                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00276-CV


IN THE INTEREST OF K.R. AND
N.R., CHILDREN




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         FROM THE 442ND DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. 2010-61172-393

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In three issues, Appellant Mother appeals the trial court’s judgment, which

denies her request for standard possession and modifies the amount of child




     1
      See Tex. R. App. P. 47.4.
support paid by Appellee Father. We affirm in part and reverse and remand in

part.

                     II. Factual and Procedural Background

        The trial court signed the agreed divorce decree on July 7, 2011, setting up

child support and possession for the parties’ two children, K.R. (age ten at the

time) and N.R. (age four at the time). In June and July 2011, while the divorce

was pending, N.R. was tested for autism. N.R.’s initial special education services

review with Frisco ISD was on July 27, 2011, and he started going to a special

education school, Monday through Friday from 7:40 a.m. to 10:30 a.m., while

K.R. attended elementary school from 7:50 a.m. to 3 p.m.

A. Terms of the 2011 Decree

        The trial court appointed the parents as joint managing conservators and

gave Mother the exclusive right to designate the children’s primary residence

“within 20 miles of Boals Elementary School,” which is in the Frisco ISD. The

agreed decree also set out a nonstandard possession order, which the trial court

determined was in the children’s best interest “due to the parties’ work

schedules.”

        In the nonstandard possession order, the trial court provided that Father

would have possession of the children:

        1.  Each Friday, beginning at 6:00 p.m., until the following
        Monday at 6:00 p.m.

        2.    If [Mother] provides notice to [Father] by 5:00 p.m. on any
        Friday that she will be working the Emergency Room on the

                                          2
         following Tuesday, then [Father] shall instead have possession of
         the children that Friday, beginning at 6:00 p.m., until the following
         Sunday at 6:00 p.m. and from 6:00 p.m. that Tuesday until school
         resumes the following morning.

         3.    Holidays - The parties shall come to a mutual agreement as to
         holiday possession to allow the children to see each party for a
         portion of school-recognized holidays.

         4.     [Mother] shall have possession of the children at all times not
         specifically provided in this order.

The decree also included a right of first refusal: If one of the parents would be

absent for more than 24 hours while the children were in his or her care, the

other parent would have the right to care for the children during that absence.

Mother agreed to nonstandard possession because she had started working

weekends in anticipation that N.R. would need special arrangements because of

his autism.

         The decree provided for Father to pay child support to Mother in the

amount of $600 per month and to pay the children’s health insurance “at a

reasonable cost of $502.19.”

B. Child Support Review Order

         On October 29, 2014, an associate judge signed a child support review

order.    See generally Tex. Fam. Code Ann. §§ 233.001–.029 (West 2014 &

Supp. 2015). In the order, the associate judge found that Father’s gross monthly

resources were $6,162 and that his net monthly resources were $4,469.39.

Applying the statutory 25% for child support, Father was ordered to pay $1,117 in

monthly child support starting November 1, 2014.

                                           3
C. New Trial Motion

      Father moved for a new trial, complaining that applying the statutory child

support guidelines to him would be inappropriate, unjust, and not in the children’s

best interest because the amount of child support in the divorce decree was

agreed to using different calculations based on the parties’ and children’s

circumstances and the agreed nonstandard possession schedule.2

      Mother then filed a cross-petition to modify the child support amount in the

original decree, alleging, among other things, that the circumstances of the

children or the parties had materially and substantially changed since the date of

rendition and that an increase in child support would be in the children’s best

interest. See id. § 156.401 (West Supp. 2015). She also asked for modification

from nonstandard to standard possession. See id. §§ 153.311–.312, 156.101

(West 2014).

      On January 6, 2015, the trial court held a hearing, issued an order setting

aside the October 2014 child support review order, and reset all remaining issues

for a final hearing in March. After the hearing before an associate judge, Mother

filed a request for de novo trial on certain issues, including (1) the amount of child

support and (2) possession of the children.




      2
       Father did not indicate in his motion what calculations were used.

                                          4
D. De Novo Trial

      A few months later, the trial court granted the modification of child support

in part, ordering Father to pay Mother $792.50 per month in child support, and

denying the remainder of Mother’s requests. Mother filed a request for findings

in the child support order, see Tex. Fam. Code Ann. § 154.130(a) (West 2014),

and the trial court set out the following statement on guidelines in the order:

            In accordance with Texas Family Code section 154.130, the
      Court makes the following findings and conclusions regarding the
      child support order made in open court in this case on April 22,
      2015:

      1.    The application of the percentage guidelines in this case
      would be unjust or inappropriate.

      2.     The net resources of [Father] per month are $6,582.22.

      3.     The gross resources of [Mother] per month are $4,833.33.

      4.    The percentage applied to the first $8,550 of [Father’s] net
      resources for child support is 12.04 percent.

      5.    The specific reasons that the amount of support per month
      ordered by the Court varies from the amount computed by applying
      the percentage guidelines of section 154.129 of the Texas Family
      Code are: the Court applied the percentage previously agreed to by
      the parties to [Father’s] current income.

      Mother moved for a new trial, objecting to the amount of child support

because (1) the 2011 decree never mentioned any percentage, (2) the parties

never agreed to a percentage but rather to an amount, $600, and (3) the trial

court made a math error calculating its percentage. Mother also argued that the

evidence at trial showed that while Father’s income and the children’s expenses


                                          5
had increased, her income had decreased. She complained that the trial court

had abused its discretion by awarding less child support than she needed and by

refusing to order standard possession.

                                   III. Discussion

      Most appealable issues in family law cases are evaluated for an abuse of

discretion, see Herzfeld v. Herzfeld, No. 05-10-01298-CV, 2012 WL 6061772, at

*2 (Tex. App.—Dallas Dec. 6, 2012, no pet.) (mem. op.), and, indeed, this is the

standard of review applicable to the issues Mother raises here.

A. Standard of Review

      A trial court abuses its discretion if it acts without reference to any guiding

rules or principles, that is, if its act is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39

(Tex. 2004). A trial court also abuses its discretion by ruling without supporting

evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). And it

abuses its discretion if it fails to analyze the law correctly or misapplies the law to

established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

      In our review of family law matters under the abuse of discretion standard,

legal and factual sufficiency are not independent grounds of error but are

relevant factors in deciding whether the trial court abused its discretion. See In

re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on

reh’g); see also Herzfeld, 2012 WL 6061772, at *2; In re W.M., 172 S.W.3d 718,

725 (Tex. App.—Fort Worth 2005, no pet.). In determining whether there has

                                           6
been an abuse of discretion because the evidence is legally or factually

insufficient to support the trial court’s decision, we consider whether the court

had sufficient information upon which to exercise its discretion and whether it

erred in its application of that discretion. In re M.M.M., 307 S.W.3d 846, 849

(Tex. App.—Fort Worth 2010, no pet.); W.M., 172 S.W.3d at 725; T.D.C., 91

S.W.3d at 872. “The traditional sufficiency review comes into play with regard to

the first question. With regard to the second question, we determine, based on

the elicited evidence, whether the trial court made a reasonable decision.”

Newell v. Newell, 349 S.W.3d 717, 721 (Tex. App.—Fort Worth 2011, no pet.)

(quoting W.M., 172 S.W.3d at 725 (footnote omitted)).

      Regarding sufficiency of the evidence, we may sustain a legal sufficiency

challenge only when (1) the record discloses a complete absence of evidence of

a vital fact, (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered

to prove a vital fact is no more than a mere scintilla, or (4) the evidence

establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo,

444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977

S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining

whether there is legally sufficient evidence to support the finding under review,

we must consider evidence favorable to the finding if a reasonable factfinder

could and disregard evidence contrary to the finding unless a reasonable



                                        7
factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649,

651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

B. Child Support

      In her first issue, Mother argues that the trial court abused its discretion by

acting without reference to any guiding rules or principles in determining the

amount of child support.

      A trial court’s child support order will not be disturbed on appeal unless the

complaining party can show a clear abuse of discretion. Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990); In re K.R.A., No. 02-13-00154-CV, 2014 WL

1691808, at *3 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op. on

reh’g). We review the evidence in the light most favorable to the child support

order and indulge every presumption in favor of the trial court’s ruling. In re

V.L.K., No. 02-10-00315-CV, 2011 WL 3211245, at *2 (Tex. App.—Fort Worth

July 28, 2011, no pet.) (mem. op.).

                                         8
      Family code section 154.130 requires findings on monthly net resources

when, as here, the trial court orders an amount of child support that varies from

the statutory percentage guidelines. See Walker v. Walker, No. 02-13-00229-

CV, 2014 WL 2619147, at *4 (Tex. App.—Fort Worth June 12, 2014, pet. denied)

(mem. op.) (citing Tex. Fam. Code Ann. § 154.130(a)(3)); see also In re A.M.P.,

368 S.W.3d 842, 846–47 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(“Though the trial court is not required to follow the guidelines, it must make

certain fact findings if the amount of child support it orders varies from the

amount computed by applying the percentage guidelines under Texas Family

Code sections 154.125 or 154.129, as applicable.”).

      Section 154.130(b) is very specific about the required findings. See Tex.

Fam. Code Ann. § 154.130(b). It provides,

      If findings are required by this section, the court shall state whether
      the application of the guidelines would be unjust or inappropriate
      and shall state the following in the child support order:

      “(1) the net resources of the obligor per month are $__________;

      “(2) the net resources of the obligee per month are $__________;

      “(3) the percentage applied to the obligor’s net resources for child
      support is __________%; and

      “(4) if applicable, the specific reasons that the amount of child
      support per month ordered by the court varies from the amount
      computed by applying the percentage guidelines under Section
      154.125 or 154.129, as applicable.”

Id.; see Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *6 (Tex.

App.—Fort Worth Jan. 22, 2015, no pet.) (mem. op.) (“[I]f the child support

                                        9
amount varies from the amount computed by applying the percentage guidelines

in the family code, the trial court must state specific reasons for ordering that

amount of child support.”).

      In determining whether application of the guidelines would be unjust or

inappropriate under the circumstances, section 154.123 provides that the court

shall consider evidence of all relevant factors, including (as appropriate here) the

children’s ages and needs; the parents’ abilities to contribute to the children’s

support; any financial resources available to support the children; the amount of

time of possession of and access to the children; the amount of the obligee’s net

resources; child care expenses incurred by either party in order to maintain

gainful employment; the amount of other deductions from wage or salary income;

provision of health insurance and payment of uninsured medical expenses;

special or extraordinary educational, health care, or other expenses of the

children; the cost of travel to exercise possession of and access to the children;

and “any other reason consistent with the best interest of the child[ren], taking

into consideration the circumstances of the parents.”       Tex. Fam. Code Ann.

§ 154.123 (West 2014).

      The heart of Mother’s argument on appeal with regard to her first issue is

that the trial court had no basis on which to determine—as it did in its section

154.130(b) “specific reasons” finding—that the parties had previously agreed to

12.04% of Father’s income for child support when there was no evidence of a

percentage previously agreed to by the parties or an agreement between them

                                        10
as to how the amount of child support was computed. That is, she challenges

the sufficiency of the evidence to support this finding, directing us to the

language in the final decree, which she correctly points out “just states that child

support is to be $600.00 and does not state how that amount was determined,”

and her testimony that she did not know how child support had been calculated.

      When Father’s counsel asked Mother how the $600 child support amount

had been calculated, Mother said that she thought it had been something like

“comparing the two incomes and taking a difference or something of that nature.”

Mother further stated that because Father had been making around $86,000 at

the time of divorce, $600 per month would have been less than 10% of his

income. The remaining evidence in the record on this issue came from Father,

who responded, “Yes,” to his counsel’s question, “The $600, was that about 12%

of your net income?”     Neither party testified that they had agreed that child

support would be calculated based on a percentage of Father’s income.

      Mother also argues that Father’s 2011 net income was never entered into

evidence, preventing the trial court from being able to “determine that $600.00

was 12.[0]4 percent of his net income.” Father responds that, using the numbers

provided by Mother in her brief, see Tex. R. App. P. 38.1(g),3 and applying the


      3
         In her brief, Mother states that Father made $87,757 in 2011, and from
this amount, she computes his monthly gross income as $7,313, which she
states “yields net resources in the amount of $5,592.40” after applying the 2011
Attorney General’s tax chart. See “Office of the Attorney General 2011 Tax
Charts,” available at https://texasattorneygeneral.gov/files/cs/2011taxchart.pdf
(last visited June 6, 2016).

                                        11
$502.19 per month in children’s health insurance ordered in the decree (for which

Mother failed to account) to his net monthly income, his net monthly resources in

2011 were $5,090.21. He then concludes “[t]he percentage calculation is off by

.25 percentage points from 12.04 percent.”         That is, Father appears to

acknowledge that the trial court made a math error in the 2015 judgment.

      Based on the above, we agree with Mother that the trial court did not have

legally and factually sufficient evidence upon which to determine that the parties

had previously agreed to 12.04% of Father’s net monthly resources as child

support. See Ford Motor Co., 444 S.W.3d at 620; Pool, 715 S.W.2d at 635; cf.

Walker, 2014 WL 2619147, at *4 (holding that the evidence was sufficient to

support the trial court’s finding that $1,000 per month was within the statutory

child support guidelines and thereby did not require section 154.130 findings). 4


      4
        We note that although Mother does not specifically raise complaints about
the trial court’s other section 154.130(b) findings, we cannot determine from this
record how the trial court calculated the other numbers that it used. Cf. In re
T.N.H., No. 02-06-00074-CV, 2007 WL 495162, at *8 (Tex. App.—Fort Worth
Feb. 15, 2007, no pet.) (mem. op.) (holding no preservation when parent did not
object to trial court’s failure to make a finding on obligee’s net resources). The
trial court found that Father’s present net monthly resources were $6,582.22,
which is $420.22 higher than the $6,162 amount listed in Father’s pay receipts as
his base pay per month (and the amount found by the associate judge in October
2014). And instead of including Mother’s “net resources” pursuant to the
statutory-findings requirement, it listed Mother’s “gross resources,” which would
reflect a higher dollar amount. Cf. Tex. Fam. Code Ann. § 154.130(b). Further,
while the statute requires that the findings state the percentage applied to the
obligor’s net resources, in its findings, the trial court stated, “The percentage
applied to the first $8,550 of [Father’s] net resources for child support is 12.04
percent.” [Emphasis added.] 12.04% of $8,550 is $1,029.42, not the monthly
amount actually ordered by the trial court—$792.50—thus this finding appears to
be contrary to both applicable family law and the laws of mathematics. Compare
                                       12
Because the trial court ruled without supporting evidence for this finding, it

abused its discretion. See Garcia, 363 S.W.3d at 578. Therefore, we sustain

Mother’s first issue.

C. Possession

      In her second and third issues, Mother argues that the trial court abused its

discretion by finding insufficient evidence to show a material and substantial

change in circumstances had occurred with regard to the issue of access to and

possession of the children and by finding insufficient evidence to show that the

requested modification of access to and possession of the children was in the

children’s best interest. See Tex. Fam. Code Ann. § 156.101(a).

      1. Applicable Law

      We review the trial court’s decisions on custody, control, possession, and

visitation matters for an abuse of discretion. Newell, 349 S.W.3d at 720; M.M.M.,

307 S.W.3d at 849; see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);

W.M., 172 S.W.3d at 724.        The trial court may modify possession if the

modification would be in the child’s best interest and the circumstances of the

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

substantially changed since the date of the order’s rendition. See Tex. Fam.

Code Ann. § 156.101(a)(1)(A).


id. § 154.130, with id. § 154.125 (“Application of Guidelines to Net Resources”),
and id. § 154.126 (“Application of Guidelines to Additional Net Resources”) (West
2014).

                                        13
      The best interest of the child shall always be the primary consideration of

the court in determining the issues of possession of and access to the child.

Newell, 349 S.W.3d at 721 (citing Tex. Fam. Code Ann. § 153.002 (West 2008)).

There is a rebuttable presumption that the standard possession order provides

reasonable minimum possession for a parent named as a joint managing

conservator and is in the child’s best interest. Id. (citing Tex. Fam. Code Ann.

§ 153.252 (West 2008)). If special circumstances make the standard possession

order unworkable or inappropriate, however, the trial 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. Id. (citing Tex. Fam. Code Ann.

§ 153.253 (West 2008)). In deviating from the standard possession order, the

trial court may consider the age, developmental status, circumstances, needs,

and best interest of the child, the circumstances of the managing conservators,

and any other relevant factor. Id. (citing Tex. Fam. Code Ann. § 153.256 (West

2008)).

      2. Evidence

      Two years before the trial, Mother moved from an apartment in Frisco to a

house in Prosper.5 Mother married J.S. in April 2014.6 At the time of the trial, in


      5
        Mother said that she bought the house in Prosper because she could not
afford a house in Frisco.
      6
      While material changes may include marriage by one of the parties or a
change in the home surroundings, see Arredondo v. Betancourt, 383 S.W.3d
730, 734–35 (Tex. App.—Houston [14th Dist.] 2012, no pet.), even if a party
                                        14
2015, Mother no longer worked weekends and instead worked Monday through

Friday because N.R. had finished with the special education school and was now

in regular elementary school. K.R. was in middle school.        Both children still

attended school in the Frisco ISD but lived with Mother in Prosper.

      Mother said that she and the children left the house in Prosper at 7:15 a.m.

With traffic, they arrived at the school in Frisco by 7:45 a.m., and then she went

to work. Depending on Mother’s work schedule, she or her mother would pick up

the children after school.   The children’s schools released at different times,

necessitating more than one trip.7

      Once they were home with Mother, both children had homework. After

homework, they had dinner, then “by 7:30, it’s take a bath and it’s time to go to

bed.” Mother said that she and the children only had “maybe 30 minutes” to just

sit and talk. Mother said that she would love to have time on weekends to plan

some outings and have some fun with the children.

      Mother testified that a standard possession order would give her some

weekends with the children, which would allow her to spend some “laid-back”

shows that these are material and substantial changes, she must still show that
modifying possession would be in the children’s best interest. See Tex. Fam.
Code Ann. § 156.101(a).
      7
       Mother noted that if the children could attend school in Prosper, they
would not have an hour or so in the car each day. In the 2011 decree, Mother
was awarded the exclusive right to designate the children’s primary residence
“within 20 miles of” the children’s Frisco ISD elementary school. At the
conclusion of the trial, the trial judge counseled Mother to change the children’s
school to Prosper since she had the right to designate their primary residence.

                                       15
quality time with them. She further testified that a standard possession order

would allow Father to have some designated time in the summer and the

holidays would already be decided by the court, so they would not have to come

to any agreements.     Mother pointed out that in addition to giving her some

weekends with the children, the standard possession order would give Father

thirty days with the children in the summer, every other Thanksgiving, part of

every Christmas, and every other spring break, which he did not have under the

current arrangement and which would be in the children’s best interest.8

       During cross-examination, Mother acknowledged that she had the children

four days a week, including over Thanksgiving, Christmas, and during the

summer, and that they had dinner together at night.        She also agreed that

stability was important for N.R. because of his autism. And she agreed that she

could attend the children’s activities on the weekend and said that she usually

did.

       Father’s base schedule at work was 7:30–4:00, Monday through Friday,

and he was “on call” twelve days a month.9 Father explained that being “on call”

meant only that he would have to work for “usually very short periods of time” on

the weekends. If he was on call on a weeknight, it just meant that he stayed late.



       Father said that before the suit was filed, it had always been “pretty easy”
       8

for him and Mother to agree to a visitation schedule for holidays and summer.
       9
     Mother said that she did not get the children when Father worked on
weekends.

                                        16
Father was on a schedule of being on call two weekends one month and then

one weekend the next. He was paid for a three-hour minimum when called in on

the weekend and tried to get out under the minimum. Father’s commute was 29

miles each way, and he said that if he had standard possession, he did not know

how he could “make that work” with having the children every Thursday evening.

      Father’s time records showed that through 2014, there were fifteen

weekends when he was on call and was actually called in, and from January

2015 to the first part of March, there were three occasions when he was on call

and actually called in. Father’s time records were admitted into evidence and

showed the following:

    On Saturday, February 1, 2014, he worked approximately an hour and a
     half, from 6:10 p.m. to 7:39 p.m.

    On Saturday February 8, 2014, he worked approximately three hours, from
     1:01 p.m. to 4:18 p.m.

    On Saturday, March 1, 2014, he worked approximately six hours, from
     4:30 p.m. to 10:53 p.m.

    On Sunday, March 2, 2014, he worked approximately two hours, from
     12:07 p.m. to 2:04 p.m.

    On Saturday, April 19, 2014, he worked approximately three hours, from
     5:47 p.m. to 9:04 p.m.

    On Friday, May 23, 2014, he worked approximately eight and a half hours,
     from 2:07 a.m. to 7:56 a.m. and then from 4:30 p.m. to 7:47 p.m.

    On Saturday, May 24, 2014, he worked approximately three and a half
     hours, from 10:09 a.m. to 11:52 a.m. and again from 12:06 p.m. to 1:43
     p.m.


                                      17
   On Sunday, June 8, 2014, he worked approximately three and a half
    hours, from 8:42 a.m. to 12:13 p.m.

   On Friday, July 18, 2014, he worked approximately five hours, from 4:30
    p.m. to 9:38 p.m.

   On Sunday, July 20, 2014, he worked approximately four hours, from 3:58
    p.m. to 8:08 p.m.

   On Friday, August 15, 2014, he worked approximately four hours, from
    4:00 p.m. to 7:54 p.m.

   On Saturday, August 16, 2014, he worked approximately five hours, from
    1:37 p.m. to 6:27 p.m.

   On Saturday, August 30, 2014, he worked approximately two hours, from
    12:42 p.m. to 2:20 p.m.

   On Sunday, August 31, 2014, he worked approximately two hours, from
    11:27 p.m. to 1:49 a.m.

   On Saturday, September 13, 2014, he worked approximately two and a
    half hours, from 7:56 a.m. to 10:31 a.m.

   On Saturday, October 18, 2014, he worked approximately eight hours,
    from 3:22 p.m. to 11:38 p.m.

   On Friday, November 7, 2014, he worked approximately half an hour, from
    7:55 p.m. to 8:22 p.m.

   On Saturday, January 3, 2015, he worked approximately an hour and a
    half, from 10:48 a.m. to 12:09 p.m.

   On Saturday, February 7, 2015, he worked approximately two hours, from
    4:22 p.m. to 6:32 p.m.

   On Saturday, February 21, 2015, he worked approximately three and a
    half hours, from 12:47 p.m. to 4:08 p.m.10


     10
       The records further showed that on Friday, March 27, 2015, Father
worked from 7:58 p.m. to 9:34 p.m.; on Saturday, March 28, 2015, he worked
                                   18
      Father said that according to the 2011 possession schedule, he had

possession of the children from 6 p.m. on Friday until 6 a.m. on Monday. His

adult stepdaughter—Mother’s daughter—lived in Father’s house with her

husband and baby, and she took the children to school on Mondays. Father said

that when he got the children on Fridays, they would usually go get something to

eat and then watch TV or go see a movie; he cooked on Saturday and Sunday

nights. Father said that sometimes the children liked to stay home with their

sister and the baby.

      On Saturday mornings, N.R. participated in his Allstars program11 at 10

a.m. so they would get up and have breakfast while K.R. slept, and then Father

would drop N.R. off at Allstars, and he and K.R. would go to the gym or do a few

things around the house before picking N.R. up at noon. Father stated,

             We usually find time to -- we go do something together. We’ll
      go to the park or we’ll -- we might go to a movie or we might -- [K.R.]
      likes to spend the night at his friend’s house or we have a friend
      spend the night. [N.R.] always likes it when [K.R.’s] friends come
      spend the night.

            Sunday -- Sunday if I -- the weekends I’m on call, we don’t go
      to church, we go to church the other weekend. We come back and,
      you know, make -- do a little -- [N.R.] and I will -- might do some



from 7:26 p.m. to 8:38 p.m.; and on Sunday, April 19, 2015, he worked from 8:17
a.m. to 12:24 p.m. and from 6:44 p.m. to 9:23 p.m.
      11
       Father explained that the Allstars program was a leadership program for
autism spectrum children and that N.R. had been attending it since 2012 and
went nearly every Saturday.

                                        19
      reading or do a little writing. We watch some TV, go to the park. I
      mean, you know, we just -- we have a lot of fun, you know.

Father added that K.R. had homework every weekend that he had to do at

Father’s house. Father said that most of the time he spent with the children was

quality time but “not necessarily fun.” Father said that he had had to drive a lot

when K.R. had two jazz band programs on the same Saturday and N.R. had his

autism program.

      3. Analysis

      Based on this record, which provides some evidence to support the

conclusion that leaving the existing structure in place would be in N.R. and K.R.’s

best interest, particularly in light of N.R.’s autism and Father’s stated inability to

make possession work on Thursdays based on his work schedule, and because

we cannot conclude that a trial court abused its discretion merely because we

would have ruled differently in the same circumstances, see E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995), we hold that the

trial court did not abuse its discretion by refusing to change the nonstandard

possession schedule to standard possession. We overrule Mother’s third issue,

on the best interest ground of section 156.101(a), and do not reach her second

issue on material and substantial change. See Tex. R. App. P. 47.4.

                                  IV. Conclusion

      Having sustained Mother’s first issue, we reverse the portion of the trial

court’s judgment pertaining to child support and remand the case for a new trial


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on that issue. Having overruled Mother’s third issue and having thereby not

reached Mother’s second issue, we are constrained by the applicable standard of

review to affirm the remainder of the trial court’s judgment.12



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

LIVINGSTON, C.J.; and GABRIEL, J., concur without opinion.

DELIVERED: June 9, 2016




      12
         Mother asked for standard possession in her petition and argued to the
trial court that this would enable her to share some unstructured “fun” time with
the children, such as the extracurricular activities described by Father as
enjoyable to the children—sleepovers, movies, trips to the park, and going to
church on Sundays—which would be impossible during Mother’s periods of
possession during the school year. As discussed above, the trial court did not
abuse its discretion in denying Mother’s request for standard possession. While
Mother did not suggest any other alternatives to the trial court, we note that
nothing prevented the trial court, in the interest of equity, from allowing Mother at
least some weekends of possession during the school year, especially during
those weekends when Father was on call and might otherwise be unavailable.

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