      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        444444444444444
                                       NO. 03-05-00533-CV
                                        444444444444444


                                   Clifford Zeifman, Appellant

                                                  v.

                                 Sheryl Diane Michels, Appellee



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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. 97-09369, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
 44444444444444444444444444444444444444444444444444444444444444444


                                           OPINION


               Clifford Zeifman appeals the trial court’s modification order of a divorce decree

giving appellee Sheryl Diane Michels the exclusive right to make decisions concerning their

daughter’s education. In two issues, he complains that the trial court abused its discretion in finding

a material and substantial change in circumstances sufficient to warrant a modification and in

determining that the modification was in the best interest of the child. Because the evidence is

legally insufficient to support a modification, we reverse and render.


                      FACTUAL AND PROCEDURAL BACKGROUND

               Zeifman and Michels were married on January 12, 1992. Two children were born of

their marriage: G.L., a son, on August 13, 1994, and A.A., a daughter, on February 16, 1997. A
divorce decree was signed on August 4, 1998, based upon an “irrevocable mediated settlement

agreement” that was filed with the court and incorporated into the decree. See Tex. Fam. Code Ann.

§ 6.602 (West 2006). In the decree, the parties agreed that its provisions could be modified by a

court of competent jurisdiction.

               The decree named both parents as joint managing conservators. As to the children’s

education, the decree included a negotiated agreement:


       The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that
       the children shall attend the University of Texas Lab School until such a time as the
       children are of the age to attend elementary school. The Court finds that the parties
       have agreed and IT IS THEREFORE ORDERED that, at that time, the children shall
       attend the public school in the following order of priority for elementary school: (1)
       Bryker Woods; or (2) Casis; provided, however, that if neither party lives in a
       residential area eligible to attend either Bryker Woods or Casis, then the children
       shall attend elementary school which the children are eligible to attend, at the highest
       rated school, the highest rating being determined by the annual TAAS testing, using
       the previous year’s rankings, or shall attend another elementary school to which the
       parties agree in writing. The Court finds that the parties have agreed and IT IS
       THEREFORE ORDERED that for middle school, the children shall attend the
       middle school into which the children’s elementary school feeds. The Court finds
       that the parties have agreed and IT IS THEREFORE ORDERED that for high school,
       the children shall attend the high school into which the children’s middle school
       feeds.


The decree also contained a provision specifying a mechanism if the parties were unable to agree:


       The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that
       if the parties cannot agree on educational decisions for a child, the parties shall
       follow the recommendations of the person that is the child’s teacher at the time of the
       decision. IT IS ORDERED that, as child support, Clifford Zeifman and Sheryl Diane
       Michels Zeifman shall each pay . . . half (½) of the costs referable to the children’s
       attendance at the University of Texas Lab School.




                                                  2
At the time of the divorce, Michels lived in the house that had been the couple’s home prior to the

divorce, which was within the geographical boundaries for enrollment at Bryker Woods elementary

school. Zeifman moved into a house across the street from the school.

               Although the parties intended for their son, G.L., to attend Bryker Woods, they

learned while he was attending kindergarten that he had learning difficulties. They were able to

reach an agreement to move him to a private school that both parents agreed was more suitable to

his special needs.

               A.A. entered the first grade at Bryker Woods. In April 2004, when A.A. was still in

the first grade, Michels applied for her admission to St. Andrew’s Episcopal School for the next

school year. She did not notify Zeifman of the application. As part of her application, Michels

included a recommendation from A.A.’s first-grade teacher at Bryker Woods, and A.A. was tested

to determine her academic suitability. On May 3, A.A. was placed on a waiting list for admission

and Michels notified Zeifman of her decision to apply for A.A.’s admission to St. Andrew’s. In

June, A.A. was accepted for admission to the school.

               Zeifman objected to the change of schools and insisted that the parties follow the

decree, which provided for A.A. to continue her education at Bryker Woods. Michels consulted with

A.A.’s first-grade teacher at Bryker Woods who had supplied the application recommendation. The

teacher advised Michels she thought “it would be best if [A.A.] stayed at Bryker Woods.”

               On July 19, 2004, Michels filed a Petition to Modify Parent-Child Relationship,

asking the court to modify the decree and award her the exclusive right to make educational

decisions regarding A.A. The petition stated that the order to be modified was the Agreed Final



                                                3
Decree of Divorce that was rendered on August 4, 1998. Michels alleged that (i) the circumstances

of “the children or of one or both of the joint managing conservators have materially and

substantially changed since the rendition of the order such that the provisions of the Agreed Final

Decree of Divorce regarding education are no longer appropriate and in the best interest of the

children who are the subject of this suit,” and (ii) A.A. had been accepted for admission to St.

Andrew’s which was a “more exceptional educational opportunity than either [her current school]

Bryker Woods or Casis elementary schools.”

                After a hearing, the trial court modified the decree to provide that Michels has the

sole right to make educational decisions for their daughter. The trial court determined that the

circumstances of the child had materially and substantially changed since the date of the rendition

of the original divorce decree. Finding only that “A.A. is different, times are different, you’re

remarried, life is different,” the trial court concluded that these circumstances constituted material

and substantial changes. Turning to the child’s best interest, the trial court concluded that it was in

the child’s best interest for Michels to have the exclusive responsibility for educational decisions.

                Although Zeifman requested findings of fact and conclusions of law, the trial court

failed to file them.


                                            ANALYSIS

                In two issues on appeal, Zeifman contends that the trial court abused its discretion

in modifying the divorce decree giving Michels the exclusive right to make decisions concerning

A.A.’s education. Specifically, Zeifman complains that the trial court abused its discretion in finding

a material and substantial change in circumstances sufficient to warrant a modification and that the

                                                  4
modification would be in the best interest of the child because the evidence presented at trial was

legally and factually insufficient as to both requirements.


Standard of Review

               We review a trial court’s decision to modify conservatorship under an abuse of

discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of

P.M.B., 2 S.W.3d 618, 622 (Tex. App.—Houston [14th Dist.] 1999, no pet.). The trial court’s order

will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.

Id. A trial judge is wisely vested with this discretion because she is best able to observe the

witnesses’ demeanor and personalities. A trial court abuses its discretion if it acts arbitrarily and

unreasonably or without regard to guiding rules or principles. K-Mart Corp. v. Honeycutt, 24

S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (applying

abuse of discretion standard with regard to child support order); Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial court decided an issue in a

manner differently than an appellate court would under similar circumstances does not establish an

abuse of discretion. An abuse of discretion does not occur as long as some evidence of a substantive

and probative character exists to support the trial court’s decision. P.M.B., 2 S.W.3d at 622.

               Under an abuse of discretion standard, legal and factual sufficiency challenges to the

evidence are not independent grounds of error, but are relevant factors in assessing whether the trial

court abused its discretion. In re D.M., 191 S.W.3d 381, 393 (Tex. App.—Austin 2006, pet. denied);

Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston [1st District] 2005, pet. denied).

Because we apply an abuse-of-discretion standard to a modification suit, the traditional sufficiency

                                                  5
standards of review overlap the abuse of discretion standard, and appellate courts apply a hybrid

analysis. Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.—Austin 2002, no pet.); In re D.S., 76

S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

                Once it has been determined that the abuse-of-discretion standard applies, an

appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient

information on which to exercise its discretion; and (2) whether the trial court erred in its application

of discretion. Echols, 85 S.W.3d at 477-78; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.

App.—El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the

first question; however, the inquiry does not end there. Echols, 85 S.W.3d at 478. The appellate

court then proceeds to determine whether, based on the evidence, the trial court made a reasonable

decision, that is, that the court’s decision was neither arbitrary nor unreasonable. Id.

                If findings of fact and conclusions of law are properly requested, the trial court’s duty

to file findings and conclusions is mandatory, and the failure to respond when all requests have been

properly made is presumed harmful unless the record shows that the complaining party has suffered

no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus.,

Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The court must make findings on each

material issue raised by the pleadings and evidence, but not on evidentiary issues. In re Davis, 30

S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 434

(Tex. App.—El Paso 1999, no pet.). Because the trial court did not issue any findings of fact or

conclusions of law, all facts necessary to support the trial court’s ruling and supported by the

evidence are implied in favor of the trial court’s decision. BMC Software Belgium, N.V. v.



                                                   6
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). But when the appellate record includes both the

reporter’s record and the clerk’s record, as it does here, the implied findings are not conclusive and

may be challenged for legal and factual sufficiency. Vickery v. Commission for Lawyer Discipline,

5 S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). We thus turn to the

standard for a challenge to the legal sufficiency of the evidence.

               When an appellant attacks the legal sufficiency of an adverse finding on an issue on

which he did not have the burden of proof, the appellant must demonstrate on appeal that there is

no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).

A legal sufficiency challenge may be sustained 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.

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether

there is legally sufficient evidence to support the finding under review, we examine the record for

evidence and inferences that support the challenged finding, while disregarding all contrary evidence

and inferences. We must consider evidence favorable to the finding if a reasonable factfinder could,

and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 828 (Tex. 2005).

               In determining a factual sufficiency question, we weigh and consider all the evidence

in the record. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When an

appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have



                                                  7
the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986). When conducting a factual sufficiency review, a court of appeals must not

merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003).


Modification of Conservatorship Because of Material and Substantial Change

                To support modification of an order regarding conservatorship, a trial court must find

that the 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 of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1)

(West Supp. 2005). The party seeking modification has the burden to establish these elements by

a preponderance of the evidence. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.—Dallas 2004,

no pet.); In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.—Fort Worth 2002, pet. denied); Considine

v. Considine, 726 S.W.2d 253, 255 (Tex. App.—Austin 1987, no writ). The best interest of the child

is always the primary consideration of the court in determining issues of conservatorship. Tex. Fam.

Code Ann. § 153.002 (West 2002).

                In a conservatorship modification action, a threshold inquiry of the trial court is

whether the moving party has met the burden imposed upon him of showing a material and

substantial change; otherwise the trial court must deny the motion to modify. Bates v. Tesar, 81

S.W.3d 411, 427 (Tex. App.—El Paso 2002, no pet.). To prove that a material change in

circumstances has occurred, the petitioner must demonstrate what conditions existed at the time of

                                                    8
the entry of the prior order as compared to the circumstances existing at the time of the hearing on

the motion to modify. Agraz, 143 S.W.3d at 554; Considine, 726 S.W.2d at 255. The petitioner

must show what material changes have occurred in the intervening period. Id.


    (1) The Petition to Modify Parent-Child Relationship

               The only basis asserted in the modification petition to support the requirement of a

material and substantial change was A.A.’s application and admission to St. Andrew’s. Having

gained her daughter’s admission to St. Andrew’s Episcopal School, Michels filed a modification

petition seeking a departure from the negotiated agreement concerning her daughter’s education

contained in the agreed divorce degree. Zeifman opposed the modification, seeking to continue their

daughter’s education at Bryker Woods, the public school to which the parties had agreed and set

forth in the divorce decree. Although the petition references both children, the parties agree that the

modification at issue and the court’s order relate only to A.A.


    (2) The Evidence

               The testimony showed that the dispute that led to the filing of the petition for

modification arose when Michels applied for and obtained A.A.’s admittance to St. Andrew’s

Episcopal School. As a Jew raising Jewish children, Zeifman opposed the modification because he

did not want the child to attend a Christian school and she was thriving at the public school the

parties had agreed to in the divorce decree.

               The undisputed evidence showed that A.A. progressed successfully through

kindergarten, first grade and the beginning of second grade at Bryker Woods prior to trial. In April



                                                  9
2004, Zeifman and Michels discussed enrolling A.A. at a private school. Zeifman proposed that

A.A. attend the Austin Jewish Academy, but Michels disagreed and rejected the proposal. Michels

did not believe the academy had “the academic strengths that I would require for her to be there.”

Without notifying Zeifman, Michels contacted and applied to St. Andrew’s for admission, had A.A.

tested, and asked A.A.’s current first-grade teacher for a recommendation. After A.A. was placed

on a waiting list on May 3 subject to available openings at the school, Michels notified Zeifman.

A.A. was accepted for admission on June 28. On June 30, Michels executed the school’s enrollment

contract and forwarded a tuition check. She informed the school, “I am working with her father to

get his agreement regarding her attendance. Otherwise her enrollment will be subject to modification

of our divorce decree.”

                Zeifman did not agree to enroll A.A. at St. Andrew’s, insisting that the parties follow

the agreement to send her to Bryker Woods, the public school to which the parties had agreed, and

at which the parties agreed she was doing well. Zeifman testified,


       My daughter is thriving at the community public school across the street from my
       home. And I would only agree to enroll her in something that she had a
       demonstrable need for, like [G.L.] has a need for a specialized school, or that Sheryl
       [Michels] and I agreed was a place that was going to better fit our idea of how we
       want to raise our kids.


As long as A.A. was thriving at Bryker Woods, and there was no demonstrable need to send her to

a specialized private school, Zeifman would not agree to send A.A. to a private school other than the

Austin Jewish Academy, a school with the religious affiliation in which the parties agreed A.A. was

being raised.



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               To support her petition that a material and substantial change had occurred since the

rendition of the original divorce decree, Michels offered evidence that in the years since the time of

the parties’ divorce, A.A. had grown “from an infant to a beautiful, smart, lovely 7-year old girl.”

She urged that A.A.’s academic abilities and opportunities had surpassed the expectations the parents

had at the time of the divorce decree. In support of the modification order, Michels testified,


       Q: At the time, did you have any idea that there would be an opportunity for her to
          attend St. Andrew’s school?

       A: No I did not.

            ....

       Q: What other—now other than the mere passage of physical time, have there been
          other changes that have occurred—significant changes that have occurred in
          either your life or in Mr. Zeifman’s life?

       A: I believe there have been significant changes.

       Q: And could you tell the Court what those are.

       A: In my life or—

       Q: Well, let’s start with your life.

       A: Okay. Well, since the—since September of ‘97, that’s been quite a bit of time,
          I think I’ve grown in a lot of ways. My children have grown up, and I’ve
          certainly learned from them. I’ve grown as a parent. Hopefully, as a big sister,
          as a daughter, as a friend, as a person, as a physician, as all of those things in
          these years of life experience. I think I’m happier and hopefully smarter.

       Q: How has your daughter changed?

       A: She’s grown up from an infant to a beautiful, smart, lovely seven-year-old girl.
          She’s proved herself to be social, a gymnast, a cheerleader, smart in school.
          Academically, she’s very, very bright. She’s basically grown up from an infant
          to a young child with extraordinary potential.

                                                 11
       Q: And has she—at the time that she was 14 months old and you entered into this
          agreed divorce decree, did you have any idea for sure how she was going to turn
          out?

       A: No.

            ....

       Q: And did you come to a—what about your daughter, did you have idea how smart
          she was going to be?

       A: No. I had hoped, but I didn’t know.


Michels acknowledged that her daughter was doing very well at Bryker Woods.

               Much of the testimony adduced by Michels centered on St. Andrew’s reputation as

a high achieving school and the desirability of a child remaining in a single school through high

school as she would be able to do at St. Andrew’s. Michels’s partner in her medical group testified

that he served on the St. Andrew’s board of trustees, that his children attended St. Andrew’s, that

the school sets a high academic standard and provides a diverse culture respectful of various

religions, and that he is familiar with A.A. but has not “seen [her] in years, but I know who she is.”

               Education consultant Christopher Kocerik testified that he was first contacted by

Michels on July 8, 2004. Michels advised him that “she had identified a school that she thought was

best, and wanted me to concur if—or give my opinion on as to whether or not that was the best

school for her.” Michels told Kocerik that a “custody” matter was involved and that he might be

called upon to testify. Kocerik did not investigate other schools or make a recommendation

regarding schools. He testified, “She asked us to look at her daughter’s needs, and look at the option




                                                 12
of St. Andrew’s.” Kocerik concluded that St. Andrew’s would be a “good match” and a “good

opportunity” for A.A.

                The lawyer who represented Michels in her divorce also testified on her behalf. She

had observed A.A. since the divorce and testified that “she’s grown up, she’s become a lot more

articulate and it is striking how bright she is.” She also testified to the benefits of private school over

public school. Lucy Nazro, the head of St. Andrew’s, testified that, based upon A.A.’s test scores,

she would do well at St. Andrew’s. She explained that the school offers continuity through high

school to its students as well as other opportunities not offered by the public schools such as public

service opportunities, foreign languages, and ethics courses. Dr. Nazro testified that she had a

telephone conversation with Zeifman in which they discussed the academics of the school and he

inquired into the religious life of the school, particularly the practice of daily chapel.

                Zeifman testified that he lives across the street from Bryker Woods and has remarried.

Because he lives so close, he drops by the school once or twice a week and “bump[s] into the

principal fairly often.” He testified to his son’s learning disability and that he and Michels agreed

to deviate from the agreement to meet their son’s special educational needs. Zeifman testified that

A.A.’s academic and social needs were being met at Bryker Woods and that she was thriving there.

When Michels rejected his suggestion that A.A. attend the Austin Jewish Academy and applied

instead to St. Andrew’s without his knowledge or consent, Zeifman insisted upon following the

decree and having A.A. continue her education at Bryker Woods. He testified that the academics

of the schools was never an issue: “You know, we’re in a very good public school, and my daughter,




                                                    13
as evidenced by all the results that have been admitted, has been pretty well served by whatever

we’re doing.”

                Casey Herrin, A.A.’s first-grade teacher testified that she had taught first grade at

Bryker Woods for five years and that A.A. had been in her class. Herrin described A.A. as a “very

pleasant, very bright” “typical first grader.” She was among the top students in the class but had not

been accepted for the gifted and talented program. Herrin testified that both parents were involved

and concerned about their daughter’s academic progress: “They both did make sure to frequently

check with me to make sure she was progressing as she should be.” A.A.’s stepmother was also

involved at the school.

                At Michels’s request, Herrin had completed the recommendation form that

accompanied A.A.’s application for admission to St. Andrew’s. At the time of its submission, Herrin

learned that Zeifman was not aware that Michels had asked her to fill out the recommendation. She

knew that Michels was interested in sending her daughter to St. Andrew’s: “And I felt like,

obviously, this was something that her parents were going to decide, and that it was my obligation

as her former teacher to go ahead and fill this out for her.” Over the summer, probably in June,

Michels asked for her assistance in helping the parents decide which school A.A. should attend.

Herrin testified,


        I told her that I’d have to think about it and get back to her. And when I eventually
        got back to her, I informed her that I thought it would be best if [she] stayed at Bryker
        Woods. . . . I felt like at one point both parents, obviously, agreed that Bryker Woods
        was a good school for [her]. And so I thought best just leave it alone. . . . I didn’t
        feel like there was any strong need that wasn’t being met at Bryker Woods.




                                                   14
Herrin testified that she told Michels that “I thought it would be best if A.A. stayed at Bryker

Woods.” They had no further conversations. In response to cross examination, Herrin testified that

Zeifman expressed concerns to her that he thought Bryker Woods was a good school for his daughter

and he had some concerns that St. Andrew’s was a religiously affiliated school.

                A Bryker Woods counselor and the principal also testified to the suitability of the

school for A.A.’s needs and its standing in the academic community. The counselor testified that

A.A.’s needs were “absolutely” met at the school and that her current second grade teacher was “one

of the most highly professional teachers I’ve ever worked with.” The principal testified that the

school is a “wonderful little school” that is unique because it is a school of choice for half of its 378

enrolled students. The school was generally rated “exemplary” in its academic ranking by the Texas

Educational Association but had dropped to “recognized” in the 2003/2004 year. He attributed the

change to the addition of the science portion of the test. All of the other test scores had been in the

exemplary range over the cut-off score of ninety percent. He testified that the school is a well-

regarded school with extensive parental involvement and small class sizes. He knows most of the

students by name and is familiar with A.A. He testified that she “seems like a great child” who gets

along well with other students. He testified,


        I feel that [she] is doing a fine job, you know, in second grade. I think that she has
        a wonderful classroom teacher, very caring classroom teacher, and a very
        experienced teacher. That’s the other good thing that I will like to share also about
        Bryker Woods is we have very little teacher turnover. The teachers who have been
        there have been there for many, many years. . . . [I]t’s a wonderful environment. It’s
        a small school . . . a great place.




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At the conclusion of the trial, the trial judge told the parties that she was “puzzled to have such an

issue brought before this Court” and that she had “struggled listening to the testimony” that “veered

off course in some ways” from the issues, stating,


        I became extremely frustrated with the concept that I’m supposed to decide that St.
        Andrew’s is better than the AISD school system for your child. Even if I accept that
        St. Andrew’s is a premier school and better than AISD, is that really the issue?
        Because it really isn’t about whether Harvard is better than UT. It really is about
        where the child will actually flourish. And I’m not sure I understand or know that
        answer. And I struggled all last evening with what my role was today. Am I
        supposed to tell you your child will be more successful at St. Andrew’s, or your child
        will be more successful in the AISD School District.


Legal Sufficiency of the Evidence

               The issue is whether the trial court’s determination that there was a material and

substantial change in circumstances was an abuse of discretion. Based on the evidence, we conclude

that it was.

               A court’s determination as to whether a material and substantial change of

circumstances has occurred is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d

772, 779 (Tex. App.—Fort Worth 2003, no pet.). Evidence of a parent’s subsequent marriage to

another can constitute a relevant, material change of circumstances after rendition of the decree

sought to be modified. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.—Waco 2000, pet. denied).

Likewise, change in the age of a child may constitute a material change. In re Davis, 30 S.W.3d 609,

615 (Tex. App.—Texarkana 2000, no pet.); see also Horne v. Hardwell, 533 S.W.2d 450, 452 (Tex.

Civ. App.—Austin 1976, writ ref’d n.r.e.). Increase in age alone is not a changed circumstance to

justify modification unless changed needs are shown. E.g., Voros v. Turnage, 856 S.W.2d 759, 762

                                                 16
(Tex. App.—Houston [1st Dist.] 1993, writ denied); Randle v. Randle, 700 S.W.2d 314, 316-17

(Tex. App.—Houston [1st Dist.] 1985, no writ).

               In any event, the cases finding a material change based on a change in the age of a

child are distinguishable from this case. None of the cases in which a court found the change in the

age of a child to support a modification included a negotiated agreement that specifically

contemplated the change and provided a dispute resolution mechanism as in this case. To allow

aging alone to constitute a material and substantial change in the face of the agreement would render

both the agreement and the language of the statute meaningless.

               Although courts have allowed changes to be proved in a variety of ways, they have

consistently required that a change be proved and that it be shown to be substantial and material.

See, e.g., Agraz, 143 S.W.3d at 554 (evidence that father not participating in raising children

insufficient to show prior conditions or material change); London v. London, 94 S.W.3d 139, 144

(Tex. App.—Houston [14th Dist.] 2002, no pet.) (court compared financial circumstances of the

affected parties at time of original order with circumstances at time modification sought finding

changed circumstances); Echols, 85 S.W.3d at 479 (court found changed circumstances included

aging of child, remarriages and additional children in both families); Considine, 726 S.W.2d at 255

(re-marriage by one party and relocation to Canada held insufficient). In Considine, this Court stated

that “to prove that a material change of circumstances has occurred, the movant must demonstrate

what conditions existed at the time of the entry of the prior order. Once such conditions have been

established, the movant must show what material changes have occurred in the intervening period.”




                                                 17
726 S.W.2d at 255.1 In that case, we concluded that a parent’s remarriage and change of residence

to Canada did not constitute a material and substantial change as to support the modification of

conservatorship. Id.

               Zeifman contends that there was no showing that the circumstances with respect to

A.A.’s education have materially and substantially changed. We agree.

               A.A. was an infant when the parties divorced and in second grade when the case was

tried in October 2004. The change alleged in the petition was her application and admission to St.

Andrew’s. At trial, in response to specific questioning as to the change in circumstances, Michels

testified only that the change was that A.A. had grown from an infant into a “beautiful, smart,

lovely” seven-year-old and that her academic ability had surpassed Michels’s expectations at the

time of the divorce. At the time of the divorce, the parties entered into a negotiated agreement that

their children would attend certain schools. They further agreed that if they were unable to agree on

educational decisions, they would follow the recommendations of the teacher of the child at issue.

Thus, the agreement contemplated that the child would age, specified the schools agreed upon and

even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise.




       1
          For the trial court to determine if a material and substantial change has occurred, most
courts require a comparison between the original circumstances of the child and the affected parties
at the time the existing order was entered with their circumstances at the time the modification is
sought. E.g., London v. London, 94 S.W.3d 139, 144 (Tex. App.—Houston [14th Dist.] 2002, no
pet.). Thus, the record must contain both historical and current evidence of the relevant
circumstances. Without both sets of data, the court has nothing to compare and cannot determine
whether a change has occurred. Id. at 144-45.


                                                 18
When a disagreement arose in the instance of their son’s special educational needs, the parties

resolved the change pursuant to the terms of the agreement.

               The evidence showed that after the parties divorced they continued to raise A.A. in

the Jewish faith and they continue to adhere to that faith. A.A. attends religious school at

Congregation Agudas Achim and pursues other activities and camps sponsored by the Jewish

Community Center. The parties agree she is being raised Jewish and is part of the Jewish

community, as she has been since she was born. The modification sought specifically to allow

Michels to send A.A. to St. Andrew’s would mark a significant change in the child’s secular and

religious education. That Zeifman objected to A.A. attending a religious private school based upon

a different faith is consistent with the parties’ intent to specify these educational decisions in their

agreement to anticipate and avoid such conflicts.

               The evidence showed that A.A. is a bright and academically talented girl who is

thriving at Bryker Woods, a school located across the street from her father’s home. The undisputed

evidence also showed that she did very well academically and socially at Bryker Woods, and that her

academic and social needs were being met. The only evidence that she might do better at St.

Andrew’s or that it might be more “suitable” is speculative and, in any event, not sufficient to

constitute a material and substantial change.

               We do not agree that this evidence shows a change in circumstances as contemplated

by section 156.101. See Tex. Fam. Code Ann. § 156.101. To accept Michels’s interpretation of the

requirement of a “material and substantial” change would render its language meaningless if age

alone were sufficient in light of the parties’ prior agreement. Although there may be a variety of



                                                  19
methods of showing material and substantial change, the requirement is that a change must be

shown. We conclude Michels’s evidence is no evidence of a change in conditions. Even assuming

that the St. Andrew’s application and admission or A.A.’s change of age constituted changes not

contemplated by the agreement, there was no evidence that either change was material or substantial.

               Moreover, as in all suits regarding the conservatorship of a child, the court’s primary

consideration “shall always be the best interest of the child.” Tex. Fam. Code Ann. § 153.002; In

re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). A court may use the nonexhaustive list of Holley factors

to determine the child’s best interest. Holley v. Adams, 554 S.W.2d 367, 371-71 (Tex. 1976). Those

factors include the desires of the child, the emotional and physical needs of the child now and in the

future, the emotional and physical danger to the child now and in the future, the parental abilities of

the individuals seeking custody, the programs available to assist these individuals to promote the best

interest of the child, the plans for the child, the stability of the home, the acts or omissions of the

parent, which may indicate that the existing parent-child relationship is not a proper one, and any

excuse for the acts or omissions of the parent. Id. at 371-72. In the context of custody modification,

other factors to be considered include the child’s need for stability and the need to prevent constant

litigation in child-custody cases. V.L.K., 24 S.W.3d at 343.

               The policy behind the requirement of a material and substantial change is to prevent

constant relitigation with respect to children. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.—Fort

Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex. Civ. App.—Dallas 1978, writ ref’d

n.r.e.) (requirement of material and substantial change predicated upon doctrine of res judicata as

to best interest of child at time of original decree awarding conservatorship). When establishing the



                                                  20
means to modify custody orders, the legislature established a system that attempts to create stability

in the conservatorship. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.—Houston [1st

Dist.] 1997, pet. denied). Thus, the party seeking modification bears the burden of demonstrating

a material and substantial change in circumstances since the original decree. Bates, 81 S.W.3d at

423. The requirement of this showing “serves a valid purpose of significantly limiting the trial

judge’s discretion and prevents the modification statute from being unconstitutionally broad.”

M.N.G., 113 S.W.3d at 34.

                Although the trial court heard contradictory testimony about events that had occurred

between the parties, the undisputed evidence established that A.A. was thriving at Bryker Woods

under the educational plan agreed to in the divorce decree. Much of the testimony focused on the

relative academic standing of the two schools as well as the advantages of a private school over a

public school. Michels acknowledged that A.A. was doing very well at Bryker Woods and that she

would not be harmed by staying at Bryker Woods.                 A.A.’s teacher, who provided the

recommendation for her admission to St. Andrew’s, testified that she believed that it would be in

A.A.’s best interest to stay at Bryker Woods. There was no expert testimony or other evidence that

the change in schools would be in A.A.’s best interest. Because A.A. was making good grades and

thriving at Bryker Woods, and there was no evidence to show that it was in her best interest to

change schools, a review of the record does not establish that the evidence is sufficient to support

the trial court’s findings.

                At the time of their divorce, the parties chose to send their children to public schools

unless they agreed otherwise. They also correctly anticipated that they might disagree about



                                                  21
educational decisions concerning the children in the future and included an agreed mechanism in the

decree for resolving any such disagreements.

               We would be remiss if we did not observe that, with the passage of the Texas

Alternative Dispute Resolution Act, it became public policy to “encourage the peaceable resolution

of disputes, with special consideration given to disputes involving the parent-child relationship,

including the mediation of issues involving conservatorship, possession, and support of children, and

the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac.

& Rem. Code Ann. § 154.002 (West 2005). It would undermine the efforts of mediated settlement

agreements for us to allow a modification on circumstances that were clearly contemplated by the

parties at the time of the rendition of the original divorce decree. We also observe, however, that

the existence of a mediated settlement agreement does not alter the requirements of section 156.101;

we hold only that, on the record before us, the petitioner failed to carry her burden of demonstrating

a material and substantial change of circumstances and that the modification would be in the best

interest of the child. See Tex. Fam. Code Ann. § 156.101.2


                                          CONCLUSION

               We conclude that the evidence is legally insufficient to support the trial court’s

finding that the circumstances of the child, as specifically alleged in the petition, or of either

conservator have materially and substantially changed. We hold that, based on the record before us,

the trial court abused its discretion in ordering modification. We sustain appellant’s challenge to the


       2
          Because of our disposition of the legal sufficiency issue, we need not address the remaining
issues regarding factual sufficiency.

                                                  22
legal sufficiency of the modification. We reverse the trial court’s order to modify and render

judgment in favor of Zeifman.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton: Opinion by Justice Patterson;
    Concurring Opinion by Justice Pemberton

Reversed and Rendered

Filed: August 4, 2006




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