Opinion issued December 17, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00587-CV
                           ———————————
                     BEATRICE SANDOVAL, Appellant
                                       V.
                       DANIEL MARTINEZ, Appellee


                   On Appeal from the 246th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-60445


                         MEMORANDUM OPINION

      This is an appeal from the trial court’s order modifying the parent-child

relationship, which removes appellant, Beatrice Sandoval, and appellee, Daniel

Martinez, as joint managing conservators of their minor son, and makes Daniel the
sole managing conservator and Beatrice the possessory conservator. In two issues

on appeal, Beatrice contends that the trial court erred in (1) finding that changed

circumstances support the modification and (2) entering a judgment that did not take

into consideration Beatrice’s two other minor children in setting child support and

did not impose a geographic limitation to Texas on Daniel’s right to designate the

child’s primary residence. We affirm in part and reverse and remand in part.

                                  BACKGROUND

      Beatrice and Daniel are parents of a child, DMJ,1 who was two years old at

the time of trial. On February 24, 2016, while the child was an infant, Beatrice and

Daniel entered into an “Agreed Order in Suit Affecting the Parent-Child

Relationship.” Under this original agreed order, both parents were appointed joint

managing conservators, with Beatrice having the exclusive right to designate the

child’s primary residence, which was required to be “in HARRIS or any contiguous

county.”

      Thereafter, the relationship between the parents deteriorated, and Beatrice was

arrested and charged with assaulting Daniel’s new girlfriend, Katie, during an

exchange of possession in September 2016.2



1
      For purposes of this opinion, we refer to the child by the alias DMJ.
2
      Beatrice received deferred adjudication and the charges were dismissed once she
      successfully completed the deferred-adjudication requirements.
                                            2
      In December 2016, Beatrice took the child to live with her mother in

California. Her other children were already there, and she wanted to join them. She

also claimed that she moved because she was having trouble financially and that she

was frightened of Daniel.

      On March 10, 2017, Daniel filed an “Emergency Motion to Modify

Conservatorship and Possession or Access,” alleging that Beatrice had “violated the

present orders of this court” and had prevented Daniel from “seeing the child for the

last four months.” Beatrice returned to Texas with the child sometime that same

month. Before the motion to modify went to trial, the trial court signed temporary

orders placing the child with Daniel.

      Daniel’s motion to modify went to trial on March 26, 2018. At trial, both

parties testified and presented evidence about their difficult relationship.

Specifically, there was evidence about Beatrice’s assault against Daniel’s now-wife,

Katie. There was also evidence of violence against Daniel, Beatrice’s older daughter,

and injuries to Beatrice and Daniel’s two-year-old child while he was in Beatrice’s

care. Daniel testified that since the child was returned to his possession, the child

also showed signs of aggressive behavior. When Daniel took the child to the doctor,

the medical records note that the child was aggressive with the medical

professionals. Finally, both Daniel and Beatrice testified about the almost four-




                                         3
month period, during which Beatrice took the child and moved to California to live

with her mother.

      At the close of the trial, the trial court stated:

      I find there has been a change in circumstance. I find that the
      respondent mother has committed family violence. I am appointing the
      father as the sole managing conservator of the child, the mother as the
      possessory conservator of the child. He may determine the residence of
      the child within the State of Texas.

      The respondent has a modified standard possession order, which would
      be all of the standard possession order without Thursdays. Pickup and
      return will be at the petitioner’s residence unless the parties can agree
      otherwise.

      Respondent is to pay child support based on a gross income of $400 a
      week with the offset for her other children beginning April 1st, 2018,
      by wage withholding. Petitioner is to provide the health insurance for
      the child, and the parties will both pay one-half of the uninsured
      medical support as child support. Petitioner’s child support is
      terminated per the prior temporary order.

      On April 24, 2018, the trial court signed an “Order in Suit to Modify Parent-

Child Relationship.” The order, which is the subject of the present appeal, states

that “[t]he Court finds that the material allegations in the petition to modify are true

and that the requested modification is in the best interest of the child.” The order

does not specify family violence as the basis for the change in circumstances

required to modify the original custody order. The order removes the parents as joint

managing conservators and makes Daniel the sole managing conservator and

Beatrice the possessory conservator.


                                            4
      On May 7, 2018, Beatrice timely filed a request for findings of fact and

conclusions of law. Then, on July 3, 2018, over two months after the trial court

signed the modification order, Beatrice notified the trial court of past-due findings

of fact and conclusions of law. The trial court did not file findings of fact and

conclusions of law.

      This appeal followed.

CUSTODY MODIFICATION BASED ON CHANGED CIRCUMSTANCES

      In issue one, Beatrice contends that “[t]he Trial Court abused its discretion by

appointing Daniel Martinez as Sole Possessory Conservator based on a finding of

family violence.”

Standard of Review and Applicable Law

      Because a trial court has broad discretion to decide the best interest of a child

in family-law matters such as custody, visitation, and possession, we review a trial

court’s order modifying conservatorship under an abuse-of-discretion standard. See

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

discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly

analyze or apply the law. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston

[14th Dist.] 2002, no pet.).

      Under the abuse-of-discretion standard, legal and factual sufficiency of the

evidence are not independent grounds of error but are factors in assessing whether


                                            5
the trial court abused its discretion. See In re D.S., 76 S.W.3d at 516. An appellate

court will sustain a legal-sufficiency issue 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. See 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 trial court’s exercise of discretion,

we consider the evidence and inferences favorable to the finding if a reasonable

factfinder could, and disregard evidence contrary to the finding unless a reasonable

fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);

Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002); In re P.M.B., 2 S.W.3d 618, 621–22

(Tex. App.—Houston [14th Dist.] 1999, no pet.). We defer to the factfinder’s

resolution of underlying facts and to credibility determinations that may have

affected its determination and will not substitute our judgment for the factfinder’s.

In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

      To prevail on his petition to modify the parent-child relationship, Daniel had

to establish that (1) modification would be in the child’s best interest and (2) “the

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

materially and substantially changed” since the date of the rendition of the February


                                           6
23, 2016 “Agreed Order in Suit Affecting the Parent-Child Relationship.” See TEX.

FAM. CODE § 156.101(a)(1)(A). Here, Beatrice does not challenge the implied

finding that the modification was in the child’s best interest; she challenges only the

implied finding of a material and substantial change in circumstances. Specifically,

she contends that the evidence is insufficient to support the trial court’s implied

finding of a change of circumstances based on family violence.

      In deciding whether a material and substantial change of circumstances has

occurred, a factfinder 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 at 428. 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. Id. at 429.

Additionally, a course of conduct pursued by a managing conservator that hampers

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

grounds for redesignating managing conservators. In re Marriage of Chandler, 914

S.W.2d 252, 254 (Tex. App.—Amarillo 1996, no writ); Gunther v. Gunther, 478

S.W.2d 821, 829–30 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.).

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.


                                          7
      Because no findings of fact were entered in this case,3 we infer that the trial

court made all findings necessary to support its judgment. See Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990); In re P.A.C., 498 S.W.3d 210, 217 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied). Under these circumstances, we review the

record to determine whether some evidence supports the judgment and the implied

findings, considering only the evidence most favorable to the judgment and




3
       Rule of Civil Procedure 296 provides that in “any case tried in the district or county
      court without a jury, any party may request the court to state in writing its findings
      of fact and conclusions of law.” TEX. R. CIV. P. 296. Once properly requested, a
      trial court has twenty days to file its findings of fact and conclusions of law, and if
      the trial court fails to do so, the requesting party must notify the trial court within
      thirty days after filing the original request. TEX. R. CIV. P. 297. When a party
      notifies the trial court of its failure to file findings and conclusions, but the notice is
      untimely, the requesting party has waived the right to complain on appeal. See Vee
      Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 131 (Tex. App.—El Paso 2011, no
      pet.) (holding ranch owners waived any right to complain on appeal about trial
      court’s failure to file findings of fact and conclusions of law where owners’ filing
      of past-due-findings notice in trial court was untimely).

      Here, the trial court signed its final modification order on April 24, 2018. On May
      7, 2018, Beatrice timely filed a request for findings of fact and conclusions of law.
      Then, on July 3, 2018, Beatrice notified the trial court of past-due findings of fact
      and conclusions of law. Beatrice’s notice of past-due findings and conclusions was
      not timely because it was more than thirty days after the May 7, 2018 request.
      Because her notice of past due findings was untimely Beatrice has waived the right
      to complain about the lack of findings by the trial court.




                                               8
upholding the judgment on any legal theory supported by the evidence. Worford,

801 S.W.2d at 109; P.A.C., 498 S.W.3d at 217.

      With these principles in mind, we review the evidence for a material and

substantial change in circumstances since the February 23, 2016 agreed custody

order that would, in the child’s best interest, justify a custody modification.

Analysis

      Beatrice contends that there was no evidence to support the trial court’s

implied “family violence” finding because it referred to “[a]n incident between

Beatrice Sandoval and Katie Martinez, while Katie Martinez was married to another

man, not living with Daniel Martinez, but in a dating relationship with Daniel

Martinez.” However, we need not decide whether Beatrice’s assault against Katie

constitutes “family violence,” as that term is defined by the Family Code, because

other evidence also supports the trial court’s change-of-circumstances finding.

      In addition to the assault against Katie, there was also evidence that, at a beach

party in the summer of 2016, Beatrice followed Daniel in her car and rear-ended him

because she was angry that he allowed someone to sit and cool off in his truck while

not inviting her children to do so. Although Beatrice claimed that the incident

occurred because she was texting, her foot slipped off the brake, and she bumped the

barbecue pit that Daniel had attached to the back of his truck, the trial court, as

factfinder, was entitled to disbelieve her testimony See In re A.L.E., 279 S.W.3d at


                                           9
427 (noting that we defer to factfinder on credibility issues). This would be some

evidence of family violence against a family member as those terms are defined by

Family Code section 71.003 and 71.004(1).4

      Beatrice’s older daughter testified in an earlier temporary-order hearing that

Beatrice struck her in the head, arm, and leg. This, too, is some evidence of family

violence, as those terms are defined by the Family Code. See id. Although Beatrice

contended that her daughter had lied about the abuse, the trial court, as factfinder,

was entitled to disbelieve her testimony. See id.

      There was also evidence that, on one occasion, when Beatrice returned the

child after a period of possession, Daniel noticed an iron burn on the child. Beatrice

testified that she left the iron on the floor because she did not want it to fall on the

child, but that when he walked by the iron on the floor, he burned himself. Daniel

also noticed a gash on the child’s chin and that he had a bump between his eyes and

two black eyes. Beatrice claimed that these injuries were caused when the child




4
      “Family violence” means “an act by a member of a family or household against
      another member of the family or household that is intended to result in physical
      harm, bodily injury, assault, or sexual assault or that is a threat that reasonably
      places the member in fear of imminent physical harm, bodily injury, assault, or
      sexual assault, but does not include defensive measures to protect oneself.” TEX.
      FAM. CODE § 71.004(1); see also TEX. FAM. CODE § 101.0125 (applying definition
      in section 71.004 to suits affecting parent-child relationship). “Family” includes
      individuals related by consanguinity or affinity or who are the parents of the same
      child, without regard to marriage. TEX. FAM. CODE. § 71.003.
                                          10
accidentally fell. Again, the trial court, as factfinder, was entitled to disbelieve

Beatrice’s explanations. See id.

      Finally, and perhaps most importantly, there was evidence that, even though

the original decree provided that Beatrice was required to maintain the child’s

primary residence in Harris or any contiguous county, she moved with the child to

California on December 24, 2016, and kept him there until March 2017. During her

stay in California, Daniel was deprived of his court-ordered visitation, including the

Christmas holidays in 2016. Beatrice claimed that she moved to her mother’s house

in California because she was having a hard time financially and she was scared for

her safety because Daniel “was coming around the apartment, driving around crazy,

screaming at [her], banging on [her] door, blowing his horn.” She also said that her

other children were already living with her mother in California and she wanted to

join them. The record shows that Daniel filed an “Emergency Motion to Modify

Conservatorship and Possession or Access” on March 10, 2017, and that Beatrice

returned to Texas about that time. Beatrice testified that she returned to Texas

because she wanted to obtain custody “the legal way.”

      In Arredondo v. Betancourt, 383 S.W.3d 730, 739–40 (Tex. App.—Houston

[14th Dist.] no pet.), the mother appealed from a modification that designated the

father as the conservator with the exclusive right to designate the child’s primary

residence. The court of appeals held that there was evidence to support the


                                         11
modification—the mother had moved the child to Mexico without telling the father

beforehand, she failed to return the child to the father for his possession period,

including the Christmas visitation, and the father’s ability to exercise visitation

would be significantly impaired if the mother were allowed to move to Mexico with

the child. Id. It should be noted that the court of appeals found sufficient evidence

to show a change of circumstances, even though when the mother moved the child

to Mexico there was no geographic restriction in the decree preventing her from

doing so. Id. at 738.

      In this case, there was a geographic restriction in the decree that required

Beatrice to “maintain the child’s primary residence in HARRIS or any contiguous

county.” Despite that restriction, Beatrice moved the child to California without

prior notice to Daniel, and, in doing so, she deprived him of his court-ordered

visitation. Following the reasoning of the court in Arredondo, which applies even

more so because of the geographic restriction in this case, we conclude that there is

sufficient evidence to show a change in circumstances. See 383 S.W.3d at 739–40.

      Based on the assault against Katie, even if not family violence, the evidence

of family violence against Daniel, Beatrice’s older daughter, and the child, plus the

fact that Beatrice moved to California in violation of the court order thereby

depriving Daniel of visitation rights, the trial court did not abuse its discretion in its

implied finding of a change in circumstances.


                                           12
      Accordingly, we overrule issue one.

       DOMICILE RESTRICTION AND CHILD-SUPPORT CREDIT

      In issue two, Beatrice contends the trial court “erred in signing the Judgment

in Suit to Modify that did not impose a domicile restriction on the child to Texas and

did not calculate child support considering [Beatrice’s] two other children, not

before the trial court.”

      Daniel “concedes that [Beatrice] should be entitled to a reduction of child

support due to the amount of child support assessed in the final order not taking into

consideration the two other minor children not before the Court.” Daniel also

acknowledges that “the domicile of the child should be restricted to the state of Texas

as per the ruling made by the Judge.” We agree that the judgment does not include

the restriction and credit requested by both parties, and that the trial court indicated

that it intended to include such in its judgment.

      Accordingly, we sustain issue two.

                                   CONCLUSION

      We reverse only the portions of the order determining the amount of child

support Beatrice owes and giving Daniel the right to designate the child’s primary

residence without a geographical limitation to the State of Texas. We remand the

case to the trial court to (1) recalculate Beatrice’s child support, taking into

consideration her other two minor children, and to (2) impose a geographical


                                          13
limitation to the state of Texas on Daniel’s right to designate the primary residence

of the child. We affirm the remaining portions of the judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.




                                         14
