Opinion issued June 27, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                            NO. 01-12-00668-CV
                          ———————————
                   MARJORIE CHAMPENOY, Appellant
                                     V.
                     AARON CHAMPENOY, Appellee


                     On Appeal from the 257th District
                           Harris County, Texas
                     Trial Court Case No. 2010-19801


                        MEMORANDUM OPINION

     Appellant, Marjorie Champenoy, challenges the trial court’s order

modifying a divorce decree to appoint appellee, Aaron Champenoy, sole managing
conservator of their child. 1 In four issues, Marjorie contends that the trial court

erred in (1) not determining the adequacy of facts in support of Aaron’s Petition to

Modify; (2) granting a change of custody when Aaron failed to show a change in

circumstances; (3) not making findings of fact and conclusions of law to support its

award of child support of $542 per month; and (4) denying her motion for a new

trial.

         We affirm.

                                        Background

         Marjorie and Aaron Champenoy married in 2004, had one child, and

divorced in 2010.         The divorce decree appointed Marjorie and Aaron joint

managing conservators of the child and gave Marjorie the exclusive right to

establish the child’s primary residence. Soon after Marjorie and the child moved

to Nevada in January 2011, Aaron filed a petition to modify the parent-child

relationship, alleging a material and substantial change of circumstances and the

child’s “present circumstances may significantly impair [her] physical health or

emotional development.2 Aaron sought to be appointed sole managing conservator

of the child.


1
         A motion to modify the parent-child relationship is a suit affecting the parent-child
         relationship (“SAPCR”). See TEX. FAM. CODE ANN. § 101.032(a) (Vernon 2008).
2
         See TEX. FAM. CODE ANN. § 156.102 (Vernon Supp. 2012).

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       After a hearing, the trial court granted a temporary modification of the

divorce decree.     It ordered that Marjorie and Aaron remain joint managing

conservators, but limited Marjorie’s exclusive right to designate the primary

residence of the child to Harris County, Texas. Marjorie later filed a counter-

petition to modify the parent-child relationship, alleging material and substantial

changes in circumstance and seeking appointment as sole managing conservator.

       After a bench trial, the trial court found that the material allegations in

Aaron’s petition were true and the requested modification was in the child’s best

interest.   In its final order, the trial court appointed Aaron as sole managing

conservator and Marjorie as parent possessory conservator. Marjorie requested

findings of fact and conclusions of law, and she filed a motion for new trial, which

the trial court denied.

                                   Standard of Review

       Trial courts have wide discretion regarding custody, control, possession,

support, and visitation matters involving children. Gillespie v. Gillespie, 644

S.W.2d 449, 451 (Tex. 1982); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—

Houston [1st Dist.] 1993, writ denied). We review a trial court’s decision on

custody, control, possession, and visitation matters for an abuse of discretion; and

we reverse a trial court’s order only if we determine, from reviewing the record as

a whole, that the trial court’s decision was arbitrary and unreasonable. Patterson v.


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Brist, 236 S.W.3d 238, 239–40 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d)

(citing Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.]

2001, no pet.)). We also apply the abuse of discretion standard to review a trial

court’s determination of conservatorship and denial of a motion for new trial. In re

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie, 644 S.W.2d at 451)

(determination of conservatorship); see Cliff v. Huggins, 724 S.W.2d 778, 778–79

(Tex. 1987) (denial of a motion for new trial). We view the evidence in the light

most favorable to the trial court’s decision and indulge every legal presumption in

favor of its judgment. Holley, 864 S.W.2d at 706. We will reverse only if the trial

court abused its discretion by acting without reference to any guiding rules or

principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

      Legal- and factual-insufficiency challenges are not independent grounds for

asserting error in custody determinations, but are relevant factors in determining

whether the trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749,

753 (Tex. App.—Dallas 2004, no pet.). To determine if the trial court abused its

discretion, we consider whether the trial court had sufficient evidence on which to

exercise its discretion and erred in its exercise of that discretion. In re H.N.T., 367

S.W.3d 901, 903 (Tex. App.—Dallas 2012, no pet.).             There is no abuse of

discretion if some evidence of a substantive and probative character supports the




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decision, and we will not substitute our judgment for that of the trial court. Holley,

864 S.W.2d at 706.

                            Sufficiency of Aaron’s Affidavit

      In her second issue, Marjorie argues that the trial court erred in granting

Aaron’s petition to modify because his affidavit, attached to the petition, did not

contain the allegations required for modification. See TEX. FAM. CODE ANN. §

156.102 (Vernon Supp. 2012). And she asserts that the trial court erred in not first

making a determination that the facts were adequate to support the allegations

before it conducted a hearing. See id.

      Section 156.102 provides:

      (a) If a suit seeking to modify the designation of the person having the
      exclusive right to designate the primary residence of a child is filed
      not later than one year after the earlier of the date of the rendition of
      the order or the date of the signing of a mediated or collaborative law
      settlement agreement on which the order is based, the person filing the
      suit shall execute and attach an affidavit as provided by Subsection
      (b).

      (b) The affidavit must contain, along with supporting facts, at least
      one of the following allegations:

             (1) that the child’s present environment may endanger the
             child’s physical health or significantly impair the child’s
             emotional development;

             (2) that the person who has the exclusive right to designate the
             primary residence of the child is the person seeking or
             consenting to the modification and the modification is in the
             best interest of the child; or

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            (3) that the person who has the exclusive right to designate the
            primary residence of the child has voluntarily relinquished the
            primary care and possession of the child for at least six months
            and the modification is in the best interest of the child.

      (c) The court shall deny the relief sought and refuse to schedule a
      hearing for modification under this section unless the court
      determines, on the basis of the affidavit, that facts adequate to support
      an allegation listed in Subsection (b) are stated in the affidavit. If the
      court determines that the facts stated are adequate to support an
      allegation, the court shall set a time and place for the hearing.

Id.

      An examination of Aaron’s affidavit reveals that it contained the allegations

required by 156.102(b)(1).      In the affidavit, Aaron testified to facts about

Marjorie’s multiple changes of residence and romantic partners, including two

engagements within a few months, erratic behavior, and possible dependency on

prescription drugs. Aaron then stated:

      I believe that my daughter’s present environment at her mother’s
      home may endanger her physical health or significantly impair her
      emotional development. I believe that my daughter’s physical health
      and emotional development will be impaired if my ex-wife continues
      to have the right to establish our daughter’s residence.

Thus, Aaron’s affidavit meets the statutory requirements. See TEX. FAM. CODE

ANN. § 156.102(a), (b).

      Marjorie also argues that Aaron’s affidavit is technically deficient and “not

even an affidavit” because he only claimed a “strong belief,” “perjury will not

attach to it,” and certain facts alleged by him occurred before the entry of the


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divorce decree. In support of her argument, Marjorie relies on Humphreys v.

Caldwell, 888 S.W.2d 469 (Tex. 1994). In Humphreys, the Texas Supreme Court

held that to be legally sufficient, an affidavit must positively and unqualifiedly

represent the facts as disclosed in the affidavit to be true and within the affiant’s

personal knowledge. Id. at 470. The court noted that the affiant stated that his

testimony was based on his “own personal knowledge and/or knowledge which he

has been able to acquire upon inquiry.” Id. The court explained that this statement

failed “to unequivocally show that th[e] [two affidavits] are based on personal

knowledge.”    Id.   And the affiant provided no representation that the facts

disclosed were true. Id. Here, Aaron’s affidavit is distinguishable from those in

Humphreys because Aaron unequivocally states that “[t]he facts stated in this

affidavit are within my personal knowledge and are true and correct.” Aaron used

the phrase “I strongly believe” in a general opening paragraph of his affidavit that

was followed by specific facts. Aaron swore that the facts were within his personal

knowledge and were true and correct. We conclude that Aaron’s affidavit is

legally sufficient and meets the requirements of section 156.102.

      To evaluate the sufficiency of the supporting affidavit required by section

156.102(b), the trial court was required to look at the sworn facts and determine

whether, if true, they justified a hearing on the petition to modify. In re A.L.W.,

356 S.W.3d 564, 566 (Tex. App.—Texarkana 2011, no pet.); Burkhart v. Burkhart,


                                         7
960 S.W.2d 321, 323 (Tex. App.—Houston [1st. Dist] 1997, pet. denied). Aaron

was entitled to a hearing on his motion to modify if he swore to facts adequate to

support a finding that the child’s physical health “may be endangered” or her

“emotional development significantly impaired by the present environment.” See

In re A.L.W., 356 S.W.3d at 566.

      If no affidavit is filed or if a filed affidavit is insufficient, section 156.102(c)

requires a trial court to deny a motion to modify and refuse to schedule a hearing

on its merits. See TEX. FAM. CODE ANN. §156.102(c). However, a trial court is not

required to make a specific finding on the record that the affidavit is sufficient to

warrant a hearing; and, here, the fact that the court set the hearing is, itself, proof

that it considered Aaron’s affidavit adequate. See In re A.L.W., 356 S.W.3d at

566–67; In re S.A.E., No. 06–08–00139–CV, 2009 WL 2060087 (Tex. App.—

Texarkana July 17, 2009, no pet.) (mem. op.); In re C.L.L., No. 12-06-00007- CV,

2007 WL 2045241, at *3 (Tex. App.—Tyler July 18, 2007, no pet.) (mem. op)

(trial court setting and hearing a motion to modify, constitutes proof that trial court

regarded affidavit as adequate). Even if the trial court had erroneously conducted a

hearing, any error would be harmless if the testimony admitted during the hearing

would support an allegation that the child’s environment may significantly impair

her emotional development, In re A.L.W., 356 S.W.3d at 567; In re A.C.S., 157

S.W.3d 9, 18–19 (Tex. App.—Waco 2004, no pet.).


                                           8
      We overrule Marjorie’s second issue.

              Material and Substantial Change of Circumstances

      In her first issue, Marjorie argues that the trial court erred in granting

Aaron’s request to modify custody because he “admitted” in his testimony that

there was no change in circumstance and failed to “prove” a change in

circumstance. 3 Aaron asserts in response that he presented evidence of a material

and substantial change in circumstances and this was supported by Marjorie’s

testimony. And Aaron asserts that Marjorie judicially admitted to a change in

circumstance by seeking her own modification and independently pleading that

there was a material and substantial change in circumstance.

      A trial court may modify a conservatorship order if modification would be in

the best interest of the child and the circumstances of the child, a conservator, or

other person affected by the order have materially and substantially changed since

the date of the rendition of the prior order.          See TEX. FAM. CODE ANN.


3
      Marjorie argues that in order to modify the child’s custody designation in the
      divorce decree, Aaron had to show that modification would be a “positive
      improvement for the child” in addition to a material and substantial change of
      circumstance. However, section 156.202, which provided for modification of joint
      managing conservatorship, has been repealed, and section 156.101 wasrewritten in
      2001. Act of May 22, 2001, 77th Leg., R.S., ch. 1289, §§ 5, 12, 2001 Tex. Gen.
      Laws 3108, 3111. Before 2001, a movant was required to show a material and
      substantial change in circumstances as well as positive improvement for the child.
      See In re V.L.K., 279 S.W.3d 338, 342 (Tex. 2000). The current version of section
      156.101 no longer includes the requirement of “positive improvement for the
      child.” See Lenz v. Lenz, 79 S.W.3d 10, 12 n.1 (Tex. 2002). Accordingly, we
      conduct our analysis under the current version of section 156.101.
                                           9
§ 156.101(a)(1)(A) (Vernon Supp. 2012). In determining whether a material and

substantial change of circumstances has occurred, the fact finder is not confined to

rigid or definite guidelines; instead, the determination is fact-specific and must be

made according to the circumstances as they arise. In re A.L.E., 279 S.W.3d 424,

428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Material changes may

include (1) the marriage of one of the parties; (2) “poisoning” of a child’s mind by

one of the parties; (3) change in the home surroundings; (4) mistreatment of a child

by a parent or step-parent; or (5) a parent’s becoming an improper person to

exercise custody.   Arrendondo v. Betancourt, 383 S.W.3d 730, 734–35 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). A course of conduct by one parent that

hampers a child’s opportunity to associate favorably with the other parent may

suffice as grounds for re-designating managing conservators. Id. at 735. Such a

material and substantial change in circumstances may be established by either

direct or circumstantial evidence. In re A.L.E., 279 S.W.3d at 429.

       Without any specific citation to the record, Marjorie asserts that Aaron

“admitted” in his testimony that there was no substantial change in circumstances

and he failed to “prove” a substantial change of circumstances between the divorce

decree and the filing of the petition to modify. Marjorie’s own trial testimony

conclusively established changed circumstances sufficient to support the

modification in Aaron’s favor.     She testified that she lived in three different


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residences in a four-month period; she had been engaged to two different men with

only three months separating the engagements; she was unemployed since she had

been ordered to move back to Houston; and she kept the child out of school for

three days, which constituted “unexcused absences.” This testimony alone was

sufficient to establish changed circumstances.

      Additionally, Aaron offered sufficient evidence of a substantive and

probative character to support the trial court’s modification of the divorce decree.

At trial, Aaron testified that since the entry of the divorce decree he had remarried

and had another child, Marjorie had lived in five different residences, the longest

period of time being eight months after the trial court entered temporary orders

requiring her to bring the child back to Harris County, she had been engaged to

two different men, was unemployed, and moved to Nevada with the child. We

conclude that at least some evidence of a substantial and probative character exists

to support the trial court’s finding of a material and substantial change in

circumstances since the divorce decree. See Valdez v. Valdez, 930 S.W.2d 725,

731 (Tex. App.—Houston [1st Dist.] 1996, no writ).

      We overrule Marjorie’s first issue.

                    Findings of Fact and Conclusions of Law

      In her third issue, Marjorie argues that the trial court abused its discretion in

modifying child support because it “deviated from the child support guidelines”


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and did not make findings of fact and conclusions of law “to explain why it

deviated from the Child Support Guidelines.” A trial court is required to make

specific findings if “the amount of child support ordered by the court varies from

the amount computed by applying the percentage guidelines under [Family Code]

Section[s] 154.125 or 154.129 as applicable” or if a party “files a written request

with the court not later than 10 days after the date of the hearing.” TEX. FAM.

CODE ANN. § 154.130(a)(1), (3) (Vernon Supp. 2012). Because Marjorie made a

timely request for findings of fact and conclusions of law, the trial court was

required to make them. 4 However, the trial court did not vary from the child

support guidelines here, and it made the findings of fact and conclusions of law

required by section 154.130 in the modification order.

      Section 154.130 provides:

            (b) 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
      $_______;

4
      Aaron argues that Marjorie has waived this issue because she failed to notify the
      trial court that it had not made the requested findings by filing a “Notice of Past
      Due Findings of Fact and Conclusions of Law.” See TEX. R. CIV. P. 297.
      However, section 154.130 states that the statutory requirement of entry of findings
      and conclusions by the trial court is “[w]ithout regard to Rules 296 through 299,
      Texas Rules of Civil Procedure.” TEX. FAM. CODE ANN. § 154.130(a) (Vernon
      Supp. 2012). Therefore, Marjorie was not required to notify the trial court of any
      past due findings. Regardless, the trial court made the findings required by section
      154.130 in the modification order.
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                   “2) the net resources of the oblige per month are
      $_______;

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

                  “(4) if applicable, the specific reason 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.”

TEX. FAM. CODE ANN. § 154.130.

      In the modification order, the trial court found that Marjorie had not

provided the court with tax returns or a financial information statement. See TEX.

FAM. CODE ANN. § 154.063 (Vernon 2008). The court noted that it was basing its

child support determination on the percentage guidelines, Marjorie’s net resources

per month were $2,710.57, and Aaron’s net resources per month were $2,375.00.

The trial court stated that the percentage applied to the first $7,500 of Marjorie’s

net resources was twenty percent. Thus, the trial court made the findings of fact

and conclusions of law required by section 154.130, and Marjorie was not entitled

to any separate findings. See Evans v. Evans, 14 S.W.3d 343, 347 (Tex. App.—

Houston [14th Dist.] 2000, no pet.).

      We overrule Marjorie’s third issue.

                              Motion for New Trial

      In her fourth issue, Marjorie argues that the trial court abused its discretion

in denying her Motion for New Trial because she “point[ed] out to the trial court

                                         13
its error.” Having concluded that there was some evidence of a substantial and

probative character to support the trial court’s finding of material and substantial

change in circumstance, we conclude that the trial court did not abuse its discretion

in denying Marjorie’s motion for new trial.

      We overrule Marjorie’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Brown, and Huddle.




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