL 5492804, at *4–5 (holding, on review of motion to dismiss


                                           9
petition for child support, that because appellate court could not “determine the

procedural basis [the movant] invoked to seek dismissal,” it would not treat motion

as summary-judgment motion because movants did not file affidavits or evidence

with motion and trial court issued findings of fact and conclusions of law).

      We can and do, however, construe Laura’s motion as, in part, a motion to

dismiss a claim with no basis in law or fact under Texas Rule of Civil Procedure 13,

without taking into account the prohibition against moving to dismiss claims in

family court cases set out in Rule 91a.1. See TEX. R. CIV. P. 91a.1 (stating that

“[e]xcept in a case brought under the Family Code . . . a party may move to dismiss

a cause of action on the grounds that it has no basis in law or fact,” and “[a] cause

of action has no basis in law if the allegations, taken as true, together with inferences

reasonably drawn from them, do not entitle the claimant to the relief sought”). Rule

13 provides for sanctions against a party or attorney who signs “a pleading, motion,

or other paper” that is “groundless and brought in bad faith or groundless and

brought for the purpose of harassment.” TEX. R. CIV. P. 13. And Rule 13 defines

“groundless” not only as having “no basis in law or fact” but also as “not warranted

by good faith argument for the extension, modification, or reversal of existing law.”

Id. Apparently, the trial court determined that Gary’s suit for modification was

groundless and brought in bad faith under Rule 13, although, in this regard too, it

failed to hold the required evidentiary hearing. See id. (“If a pleading, motion or


                                           10
other paper is signed in violation of this rule, the court, upon motion or upon its own

initiative, after notice and hearing, shall impose an appropriate sanction . . . .”); Bisby

v. Dow Chem. Co., 931 S.W.2d 18, 21(Tex. App.—Houston [1st Dist.] 1996, no pet.)

(“Before sanctions may be imposed, the trial court must hold an evidentiary hearing

to make necessary factual determinations about the motives and credibility of the

person signing the alleged groundless petition.”).

      We turn, therefore, to the trial court’s ruling that “the Court cannot impose a

domicile restriction on a Sole Managing Conservator in a subsequent modification

action,” its dismissal of Gary’s petition to modify on that basis, and its order that

Gary “pay attorney’s fees in the amount of five thousand dollars ($5,000) to

[Laura’s] counsel of record.”

                 Modification of Sole Managing Conservatorship

      In his first issue, Gary argues that the trial court erred in concluding that Texas

law does not authorize the imposition of a geographic restriction on a child’s

residence where a parent has been named sole managing conservator. We review the

trial court’s conclusions of law de novo. Smith v. Karanja, 546 S.W.3d 734, 738

(Tex. App.—Houston [1st Dist.] 2018, no pet.).

      Laura did not argue to the trial court—either in her motion to dismiss or at the

hearing on the motion—that Texas law does not authorize the modification of a sole

managing conservatorship to restrict the right to designate a child’s primary


                                            11
residence as Gary requested in his petition. And neither the dismissal order nor the

hearing transcript offers insight into or authority for the trial court’s reasoning in

drawing this legal conclusion. We therefore consult the applicable Family Code

provisions and caselaw construing them to determine whether the trial court’s legal

conclusion was correct.

      In a suit affecting the parent-child relationship, the trial court may modify an

order that provides for the conservatorship of a child. TEX. FAM. CODE ANN.

§ 156.001 (“A court with continuing, exclusive jurisdiction may modify an order

that provides for the conservatorship, support, or possession of and access to a

child.”). Family Code section 156.101 sets forth the grounds for such modification.

Id. § 156.101. Pertinent here, a trial court may modify an order that appoints a child’s

conservator or “provides the terms and conditions of conservatorship” 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 order was rendered. See id. § 156.101(a)(1). Thus,

under the plain terms of section 156.101, Gary was entitled to a modification of the

terms of Laura’s conservatorship if he could establish that a material and substantial

change in circumstances had occurred since rendition of the divorce decree just over

a year earlier, and that the modification he sought was in H.D.G.’s best interest. See

id.


                                          12
      Notably, section 156.101 does not expressly limit the trial court’s power to

modify a conservatorship. And we have found nothing in the Family Code or

relevant caselaw suggesting that a trial court cannot modify a divorce decree to add

restrictions that it could have ordered in the first instance. Because it is immaterial

that Gary’s request is asserted in a modification proceeding, as opposed to an

original divorce proceeding, the question we must answer is, can a trial court impose

a geographic restriction on a sole managing conservator’s right to designate a child’s

primary residence?

      The right of a sole managing conservator to designate a child’s primary

residence derives from Family Code section 153.132, which lists the “exclusive

rights” of a parent who is appointed sole managing conservator. Id. § 153.132. One

of these rights is the right to designate the child’s primary residence.4 Id.


4
      Section 153.132 lists the following as the exclusive rights of a parent sole managing
      conservator:

          (1) the right to designate the primary residence of the child;
          (2) the right to consent to medical, dental, and surgical treatment
              involving invasive procedures;
          (3) the right to consent to psychiatric and psychological treatment;
          (4) the right to receive and give receipt for periodic payments for the
              support of the child and to hold or disburse these funds for the benefit
              of the child;
          (5) the right to represent the child in legal action and to make other
              decisions of substantial legal significance concerning the child;
          (6) the right to consent to marriage and to enlistment in the armed forces
              of the United States;
          (7) the right to make decisions concerning the child’s education;

                                            13
      But under the statute’s express terms, none of the exclusive rights listed are

absolute: section 153.132 states that a parent sole managing conservator possesses

the listed rights “[u]nless limited by court order.” See id.; see also In re A.S., 298

S.W.3d 834, 835–836 (Tex. App.—Amarillo 2009, no pet.) (stating that in section

153.132, “the legislature made it clear that the itemized rights were not absolute but

rather subject to limitation”); cf. In re Reiter, 404 S.W.3d 607, 611 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (describing list of exclusive rights as merely

“statutory default allocation of the rights and duties of conservators”). Thus,

according to the statute’s plain terms, a trial court may restrict—or even eliminate—

any of a parent sole managing conservator’s rights, including the right to designate

a child’s primary residence. See TEX. FAM. CODE ANN. § 153.132.

      Similarly, Family Code section 153.072, addressing parent conservatorships

generally, provides that the trial court “may limit the rights and duties of a parent

appointed as a conservator if the court makes a written finding that the limitation is

in the best interest of the child.” Id. § 153.072; see In re D.R.S., 138 S.W.3d 467,

470 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (recognizing that trial court


         (8) the right to the services and earnings of the child; and
         (9) except when a guardian of the child’s estate or a guardian or attorney
             ad litem has been appointed for the child, the right to act as an agent
             of the child in relation to the child’s estate if the child’s action is
             required by a state, the United States, or a foreign government.

      TEX. FAM. CODE ANN. § 153.132.

                                           14
“is expressly allowed by [Family Code section 153.072] to limit the rights and duties

of a parent appointed as a conservator” if it makes written finding that such limitation

is in child’s best interest). And permitting a trial court to impose a geographic

restriction on the designation of a child’s primary residence is consistent with Texas

public policy to assure that children will have frequent and continuing contact with

parents who have shown the ability to act in their best interest and to encourage

divorced or separated parents to share in the rights and duties of raising their

children. See TEX. FAM. CODE ANN. § 153.001(a); see In re D.C., No. 05-12-01574-

CV, 2014 WL 1887611, at *7 (Tex. App.—Dallas May 9, 2014, no pet.) (mem. op.)

(noting that restriction on right to designate children’s residence ensured parents

would be able to exercise their rights as conservators); see also TEX. FAM. CODE

ANN. § 153.002 (“The best interest of the child shall always be the primary

consideration of the court in determining the issues of conservatorship and

possession of and access to the child.”).

      Further, Texas appellate courts have uniformly held that a trial court is

authorized to impose a restriction on a sole managing conservator’s exclusive right

to designate a child’s primary residence. See In re D.C., 2014 WL 1887611, at *7

(“[A] trial court has the discretion to impose a geographic restriction on a party

appointed sole managing conservator.”); In re S.M.D., 329 S.W.3d 8, 22 (Tex.

App.—San Antonio 2010, pet. dism’d) (recognizing trial court’s power to impose


                                            15
geographic restriction on sole managing conservator but holding that trial court

abused its discretion to do so in that case because it served no purpose as sole

managing conservator was only one with possessory interests); In re M.M.M., 307

S.W.3d 846, 850–52 (Tex. App.—Fort Worth 2010, no pet.) (recognizing trial

court’s discretion to restrict parent sole managing conservator’s exclusive right to

designate child’s primary residence, but holding that, based on evidence presented,

trial court did not abuse that discretion in declining to impose geographic

restriction); In re A.S., 298 S.W.3d at 835–836 (affirming restriction on parent sole

managing conservator’s right to designate child’s residence to within Travis County

and contiguous counties); Sanchez v. Sanchez, No. 04-06-00469-CV, 2007 WL

1888343, *3 (Tex. App.—San Antonio July 3, 2007, pet. denied) (mem. op.) (stating

that trial court has discretion to determine scope of residency restriction on sole

managing conservator).

      In light of these holdings, the plain language of section 153.132, and Texas

public policy as expressed in sections 153.001(a) and 153.002, we conclude that the

trial court was authorized, but not obligated, to impose a geographic restriction on

Laura’s right as sole managing conservator to designate H.D.G.’s primary residence.

      Laura argues that even if the trial court was authorized to order the

modification Gary sought, it did not err in declining to do so here because, as a matter

of law, no material and substantial change in circumstances had occurred since the


                                          16
rendition of the parties’ divorce decree. See TEX. FAM. CODE ANN. § 156.101(a)(1)

(requiring material and substantial change in circumstances to modify

conservatorship). More specifically, she argues that relocation by a sole managing

conservator who has the exclusive right to designate a child’s primary residence

without geographic restriction is, as a matter of law, not a change in circumstances.

In other words, where the conservator has been free to move at any time to any place,

a move cannot constitute a change in circumstances because it is necessarily

anticipated.

      In support of this argument, Laura cites to two cases, neither of which holds

that a move by a parent with an unrestricted right to designate a child’s primary

residence cannot constitute a change in circumstances. See In re H.N.T., 367 S.W.3d

901, 905 (Tex. App.—Dallas 2012, no pet.); Hoffman v. Hoffman, No. 03-03-00062-

CV, 2003 WL 22669032, at *6 (Tex. App.—Austin Nov. 13, 2003, no pet.) (mem.

op.). Rather, the holdings in both In re H.N.T. and Hoffman that the conservators’

moves did not constitute changed circumstances were based on the facts in those

cases established after reviewing the evidence to determine whether the

circumstances that existed when the parties divorced had indeed changed. See In re

H.N.T., 367 S.W.3d at 905; Hoffman, 2003 WL 22669032, at *7.

      In In re H.N.T., the Dallas Court of Appeals reversed an order granting a

father’s request to add a geographic restriction to the mother’s right to designate


                                         17
their children’s primary residence. 367 S.W.3d at 904. The court explained that

although the mother had moved to Grayson County shortly after the parties’ divorce,

because the evidence established that she lived in Houston at the time the divorce

decree was entered, her move from Grayson County back to Houston did not

establish a material and substantial change. Id. The court also observed that the father

had had to travel to Houston to visit the children after the divorce, so his having to

travel the same distance to Houston again was not a change of circumstances. Id.

Thus the court did not conclude that a relocation consistent with not having

geographic restrictions on the right to designate a child’s residence is not a change

in circumstances as a matter of law; rather, the court based its holding on evidence

that when the divorce decree was issued, the mother resided in Houston—the same

city to which she sought to relocate—and the distance that her relocation required

the father to travel had not changed. See id.; see also In re C.F.M., No. 05-17-00141-

CV, 2018 WL 2276351, at *4–5 (Tex. App.—Dallas May 18, 2018, no pet.) (mem.

op.) (holding that evidence was sufficient to support trial court’s finding that

mother’s relocation from Texas to Kansas was material and substantial change of

circumstances; even though divorce decree did not restrict her right to designate

children’s residence, there was no evidence that she had anticipated relocating to

Kansas, as “[s]he did not testify, nor was she asked, whether she had anticipated

moving to Kansas at the time of the divorce trial”).


                                          18
      In Hoffman, the parties’ divorce decree gave the mother the right to designate

their children’s primary residence, but it restricted that right to certain Texas

counties for a period of three years. 2003 WL 22669032, at *1. When that restriction

expired and the mother announced her desire to “fulfill her long-stated intention of

returning to Pennsylvania with the children to live with her mother,” the father filed

a motion to modify to extend the geographic restriction until the children reached

the age of eighteen or graduated from high school. Id. In affirming the trial court’s

denial of the father’s motion, the Austin Court of Appeals noted that when the parties

divorced both knew that the mother wished to return to Pennsylvania, as the divorce

decree authorized her to do after three years. Id. at 7. The court held that because the

mother’s move to Pennsylvania was contemplated in the divorce decree, “the

evidence presented was legally and factually sufficient to deny the requested

modification.” Id. at *6–7. Here again, the court did not hold that a conservator’s

relocation is automatically anticipated and thus cannot constitute a change in

circumstances merely because her right to designate the children’s residence was

unrestricted in the divorce decree.

      We conclude that “[t]he fact that the divorce decree did not prohibit [Laura]

from moving is not evidence that she anticipated moving at the time of the decree”

such that her relocation to Houston could not constitute a change in circumstances.




                                          19
See In re C.F.M., 2018 WL 2276351, at *4. We therefore remand that issue to the

trial court for determination.

      We agree with Gary that the divorce decree’s sole managing conservatorship

decision is subject to modification to the extent of changed circumstances and, thus,

that the trial court’s legal conclusion that “the Court cannot impose a domicile

restriction on a Sole Managing Conservator in a subsequent modification action” is

incorrect.

      Accordingly, we sustain Gary’s first issue.

                             Additional Modifications

      In his second issue, Gary contends that the trial court erred in dismissing his

claims for modification of terms relating to possession and access of H.D.G.—

including pickup and surrender for periods of possession, long distance possession

and access, and international travel—as well as terms affecting the transfer of

H.D.G.’s passport between the parties (the “additional claims”). Gary argues that in

dismissing his additional claims based solely on the argument of counsel, without

permitting the parties to present testimony, the trial court deprived him of his right

to obtain a modification by presenting evidence to show that circumstances had

materially and substantially changed since the court rendered the parties’ divorce

decree. See TEX. FAM. CODE ANN. § 156.101(a)(1).




                                         20
       The trial court did not specifically rule on these claims in its order dismissing

the suit under Rule 13 as frivolous and brought in bad faith. However, because

dismissal of these claims under the Family Code as having no basis in law or fact is

clearly prohibited by Rule 91a.1 and the trial court stated no rationale for dismissing

them under Rule 13, we hold that the trial court erred in dismissing them.

       The Fourteenth Court of Appeals reached the same conclusion on similar

facts. In In re Sisk, a disabled adult child filed a petition for child support against his

divorced parents. 2014 WL 5492804, at *1. The parents filed a “joint motion to

dismiss,” which did not state the specific grounds for dismissal and only argued

broadly that the trial court should dismiss based on the pleadings, “including, but

not limited to, statute of limitations, laches and estoppel.” Id. at *4. After a non-

evidentiary hearing on the motion, the trial court dismissed the petition. Id. at *1.

       Noting that “[t]he Texas Rules of Civil Procedure do not provide for a

defendant’s motion to dismiss in cases brought under the Texas Family Code, except

for want of prosecution or lack of jurisdiction,” the Fourteenth Court of Appeals held

that the parents’ affirmative defenses should have been raised “through a motion for

summary judgment or at trial, not a motion to dismiss or a plea to the jurisdiction.”

Id. at *4 (citing In re D.K.M., 242 S.W.3d at 865–66); see also Tex. Underground,

Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 676 (Tex. App.—Dallas 2011, no




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pet.) (reversing trial court’s order granting motion to dismiss on affirmative defense

of limitations where trial court did not follow summary-judgment procedure).

      Because the court of appeals could not “determine the procedural basis [the

parents] invoked to seek dismissal,” it considered whether the trial court had treated

the motion to dismiss as a summary-judgment motion, but it declined to do so as the

parents had not filed affidavits or evidence with their motion and the trial court had

issued findings of fact and conclusions of law. In re Sisk, 2014 WL 5492804, at *5;

see also Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (“[F]indings of

fact and conclusions of law have no place in a summary judgment proceeding.”).

Accordingly, the court held that because the parents’ motion was not recognized

under the Texas Rules of Civil Procedure or the Texas Family Code, the trial court

erred in granting it to dismiss the petition based on the parents’ affirmative defenses.

In re Sisk, 2014 WL 5492804 at *5.

      As in Sisk, the record in this case does not permit us to treat Laura’s motion

to dismiss as a misnamed motion for summary judgment, for the reasons discussed

above. Accordingly, we conclude that the trial court was not authorized to dismiss

Gary’s additional modification claims on the grounds that he “failed to show any

material and substantial change of circumstances” under the Rules of Civil

Procedure or the Family Code, or to dismiss them under Rule of Civil Procedure 13,

without affording him the opportunity to present testimony. See In re D.K.M., 242


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S.W.3d at 865–66 (reversing trial court’s order granting motion to dismiss based on

affirmative defense because motion to dismiss was not recognized by rules of civil

procedure and “issue was not presented in proper summary judgment form,” which

would have provided procedural safeguards to ensure merits were not determined

before nonmovant had adequate time for discovery and opportunity to respond). In

so doing, the trial court failed to safeguard Gary’s right to prove his additional

claims. See In re J.R.K., No. 06-10-00121-CV, 2011 WL 3242264, at *4 n.9 (Tex.

App.—Texarkana July 8, 2011, no pet. (mem. op.) (reversing and remanding order

denying modification because “[movant] had no opportunity to offer evidence of a

material and substantial change of circumstance or why it was in the child’s best

interests to live with her”); Turcotte v. Trevino, 499 S.W.2d 705, 723 (Tex. App.—

Corpus Christi 1973, writ ref’d n.r.e.) (holding that rules of civil procedure “do not

authorize the trial court to render a judgment against a party to a lawsuit before he

has had an opportunity to present his evidence on disputed issues of fact”).

      At a minimum, Gary was entitled to “an opportunity to be heard at a

meaningful time and in a meaningful manner” on these claims. See Perry v. Del Rio,

67 S.W.3d 85, 92 (Tex. 2001); see also Smith v. Bitner, No. 01-18-00168-CV, 2019

WL 2932842, at *3 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem.

op.) (holding that trial court’s pronouncement of judgment at trial without having

afforded defendant opportunity to present evidence “deprived [defendant] of his


                                         23
right to produce witnesses and evidence of his own, and deprived him of the right to

be heard on the issues that were before the Court”); Fuentes v. Zaragoza, 555 S.W.3d

141, 166–67 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (reversing divorce

decree as to co-defendant entities whose property interests were awarded in property

division because entities were not afforded “meaningful opportunity to present

evidence” and holding that “[t]he right to be heard assumes a full hearing before a

court having jurisdiction over the matter, the right to introduce evidence, and the

right to judicial findings based on the evidence” (citing Perry, 67 S.W.3d at 92)).

      We sustain Gary’s second issue.

                                  Attorney’s Fees

      In his third issue, Gary challenges the portion of the trial court’s dismissal

order awarding Laura attorney’s fees. The award of attorney’s fees in a suit affecting

the parent-child relationship is within the trial court’s discretion. See TEX. FAM.

CODE ANN. § 106.002. In light of our disposition of Gary’s first and second issues,

any award of attorney’s fees is at best premature.

      We conclude that the trial court should be given an opportunity to reconsider

whether to assess attorney’s fees when it renders a new judgment. See Bruni v. Bruni,

924 S.W.2d 366, 368–69 (Tex. 1996) (reversing attorney’s fees award for

reconsideration after concluding trial court’s judgment was premised on erroneous

conclusions of law); In re M.D.C., 171 S.W.3d 361, 364 (Tex. App.—Dallas 2005


                                         24
no pet.) (reversing attorney’s fees award for reconsideration in light of conclusion

that trial court erred in rendering judgment for petitioners on breach of fiduciary duty

claim); see also In re B.N.G., 2019 WL 3729506, at * 12 (reversing and remanding

attorney’s fees award after holding that trial court erred in granting summary

judgment for mother in modification proceeding to give trial court opportunity to

reconsider attorney’s fees award in rendering new judgment).

      We sustain Gary’s third issue.

                                     Conclusion

      We reverse the trial court’s dismissal order and remand this case for further

proceedings.



                                               Evelyn V. Keyes
                                               Justice

Panel consists of Chief Justice Radack and Justices Keyes and Goodman.




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