                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-238-CV


IN THE INTEREST OF T.L.S. AND
R.T.S., CHILDREN


                                    ------------

           FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      This appeal concerns a motion to modify the parent-child relationship

between Appellant Barbara,2 Appellee Philip, and their two children from their

prior marriage—T.L.S. and R.T.S. In her first, second, and third issues, Barbara

appeals the trial court’s modification of a geographical restriction contained in

      1
          … See Tex. R. App. P. 47.4.
      2
       … To protect the privacy of the parties involved in this appeal, we
identify the children by initials only and Appellant and Appellee by their first
names only. See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008).
the parties’ agreed divorce decree.     In her fourth and fifth issues, Barbara

appeals the trial court’s award of attorney’s fees to Philip. We reverse and

render in part and reverse and remand in part.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Barbara and Philip divorced in August 2004. The parties agreed in their

divorce decree that Barbara, as the custodial joint managing conservator for

their two children, would have the right to establish the primary residence for

the children “within [a] 30 mile radius of Mansfield, Tarrant County, Texas.”

Allegedly, in March 2007, Philip learned that Barbara intended to violate the

geographical restriction and relocate herself and the two children to Richardson,

Texas. Philip alleges that T.L.S.’s friend told him that Barbara intended to move

outside the geographical restriction so that their daughter could play on a

different softball team.

      Philip filed an emergency motion to modify the parent-child relationship

and request for temporary restraining order on March 30, 2007. Barbara, in her

response, alleged that she had not “at this time” made any arrangements to

relocate her primary residence.

      On May 8, 2007, Barbara filed a motion to clarify the geographical

restriction. She requested that the trial court find that the thirty-mile radius be

measured from any point fixed within the city limits of Mansfield, ostensibly so

                                        2
that she could in fact move to areas within Richardson, Texas, without violating

the agreed to geographical area. The trial court held a hearing and ultimately

issued temporary orders restricting Barbara from moving the two children’s

primary residence from Mansfield.

      Barbara also filed her own motion to modify asking the trial court to

modify and extend the geographical restriction to allow her the right to establish

the children’s primary residence to include Tarrant and contiguous counties.

Ultimately, Barbara proposed a parenting plan that asked the court to either

extend the geographical restriction to include Tarrant and contiguous counties,

or in the alternative, to leave the current thirty-mile restriction in place. The

trial court held a hearing concerning the cross-motions to modify on February

1, 2008.

      The trial court had previously appointed Donna Kelly-Powell to counsel the

parties and their children. The court ordered that all parties attend a minimum

of five sessions.

      At the February 1 hearing, Kelly-Powell testified that she saw the children

in individual sessions and saw Barbara and Philip in one individual session each.

Kelly-Powell said she then saw Barbara and Philip in one joint session. Kelly-

Powell stated that Barbara cancelled all future joint sessions alleging that, “I just

didn’t feel like that we accomplished anything.” Kelly-Powell continued to see

                                         3
the two children individually, and would discuss the children’s progress with

either Barbara or Philip, depending on who brought them.               Kelly-Powell

eventually began to see R.T.S. more frequently than T.L.S. because, according

to Kelly-Powell, “he was the one who was having more difficulty.” Kelly-Powell

began to believe that R.T.S. might be suffering from a variety of problems

including:    problems   adapting   to       new   situations,   moderate   anxiety,

inattentiveness, and mild to moderate problems associated with social and

study skills. Kelly-Powell eventually recommended that R.T.S. see psychologist

Dr. Daniel Lowrance.

      Lowrance testified that although Kelly-Powell had wanted testing

regarding whether R.T.S. had attention-deficit hyperactivity disorder, bipolar

disorder, and other problems, his diagnosis was that R.T.S. actually suffered

from “agitated depression” that was situational and mostly due to his

relationship with his father and having to live in a two-bedroom apartment

where he was constantly in “close proximity to his sister.”

      Both Barbara and Philip testified about why they believed that the

geographical restriction should be changed. Philip testified that he wanted the

geographical restriction to constrict to include only Mansfield,3 while Barbara



      3
       … Although Philip testified that he wanted the geographical restriction
constricted to include only Mansfield, in his first amended motion to modify the

                                         4
testified that although due to work and school she preferred the geographical

restriction to expand, she was fine with what the parties had originally agreed

to. At the close of the hearing, the trial court ordered that Barbara move into

a three-bedroom residence within thirty days and constricted the geographical

area so that Barbara could only establish the children’s primary residence to be

located within “Mansfield or the Arlington ISD.” Per Barbara’s request, the trial

court issued findings of fact and conclusions of law. The trial court specifically

found that “[it] is in the best interest of the children that [Barbara] have the

exclusive right to designate that the children’s primary residence [be] within the

geographical area of the Mansfield ISD or Arlington ISD.” This appeal followed.

                                 III. D ISCUSSION

      A.    Modification of Previous Conservatorship Order

      In her first, second, and third issues, Barbara argues that the trial court

abused its discretion in finding a material and substantial change in

circumstances to warrant modification of the residence restriction. We agree.




parent-child relationship, Philip requested that the court modify the geographical
restriction be limited to “Mansfield or the Arlington Independent School
District.”

                                        5
            1.     Standard of Review

      We review a trial court’s order modifying conservatorship under an abuse

of discretion standard. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort

Worth 2002, pet. denied); see Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982).     The trial court abuses its discretion if it acts arbitrarily and

unreasonably or without reference to any guiding principles.           Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert.

denied, 476 U.S. 1159, 106 S. Ct. 2279 (1986). Legal and factual sufficiency

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

determining whether the trial court abused its discretion.       In re T.D.C., 91

S.W.3d at 872; In re Marriage of Bertram, 981 S.W.2d 820, 822 (Tex.

App.—Texarkana 1998, no pet.).

      In determining whether the trial court abused its discretion in modifying

conservatorship, we apply a two-pronged test: (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. In re T.D.C., 91 S.W.3d at 872.

That is, first we determine whether the evidence was legally and factually

sufficient for the trial court to support a decision on modification and, second,

whether the decision made was reasonable. Id. A clear failure by the trial

court to analyze or apply the law to the facts correctly is an abuse of discretion.

                                        6
In re M.N.G., 113 S.W.3d 27, 32 (Tex. App.—Fort Worth 2003, no pet.); see

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

      In conducting a legal sufficiency, or “no evidence” review, we consider

the evidence in the light most favorable to the trial court’s judgment,

disregarding all evidence and inferences to the contrary unless a reasonable

factfinder could not do so. City of Keller v. Wilson, 168 S.W.3d 802, 810–11

(Tex. 2005). We do not disregard contrary evidence if (a) there is no favorable

evidence, or (b) contrary evidence renders supporting evidence incompetent, or

(c) contrary evidence conclusively establishes the opposite. City of Keller, 168

S.W.3d at 810–11. Anything more than a scintilla of probative evidence is

legally sufficient to support the trial court’s finding. In re T.D.C., 91 S.W.3d

at 872.

      In determining whether the evidence was factually sufficient to support

the trial court’s judgment, we review the trial court’s findings under the same

standards used in reviewing jury answers. In re Z.B.P. & J.N.P., 109 S.W.3d

772, 776–77 (Tex. App.—Fort Worth 2003, no pet.). We consider all the

evidence and set aside the findings only if we find that they are so contrary to

the overwhelming weight of the evidence as to be clearly wrong and manifestly

unjust. Id.; see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).




                                       7
             2.    Material and Substantial Change

      In an effort to ensure stability and continuity for children, Texas law has

imposed “significant hurdles” before a conservatorship order may be modified.

Bates v. Tesar, 81 S.W.3d 411, 426 (Tex. App.—El Paso 2002, no pet.).

Specifically, a trial court may modify a conservatorship order only if “the

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

have materially and substantially changed” since the previous order and

modification would be in the child’s best interest.         Tex. Fam. Code Ann.

§ 156.101 (Vernon 2008).

      Under this scheme, the threshold question is whether a material and

substantial change of circumstances has occurred because the original decree

is res judicata of the children’s best interest. Watts v. Watts, 563 S.W.2d 314,

316 (Tex. Civ. App.—Dallas 1978, writ ref’d n.r.e.). Absent a material and

substantial change of circumstances, revisiting the prior determination of best

interest is inappropriate. In re M.N.G., 113 S.W.3d at 34. The burden is on

the moving party to show a material and substantial change in circumstances;

otherwise, the trial court must deny the motion. See Zeifman v. Michels, 212

S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied).

      In deciding the material and substantial change of circumstances

question, a trial court is not confined to rigid or definite guidelines. In re Z.B.P.,

                                          8
109 S.W.3d at 779. Instead, the court’s determination is fact-specific and

must be made according to the circumstances as they arise. Zeifman, 212

S.W.3d at 593. But, by design, the evidence must show more than a simple

showing that a requested modification would be in the children’s best interest.

See Tex. Fam. Code Ann. § 156.101(1).

            3.    Evidence of Changed Circumstances

      In this case, there are two distinct categories of evidence on which the

trial court could have relied to determine whether there had been a material and

substantial change: (1) the evidence of Barbara’s desire to move to Richardson,

and (2) the evidence of R.T.S.’s psychological condition.

                  a.    Barbara’s Desire to Move

      At the modification hearing, Philip testified that Barbara had relayed to

him that it was her intention to move as close to Richardson as she could under

the original divorce decree’s thirty-mile radius provision.   Philip said that if

Barbara moved to the outer boundary of that restriction, his midweek visitations

would probably “become a traffic impossibility.” Philip further averred that he

had “trust issues” with Barbara regarding where she might move the children

within the thirty-mile restriction. He also testified that he would “like to know

exactly where” Barbara intended to move the children and that it was his

preference that the children stay “where they [would] be close to their father.”

                                       9
      None of this testimony by Philip is evidence of a change of

circumstances.     Philip may not have appreciated the difficulty he would

encounter by agreeing to the original geographical restriction, but that difficulty

would not be due to anything that happened after the divorce decree. The

possibility that Barbara would move to the outer boundary of the thirty-mile

restriction was contemplated at the time of the original agreement. None of

Philip’s testimony regarding possible difficulties in traveling within the thirty-

mile restriction could serve as sufficient evidence on which the trial court could

have exercised its discretion.

      Other evidence of a potential change of circumstances in the record is the

allegation that Barbara intended to move to Richardson beyond the thirty-mile

radius. But the record clearly demonstrates that when Barbara did move, she

moved from her home in Mansfield to a two-bedroom apartment—in Mansfield.

Both of these locations were within the thirty-mile restriction. This testimony

also cannot serve as sufficient evidence on which the trial court could have

exercised its discretion.

      Still regarding Barbara’s attempts to move, the only other evidence in the

record that would suggest that circumstances had changed was the testimony

of Kelly-Powell—the court-appointed counselor—who testified that she believed

R.T.S. would benefit from staying within the Mansfield ISD, more specifically

                                        10
in his current school. But this testimony, admittedly, was predicated on the

same perceived difficulties Philip testified to—that Barbara moving outside of

Mansfield “would [move the children] further away, that it would be more

difficult for [Philip] to be able to see them as often, and he would not be able

to be as involved in their lives.”

      The trial court was obviously swayed by the testimony concerning the

difficulties Philip would face in traveling to the outer boundary of the original

thirty-mile restriction. The trial court stated that its decision to constrict the

original geographical restriction was because “a commute [of thirty miles] . . .

would interfere with [Philip’s] ability to have a relationship with his children.”

But the ultimate restriction imposed by the trial court was inconsistent with the

counselor’s request that R.T.S. be restricted to living in Mansfield. The trial

court’s imposed restriction was that the children not be moved from Mansfield

or Arlington. This is the exact restriction requested by Philip in his motion to

modify.

      Thus, if the modification to the geographical restraint was predicated on

Kelly-Powell’s or Philip’s testimony regarding the difficulties encountered

traveling within the original agreed-to area, the trial court erred in exercising its

discretion.   And if the modification was predicated on the counselor’s

testimony, the trial court arbitrarily conformed the restriction to Philip’s request,

                                         11
rather than Kelly-Powell’s testimony. Either way, based on this evidence, the

trial court acted arbitrarily and unreasonably and abused its discretion in

modifying the original geographical restriction.

                  b.     Evidence of R.T.S.’s Emotional Problems

      There is some evidence in the record that R.T.S. was experiencing

emotional difficulties, including anger toward his father and sister. Kelly-Powell

testified that R.T.S. would have difficulty changing to “another school . . .

because of his emotion and social difficulties.” [emphasis added] Kelly-Powell

attributed R.T.S.’s difficulties to having been “put in the center” of the

parents’s struggles. Kelly-Powell also testified that she had referred the parties

to a psychologist—Dr. Lowrance.

      Lowrance testified that R.T.S.’s difficulties were “situational” and

stemmed mostly from R.T.S. having to live in a two-bedroom apartment where

he shared “one room for all of [his and his sister’s] things.” Lowrence testified

that there was nothing to indicate that R.T.S.’s difficulties required any special

care that R.T.S. could not receive from another school district of comparable

size to Mansfield.     When asked if R.T.S. would have difficulty changing

schools, Lowrence stated, “[n]one that I’m aware of.” Lowrence also testified

that R.T.S. had expressed to him that he preferred to move to a different

school. When asked whether it was relevant that R.T.S. lived in “Mansfield . . .

                                       12
[or Fort] Worth . . . [or] Keller,” Lowrence replied, “It’s not the building that’s

causing the problem.” Ultimately, Lowrence testified that what would be most

helpful to R.T.S. would be “if [his] mother got where [R.T.S.] had his own

facility, his own room and some space.”

      Assuming that the trial judge disregarded all of Lowrence’s testimony and

believed only Kelly-Powell, the modified geographical restriction is still

inconsistent with Kelly-Powell’s testimony, which recommended leaving R.T.S.

in his current school. The trial court’s ultimate restriction was that the children

not be moved from Mansfield or Arlington. Again, this is the exact restriction

requested by Philip. But the trial court was obviously swayed by Lowrence’s

testimony. The trial court imposed an order on Barbara that she “get a three-

bedroom where each child has their own room within 30 days.” The trial court

even chided Barbara for having moved to a “cramped apartment” and stated

that R.T.S.’s anger toward Philip was Barbara’s “fault” for not currently living

in a three-bedroom apartment.

      The trial court determined, in its findings of fact, that it would be in the

best interest of the children to modify the previous geographical restriction by

constricting Barbara’s right to designate the children’s primary residence to

Mansfield ISD or Arlington ISD. There is simply no evidence to support this

modification. Thus, the trial court should not have exercised its discretion, and

                                        13
if it should have, it acted arbitrarily and unreasonably and abused its discretion

in modifying the original geographical restriction. We hold that the trial court

abused its discretion in modifying the original divorce decree’s geographical

restriction and sustain Barbara’s first, second, and third issues.

      B.    Attorney’s Fees

            1.    Attorney’s Fees for Appeal

      In her fourth issue, Barbara asserts that there was no evidence concerning

attorney’s fees in case of an appeal to this court. Thus, Barbara argues, the

trial court abused its discretion in awarding them. We agree.

      All of the evidence presented to the trial court concerning attorney’s fees

specifically concerned the time involved in preparation for the hearing on the

motion to modify.     No evidence was presented regarding the amount of

attorney’s fees on appeal.     Thus, the trial court abused its discretion by

awarding attorney’s fees to Philip for this appeal.          See MacCallum v.

MacCallum, 801 S.W.2d 579, 587 (Tex. App.—Corpus Christi 1990, writ

denied) (holding that former wife was not entitled to attorney’s fees on former

husband’s appeal of his action seeking modification of child support and

visitation, where all evidence related to attorney’s fees specifically concerned

time involved in preparation for hearing on motion to modify, and no evidence




                                       14
was presented regarding amount of attorney’s fees on appeal). We sustain

Barbara’s fourth issue.

            2.    Attorney’s Fees Incurred Preparing for the Modification

      In her fifth issue, Barbara argues that the trial court abused its discretion

by not showing good cause to award Philip attorney’s fees for the underlying

modification action.      Because Barbara is the prevailing party on appeal

respecting the modification of the geographical restriction, we need not address

her fifth issue. See In re C.C.J., 244 S.W.3d 911, 924 (Tex. App.—Dallas

2008, no pet.).    Rather, we remand the issue of attorney’s fees for the

underlying modification action to the trial court. Id.

                                IV. C ONCLUSION

      Having sustained Barbara’s first, second, third, and fourth issues, we

reverse the portion of the trial court’s order granting modification of the

geographical restriction and render judgment that Philip’s proposed modification

of the geographical restriction is denied, and we reverse and render regarding

the trial court’s awarding to Philip attorney’s fees for appeal. Additionally, we

reverse the portion of the trial court’s order awarding the attorney’s fees




                                       15
pertaining to preparation of the modification to Philip and remand that issue to

the trial court for reconsideration in light of this opinion.




                                             WILLIAM BRIGHAM
                                             JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: April 9, 2009




                                        16
