                                NUMBER 13-10-413-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

        IN THE INTEREST OF R.R.S. AND S.A.S., MINOR CHILDREN


                        On appeal from the 19th District Court
                            of McLennan County, Texas.


                              MEMORANDUM OPINION
                   Before Justices Rodriguez, Vela, and Perkes
                      Memorandum Opinion by Justice Vela
        This is an appeal from an order issued by the 19th District Court of McLennan

County in a suit to modify the parent-child relationship.1 The order of the trial court

modified the visitation schedule of appellee, M.H., the father of S.A.S and R.R.S. 2

Appellant, the child’s mother, raises four issues on appeal, claiming that the trial court

        1
          This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
        2
          R.R.S. turned eighteen years old during this proceeding. The parties have agreed that the case
is moot with respect to R.R.S., and we will not address any issues with respect to her.
abused its discretion by:      (1) finding that a material and substantial change in

circumstances necessitated a change in the father’s possession order; (2) setting a

visitation schedule without evidence that the schedule was in the child’s best interest; (3)

restricting the residence of the child to McLennan County because there was no evidence

or insufficient evidence that such a restriction was in the child’s best interest; and (4)

failing to allow the parties to withdraw a stipulation based on mutual mistake. We affirm,

in part, and reverse and remand, in part.

                                     I. BACKGROUND

       This appeal is based on an April 22, 2010 trial court order modifying the periods of

possession that appellant has with S.A.S., his daughter, who was nine years old at the

time of the hearing. Possession was set in accordance with section 153.251 of the

Texas Family Code with alterations from the standard possession order made to

accommodate the father’s work schedule. See TEX. FAM. CODE ANN. § 153.251 (West

2008). It was undisputed that appellee has an unusual work schedule; sometimes he

works a thirty-five day shift and sometimes he is on a twenty-eight day shift.

       The couple divorced in Midland County in 2005. Later, appellant moved with the

children to McLennan County. From 2008 until 2010, the parties filed various motions

and counter-motions in McLennan County seeking to modify the possession order signed

in Midland in 2005. Four hearings occurred between January 2010 and April 22, 2010.

Some of the issues discussed at those hearings involved child support, which are not

relevant here because those issues were not appealed. During one of the hearings,

counsel for both parties met with the trial court in chambers. After the conference, the


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issues before the court were reduced to discussions concerning appellee's possession of

and access to S.A.S. At hearings on April 13 and 22, both parties presented proposed

orders regarding possession of S.A.S. The trial court ultimately adopted appellant’s

proposed order, with some modifications.         Appellant did not attempt to introduce

evidence, and neither party objected to the absence of testimony at those hearings.

Both parties conversed with the trial court during the hearing on the motion to modify.

The record is quite clear that the only controversy between the parties at that time was the

content of the possession order.

       After ruling, the trial court filed numerous findings of fact and conclusions of law.

For instance, the trial court found that the periods for possession needed to vary from the

standard possession order because the father resides and works in Midland and S.A.S.

lives in McLennan County. The trial court noted that appellee maintains an apartment in

Waco for purposes of visiting with his child. The court found that it was in the best

interest of the child for appellee to be allowed possession for the same number of days as

contemplated by the standard possession order. Also, the court determined that the

material changes in circumstances, warranting a modification of possession, were that

the mother and child had moved from Midland to McLennan County, the child is now

home-schooled, and the standard order for possession is unworkable because of the

father’s rotating work schedule and the distance involved in exercising periods of

possession.




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                                       II. STANDARD OF REVIEW

         A trial court has broad discretion to decide the best interest of a child in family law

matters such as custody, visitation, and possession, and we review a decision to modify

possession for a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1991); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses

its discretion if it acts arbitrarily or unreasonably or without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.

1985).

                                            III. DISCUSSION

         By appellant’s first three issues, she argues that the trial court abused its discretion

in finding a material and substantial change in circumstances, setting a visitation

schedule without evidence that it was in the child’s best interest, and restricting the

residence of S.A.S. to McLennan County.

A. The Statute

         With respect to modification of possession or access, section 156.101 of the Texas

Family Code provides:

         a) The court may modify an order that provides for the appointment of a
            conservator of a child, that provides the terms and conditions of
            conservatorship, or that provides for the possession of or access to a child if
            modification would be in the best interest of the child and:

            (1) the circumstances of the child, a conservator, or other party affected
                by the order have materially and substantially changed since the
                earlier of:

                (A) the date of the rendition of the order; or

                (B) the date of the signing of a mediated or collaborative law

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                 settlement agreement on which the order is based.

TEX. FAM. CODE ANN. § 156.101 (West Supp. 2010).

B. Material and Substantial Change

       Appellant argues that there is no evidence of a material and substantial change

since the trial court’s earlier order was signed that set forth possession and access.

The trial court found that the material or substantial changes were appellant’s move to

McLennan County while the appellee still resided in Midland, the child was now

home-schooled, and the father’s unpredictable work schedule. It was undisputed that

appellee retained an apartment in Waco, so that his visits with his daughter could occur

there, rather than in Midland. Appellee stated that he traveled several hours for these

visitations.

       Each of the facts the trial court utilized to determine a material and substantial

change were essentially undisputed. Thus, the evidence supported the trial court’s

findings of fact. Appellant argues that the trial court should have heard evidence. But

because the facts upon which the court decided the issue were not disputed, and

because appellant can point to nothing in the record showing that any of the parties were

prohibited from introducing any evidence, the trial court did not abuse its discretion.

       Appellant argues that there was no evidence offered of the factors courts have

utilized in determining if a move to another location is a material and substantial change of

circumstances, such as the distance between the parties after the move, the proximity

and safety of travel arrangements, and the nature and quality of the contact of the

non-primary conservator with the child. We find the cases cited by appellant with respect


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to whether a move is a material change in circumstance largely inapposite because here,

appellee was not trying to increase access or require the child to travel to him for

visitation.   Rather, he was attempting to reconcile his erratic work schedule and

appellant’s decision to move with the child from Midland to McLennan County with having

access to his child. Appellant also asserts out that there is no change in circumstances

that would justify a change in visitation because appellee was working the same schedule

as he had during the marriage. However, appellant fails to note the difference—the

parties no longer live in the same town, Midland.

C. Best Interest of the Child

       It is the public policy of the state to “encourage frequent contact between a child

and each parent for periods of possession that optimize the development of a close and

continuing relationship between each parent and child.” See TEX. FAM. CODE ANN. §

153.251 (West 2008). To achieve this end, the Legislature established a rebuttable

presumption that a standard possession order provides the reasonable minimum

possession of a child for a parent named as a joint managing conservator, and such order

is in the best interest of the child. See id. at § 153.252. When deviating from the

standard possession order, the trial court looks to the standard possession order

guidelines and may also consider the age, developmental status, circumstances, needs,

and best interests of the child, the circumstances of the joint managing conservators, and

any other relevant factor.     TEX. FAM. CODE ANN. § 153.256 (West 2008).             The

presumption does not apply to orders modifying possession. See Weldon v. Weldon,

968 S.W.2d 515, 517 (Tex. App.—Texarkana 1998, no pet.) (holding that terms of


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standard possession order do not apply in modification proceedings).

       Here, the trial court took into consideration the standard possession order, as well

as appellee's specific work schedule. The trial court was charged with the responsibility

to encourage frequent contact between a child and each parent for periods of possession

that optimize the development of a close and continuing relationship between each

parent and child. Id. § 153.251. We find no abuse of discretion in the trial court’s order

with respect to the best interest of S.A.S.

D. Residency in McLennan County

       By issue three, appellant urges that the trial court erred in restricting the residence

of the appellee and the child to McLennan County. Based upon the record before us, we

agree. The trial court’s order states that the primary residence of appellant and the child

is McLennan County and that the parties shall not remove the child until modified by

further order of the court of continuing jurisdiction. Appellant points out that no prior

order placed geographic restrictions on the parties. The trial court made a fact finding

that the restriction of the child to McLennan County was in the child’s best interest.

Unlike in issues one and two, however, there were no discussions on the record about a

geographical restriction. The first two issues were basically resolved on undisputed

facts. Further, there were no reasons stated in the fact findings to show why it would be

in the child’s best interest to remain in McLennan, County. While we question why

appellant would object to the geographical restriction as McLennan County, as it is her

county of residence and not appellee’s, we sustain issue three because there was no

evidence in the record to show that a geographical restriction was in S.A.S.’s best interest


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and because there is nothing in the record to show that the parties had even

contemplated this restriction as a possibility.

E. Withdrawal of the Stipulation

       By appellant’s fourth issue, she argues that the trial court abused its discretion in

not allowing the parties to withdraw a stipulation that was based upon mutual mistake.

On January 29, 2010, appellant and her attorney entered into a stipulation with appellee

and the Office of the Attorney General of Texas that there were no child support

arrearages owed by appellee prior to October 31, 2004, and child support would not have

been owed by appellee until November 1, 2004, as stated in the divorce decree. The

trial court entered an order on April 14, 2010, approving a stipulation and confirming the

support arrearages. The order confirmed that appellee was not in arrears in support as

of October 3, 2004. That order has not been appealed. On July 14, 2010, appellant

filed her notice of appeal, stating that she was appealing from an order signed April 22,

2010, and desired to appeal from all portions of the judgment. Because appellant did not

appeal from the order of April 14, 2010, she is prohibited from raising issues with respect

to that order. The April 22, 2010 order deals strictly with access and possession and

does not address support whatsoever. Thus, because the question raised by appellant

in issue four was not a part of the order from which she appealed, we have no jurisdiction

to decide the issue appellant raises. See TEX. R. APP. P. 25(b). We overrule issue four.

F. Mootness

       Appellee filed an objection with the Court urging that the entire appeal was moot

because appellant filed a petition to modify the parent-child relationship on September


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28, 2010. Appellee informed this Court that on November 9, 2010, the trial court altered

its April 22, 2010 order. Appellee included a portion of the transcription from that hearing

in his motion, however, no one has filed an order in this Court with respect to the

November 9, 2010 hearing. We requested a supplemental record from the district clerk

to determine if there was a later order that would moot this appeal. The clerk forwarded

a docket sheet to this Court. The docket sheet, however, does not reflect that an order

was signed. Thus, at this point, there is nothing in the appellate record that would

support a conclusion that the appeal was rendered moot by a later order.

                                         IV. CONCLUSION

       The order of the trial court is affirmed, except with respect to the provision

restricting appellant and the child to McLennan County, which we reverse and remand to

the trial court to delete that provision from its April 22, 2010 order. The judgment of the

trial court is affirmed, in part, and reversed and remanded, in part, in accordance with this

opinion.



                                                  ROSE VELA
                                                  Justice

Delivered and filed the
20th day of October, 2011.




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