in the Interest of C.A. and C.A., Children

IN THE
TENTH COURT OF APPEALS

No. 10-16-00351-CV

IN THE INTEREST OF
C.A. AND C.A., CHILDREN

From the County Court at Law No. 1
Brazos County, Texas
Trial Court No. 14-002766-CV-CCL1

MEMORANDUM OPINION

Appellant M.B.1 (“Mom”) filed a pro se appeal of the trial court’s order modifying

her visitation with her children, C.A. and C.A., and requiring her to reimburse Appellee

D.A. (“Dad”) for out-of-pocket medical expenses for the children. Dad filed a Motion to

Dismiss Appeal for Lack of Jurisdiction and a Motion for Damages Under TRAP 45.

Having reviewed the record in this case, we deny Dad’s motions and affirm the trial

court’s order.

1 We use aliases when referring to the parties. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
 I. Background

Mom and Dad entered into an agreed divorce in 2011 that appointed Dad as

managing conservator of their children and Mom as possessory conservator. The divorce

decree required Mom to maintain medical insurance for the children and to reimburse

fifty percent of Dad’s out-of-pocket medical expenses for the children.

Mom married Husband Number 2 shortly after the divorce was final. Mom’s

second marriage lasted approximately three years. Mom then married Husband Number

3 shortly after the divorce was final from Husband Number 2.

Dad also remarried in 2013 and moved to College Station. Dad filed a motion to

modify the child support order in June of 2014 in Harris County, where the divorce action

originated, seeking an increase in child support. Dad discovered troubling information

regarding Mom’s lifestyle after or during her divorce from Husband Number 2. Dad

then filed a motion to modify the custody arrangement and also filed a motion to transfer

the case to Brazos County, which the trial court granted over Mom’s objection. Dad

obtained an ex parte temporary restraining order that halted Mom’s visitation. After the

matter was set for a temporary injunction hearing, the parties entered into a Rule 11

agreement extending the temporary orders until further order of the court. After a

hearing, the trial court entered temporary orders that required Mom’s visits with the

children be supervised by a professional monitoring organization and that required her

electronic communications with the children be monitored by Dad. The trial court

appointed an attorney ad litem for the children and appointed a psychologist to

investigate the family and prepare a custody report.

In the Interest of C.A. and C.A., Children Page 2
 The trial court scheduled separate bench trials on the modification and the

enforcement actions after both Mom and Dad waived a jury. The modification trial was

held on May 9 and 10, 2016, and the enforcement trial was held on May 25, 2016. In the

Order in Suit to Modify Parent-Child Relationship and Order on Motion for Enforcement

of Order for Support of a Child, the trial court determined that it was in the best interest

of the children that their visits with Mom continue to be supervised and that her

electronic communications with the children continue to be monitored by Dad. The trial

court further found that Mom’s child support obligation should be increased, that she

owed $2,887.50 in increased support from the date she was served, that she owed unpaid

child support in the amount of $5,456.25, that she owed medical reimbursements in the

amount of $2,413.68, and that she owed $59,027.18 in attorney’s fees in the modification

action and $19,473.47 in attorney’s fees in the enforcement action.

Mom filed a Motion to Modify, Correct or Reform Court Order and an Amended

Motion to Modify, Correct or Reform or Alternatively Motion for a New Trial, which the

trial court denied. The trial court entered findings of fact and conclusions of law upon

Mom’s request and subsequently entered a Nunc Pro Tunc Order in Suit to Modify

Parent-Child Relationship and Order on Motion for Enforcement of Order for Support of

a Child. Mom then filed her notice of appeal.

II. Pending Motions

Dad moves to dismiss Mom’s appeal for lack of jurisdiction, asserting that her

appeal only addresses the Order in Suit to Modify Parent-Child Relationship and Order

on Motion for Enforcement of Order for Support of a Child that was signed by the trial

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court on August 8, 2016 and filed with the clerk on August 10, 2016. Mom’s notice did

not, Dad argues, appeal the final judgment—the Nunc Pro Tunc Order filed on

September 22, 2016.

The Nunc Pro Tunc Order was entered at Dad’s request in order to correct three

typographical errors. See Dad’s Motion for Judgment Nunc Pro Tunc Under Texas Rule

of Civil Procedure 316 filed as an exhibit to Mom’s Amended Notice of Appeal. The

correction of those errors is the only difference between the Order and the Nunc Pro Tunc

Order.

To the extent there was error in Mom’s Notice of Appeal by citing the Order

instead of the Nunc Pro Tunc Order, it was corrected in her Amended Notice of Appeal.

The Amended Notice of Appeal refers to both the Order and the Nunc Pro Tunc Order.

Mom filed the Amended Notice of Appeal prior to filing her brief. See TEX. R. APP. P.

25.1(g) (“An amended notice of appeal correcting a defect or omission in an earlier filed

notice may be filed in the appellate court at any time before the appellant’s brief is filed.”).

We, therefore, have jurisdiction to consider this appeal, and Dad’s Motion to Dismiss

Appeal is denied.

Dad additionally moves for damages under Rule 45 of the Rules of Appellate

Procedure asserting that Mom has filed a frivolous appeal. TEX. R. APP. P. 45. Rule 45

provides that the appellate court may award damages if it determines that an appeal is

frivolous. Id. The decision to award damages for a frivolous appeal is within the

appellate court’s discretion. Emerson v. Emerson, 559 S.W.3d 727, 738 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). “Whether to grant sanctions for a frivolous appeal is

In the Interest of C.A. and C.A., Children Page 4
a matter of discretion that this court exercises with prudence and caution, and only after

careful deliberation in truly egregious circumstances.” In re Willa Peters Hubberd

Testamentary Trust, 432 S.W.3d 358, 369 (Tex. App.—San Antonio 2013, no pet.) (quoting

Gard v. Bandera County Appraisal Dist., 293 S.W.3d 613, 619 (Tex. App.—San Antonio 2009,

no pet.)). In determining whether an appeal is objectively frivolous, “we review the

record from the viewpoint of the advocate and decide whether the advocate had

reasonable grounds to believe the case could be reversed.” Glassman v. Goodfriend, 522

S.W.3d 669, 673 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

After reviewing the record, we do not find that this appeal presents egregious

circumstances that would justify the award of sanctions under Rule 45. Therefore, Dad’s

Motion for Damages Under TRAP 45 is denied.

III. Issues

Mom presents the following issues:

I. Did the trial court err in rendering the final order in this cause?

1. The trial court failed to adhere to statutory mandates in
assigning parental rights and duties.

2. The trial court failed to adhere to statutory mandates in
awarding the security for compliance of an order.

II. Did the trial court err in modifying the possession order?

1. The Appellee did not meet his burden of proof to show that
circumstances had materially or substantially changed since
the entry of the final decree of divorce and that modification
would be in the best interest of the children.

In the Interest of C.A. and C.A., Children Page 5
 2. The Appellee did not meet his burden of proof to show that
unsupervised access by the Appellant would endanger the
physical health and emotional welfare of the children.

3. The trial court erred in not making the finding that
circumstances had materially or substantially changed since
the entry of the final decree of divorce and that modification
would be in the best interest of the children.

III. Did the trial court err in its findings of fact regarding modification?

1. The evidence was legally and factually insufficient to support
a finding that the material allegations set out in the Third
Amended Petition were true and the requested modification
was in the best interest of the children.

2. The evidence was legally and factually insufficient to support
a finding that credible evidence was presented at trial that
awarding unsupervised access to the Appellant would
endanger the children’s physical health and emotional
welfare of the children.

3. The evidence was legally and factually insufficient to support
a finding that credible evidence was presented at trial to
conclude that Mother has a pattern or history of child neglect
directed against the children.

4. The evidence was legally and factually insufficient to support
a finding that awarding unsupervised access to the Appellant
would not be in the best interest of the children.

IV. Did the trial court err in granting the requested modification?

1. The trial court erred in restricting the Appellant’s possession
of the children to supervised visitation at a visitation center.

2. The trial court erred in restricting the Appellant’s
phone/electronic communication with the children.

3. The trial court erred in granting the Appellee the sole
discretion to allow, monitor and supervise electronic
communication between the Appellant and the children.

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 4. The trial court erred by not considering less restrictive
alternatives.

V. Did the trial court err regarding the child custody evaluation?

1. The trial court erred in the application of law regarding child
custody evaluations in this cause.

2. The trial court erred in finding that Dr. Arredondo was
appointed the child custody evaluator in this cause.

3. The trial court erred in admitting the child custody report and
testimony of Dr. Arredondo.

VI. Did the trial court err in its statutorily mandated duties?

1. The trial court erred in consolidating the modification and
enforcement actions for trial and combining the rulings on the
actions in the same order.

2. The Appellant was deprived of the right to a speedy trial on
the Motion for Enforcement.

3. The trial court erred in denying the Appellant’s Second
Motion for Continuance.

VII. Did the trial court err in the enforcement action?

1. The trial court erred in finding that the enforcement action for
child support was filed on June 24, 2015 and that the
Appellant was served with the enforcement action for child
support on July 9, 2015.

2. The Appellee did not meet the burden of proof to show that
medical reimbursements were requested in accordance with
the final decree of divorce.

3. The evidence was legally and factually insufficient to support
the finding that the Appellant did not pay court ordered
medical reimbursements in accordance with the decree.

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 4. The evidence was legally and factually insufficient to support
the finding that the Appellant failed to pay $2,413.86 in
medical reimbursements.

VIII. Did the trial court err in awarding attorney’s fees?

1. The Appellee did not meet his burden of proof to show that
the attorney’s fees were reasonable and necessary.

2. The evidence was legally and factually insufficient to support
the findings of fact 28 and 29 regarding the award of
attorney’s fees.

3. The trial court erred in its conclusions of law 13 and 14
regarding the classification and collectability of all judgement
[sic] amounts.

IV. Errors Not Preserved

Dad argues that many of Mom’s issues are waived because she did not raise a

contemporaneous objection at trial. Although we construe pro se pleadings and briefs

liberally, pro se litigants are held to the same standards as licensed attorneys and must

comply with all applicable laws and rules of procedure. See Mansfield State Bank v. Cohn,

573 S.W.2d 181, 185-86 (Tex. 1978).

Rule 33.1 of the Rules of Appellate Procedure provides that a prerequisite for

presenting a complaint for appellate review is that an issue must first be presented to the

trial court through a timely request, objection, or motion. TEX. R. APP. P. 33.1. A timely

objection is one that is interposed at a point in the proceedings that gives the trial court

the opportunity to cure any alleged errors. Anderton v. Green, 555 S.W.3d 361, 372 n.4

(Tex. App.—Austin 2018, no pet.). Presenting an issue for the first time in a motion for

new trial does not satisfy the contemporaneous objection rule if the complaint could have

In the Interest of C.A. and C.A., Children Page 8
been urged earlier. St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc., 974

S.W.2d 51, 53 (Tex. 1998); see also Matbon, Inc. v. Gries, 288 S.W.3d 471, 490 (Tex. App.—

Eastland 2009, no pet).

In her reply brief, Mom cites to a number of places in the record that she alleges

show that she properly preserved the issues raised. However, these citations are all to

her Amended Motion to Modify, Correct or Reform or Alternative Motion for a New

Trial. This is insufficient to preserve the issues for appeal. Accordingly, because Mom

did not make timely objections that comport with her appellate contentions, we conclude

that she failed to preserve the following issues, and they are overruled: I.1, I.2, V.1, V.2,

V.3, VI.1, VI.2, and VIII.1.

Mom also alleges improprieties with the temporary orders and a letter ruling that

were entered prior to the final order. These claims are not cognizable. Issues related to

the temporary orders/injunction and letter ruling are moot since the trial court

subsequently entered a final order that incorporated the details of the letter ruling. See

Mauldin v. Clements, 428 S.W.3d 247, 261-62 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

(temporary orders superseded by final order); Hailey v. KTBS, Inc., 935 S.W.2d 857, 859

(Tex. App.—Texarkana 1996, no pet.) (written order controls over letter). As a result,

issues II and III are overruled to the extent they challenge the temporary

orders/injunction or letter ruling.

V. Standard of Review

A trial court’s decision to modify “custody, control, possession, support, and

visitation matters” is reviewed for an abuse of discretion. In re K.A.M.S., 583 S.W.3d 335,

In the Interest of C.A. and C.A., Children Page 9
340 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The test for abuse of discretion is

whether the trial court ruled “arbitrarily, unreasonably, or without regard to guiding

legal principles.” Bocquet v. Herring, 972 S.W.3d 19, 21 (Tex. 1998). We apply an abuse of

discretion standard because, particularly in a bench trial, the trial court is in the best

position to observe “the character of the evidence, the demeanor of the witnesses, and

those influences which cannot be discerned from the record.” Id. Under this standard,

we review the evidence in the light most favorable to the trial court’s decision and

“indulge every legal presumption in favor of its judgment.” In re J.I.Z., 170 S.W.3d 881,

883 (Tex. App.—Corpus Christi 2005, no pet.). We defer to the trial court’s resolution of

underlying facts, and to the credibility determinations that may have affected its

determination of those facts, and will not substitute our judgment for that of the trial

court. In re K.A.M.S., 583 S.W.3d at 341. “The trial court does not abuse its discretion if

there is some evidence of a substantive and probative character to support its decision.”

Id.

Abuse of discretion is also the standard used when reviewing a trial court’s denial

of a continuance and award of attorney’s fees in a suit affecting the parent-child

relationship. See In re Z.A.T., 193 S.W.3d 197, 208 (Tex. App.—Waco 2006, pet. denied)

(continuance); In re B.J.W., No. 05-17-00253-CV, 2018 WL 3322882, at *2 (Tex. App.—

Dallas July 6, 2018, no pet.) (mem. op.) (attorney’s fees).

Mom challenges the legal and factual sufficiency of the evidence as it relates to

both the modification and the enforcement actions. Sufficiency of the evidence is only

one factor in determining whether the trial court abused its discretion in an order

In the Interest of C.A. and C.A., Children Page 10
modifying “custody, control, possession, support, [or] visitation.” See In re J.I.Z., 170

S.W.3d at 883; see also In re F.R.N., No. 10-18-00233-CV, 2019 WL 3801630, at *4 (Tex.

App.—Waco Aug. 7, 2019, no pet.) (mem. op.).

When examining legal sufficiency, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could and
disregarding contrary evidence unless a reasonable factfinder could not.
Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018); In re P.A.C., 498 S.W.3d 210,
214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We indulge every
reasonable inference that would support the challenged finding. Gunn, 554
S.W.3d at 658. Evidence is legally sufficient if it would enable reasonable
and fair-minded people to reach the decision under review. Id.

For a factual-sufficiency review, we examine the entire record and
consider evidence favorable and contrary to the challenged finding. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); In re P.A.C., 498 S.W.3d at
214. We may set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain, 709 S.W.3d at 176.

In re K.A.M.S., 583 S.W.3d at 341.

VI. Discussion

A. Continuance. Mom includes a number of allegations in regard to the denial of

her second motion for continuance, many of which were not specifically presented to the

trial court. For those issues not waived, Mom has identified no harm she suffered as a

result of the denial of her second motion for continuance. In order for a judgment to be

reversed on appeal based upon the ground that the trial court made an error of law, the

appellant must establish that the error complained of probably caused the rendition of

an improper judgment. See TEX. R. APP. P. 44.1. Mom presented nothing to the trial court

or in her brief to this court that indicates what evidence she would have presented if a

continuance was granted or how it would have affected the outcome of this case. We

In the Interest of C.A. and C.A., Children Page 11
conclude there is nothing to indicate that the trial court abused its discretion in denying

Mom’s second motion for continuance, particularly when the May 9-10 dates were

requested by Mom. Mom’s issue VI.3 is overruled.

B. Enforcement Action. Mom does not contest the trial court’s order as it relates

to the increase in the amount of child support or the amount calculated for arrearages in

child support but does contest the trial court’s findings that the enforcement action was

filed on June 24, 2015 and that she was served with the enforcement action on July 9, 2015.

If the trial court erred in these findings, Mom does not indicate how she was prejudiced

as a result.

Mom also contests the trial court’s finding that she owed Dad $2,413.86 in medical

reimbursements. Mom argues that Dad failed to meet the burden of proof in regard to

the medical reimbursements, that the evidence was legally and factually insufficient to

support the finding that she did not pay medical reimbursements in accordance with the

divorce decree, that the evidence was legally and factually insufficient to support the

finding that Dad provided credible testimony, and that the evidence was legally and

factually insufficient to support the finding that she failed to pay $2,413.86 in medical

reimbursements.

Mom’s disagreement with the medical reimbursement award is centered upon her

belief that she should not be responsible for reimbursements because Dad did not provide

notice in the manner required by the divorce decree. Dad testified that he sent the

requests for reimbursement to Mom by email, which is not one of the approved methods

in the divorce decree. However, Dad additionally testified that Mom paid medical

In the Interest of C.A. and C.A., Children Page 12
reimbursements that were sent to her by email until Dad filed the petition for

modification in the fall of 2014. Mom did not dispute this testimony. The trial court could

have determined that Mom waived the formal notice requirement by her course of

conduct. A party to a divorce decree may waive a condition precedent, which may be

inferred from that party’s conduct. See Moore v. Moore, 568 S.W.3d 725, 731 (Tex. App.—

Eastland 2019, no pet.) (waiver ordinarily question of fact but becomes question of law

when facts and circumstances are undisputed).

Dad testified and presented exhibits supporting his claim that Mom failed to pay

$2,413.86 in medical reimbursements. Mom presented nothing to the contrary other than

her testimony that she did not pay the requested amounts because they were not properly

submitted and lacked sufficient documentation.

Even though testimony regarding unreimbursed payments may be conclusory

and from an interested witness, they present an issue to be determined by the trier of fact

if they are uncontradicted. In re A.C.B., 302 S.W.3d 560, 564 (Tex. App.—Amarillo 2009,

no pet.). “One factor that the trier of fact can consider in assessing the credibility of the

evidence is whether the opposite party had the means and opportunity of disproving the

testimony, if it were not true, and failed to do so.” Id. Mom had the opportunity to bring

whatever evidence she believed would contest Dad’s claim. She did not do so.

Dad’s testimony and the exhibits he presented were sufficient, legally and

factually, for the trial court to determine that the amount of unreimbursed medical

expenses owed by Mom was $2,413.86. Issues regarding Dad’s credibility are within the

purview of the trial court, who found Dad a credible witness. We conclude that the trial

In the Interest of C.A. and C.A., Children Page 13
court did not abuse its discretion in awarding $2,413.86 to Dad for unreimbursed medical

payments. Mom’s issues VII.1, VII.2, VII.3, and VII.4 are overruled.

C. Modification Action. Mom basically asserts that the evidence was legally and

factually insufficient to support the trial court’s determination that supervised visitation

with the children was appropriate. Mom argues that Dad did not meet his burden of

proof and the trial court did not consider less restrictive alternatives.

1. Procedural Issues. Mom argues that Dad’s Third Amended Petition to

Modify Parent-Child Relationship contains no specific material allegations that would

support modification. Mom next argues that an affidavit attached to the Second

Amended Petition to Modify Parent-Child Relationship was forged.

Rule 90 of the Rules of Civil Procedure provides, in pertinent part:

Every defect, omission or fault in a pleading either of form or of substance,
which is not specifically pointed out by exception in writing and brought
to the attention of the judge . . . in a non-jury case, before the judgment is
signed, shall be deemed to have been waived by the party seeking reversal
on such account. . . .

TEX. R. CIV. P. 90; see also Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 764-65 (Tex. App.—

Texarkana 2017, pet. dism’d); In re C.S., 264 S.W.3d 864, 872 (Tex. App.—Waco 2008, no

pet.).

When special exceptions are filed, the movant has the burden of obtaining
a hearing on its special exception and a written ruling. If the record does
not contain a ruling on the special exceptions, the movant fails to preserve
any complaint for appellate review.

Hartwell, 528 S.W.3d at 765 (citations omitted).

In the Interest of C.A. and C.A., Children Page 14
 The record does not reflect that a special exception was filed to the Third Amended

Petition, nor does the record reflect a written ruling on the special exception to the Second

Amended Petition. Mom’s issue III.1, to the extent it challenges procedural deficiencies

in the pleadings, is overruled.

Mom also alleges that the trial court erred in failing to make specific factual

findings regarding the conclusion that there was a history or pattern of neglect of the

children on her part. The failure of a trial court to make a factual finding does not require

reversal if “the record before the appellate court affirmatively shows that the complaining

party suffered no injury.” In re S.R.O., 143 S.W.3d 237, 242 (Tex. App.—Waco 2004, no

pet.). An appellant does not suffer an injury when the circumstances of the case are such

that the appellant is not required to guess the reason or reasons the court ruled against

the appellant. Id. The circumstances in this case do not indicate that Mom must guess

the rationale for the court’s ruling, and the court’s failure to make a more specific finding

of fact has certainly not prevented Mom from presenting her case to this Court. Id.; see

TEX. R. APP. P. 44.1.

Mom additionally complains in a number of places in her brief that neither Dad

nor others filed a complaint against her with child protective services. Making such a

complaint is not a prerequisite to requesting a modification of the terms of a custody

agreement, nor does the failure to make a complaint preclude the trial court from

modifying a custody arrangement. As Mom presents no authority to support her claim,

this issue is likewise waived.

In the Interest of C.A. and C.A., Children Page 15
 2. Material and substantial change. Mom argues that Dad did not meet his

burden to show that circumstances had materially or substantially changed since entry

of the final decree of divorce and that modification would be in the best interest of the

children. Mom additionally asserts that the trial court erred in finding that circumstances

had materially or substantially changed and that modification was in the best interest of

the children. Mom asserts that there was insufficient evidence to support findings in that

regard.

The burden of proof for the modification of a suit affecting the parent/child

relationship is by a preponderance of the evidence. TEX. FAM. CODE ANN. § 105.005; see

also Trammel v. Trammel, 485 S.W.3d 571, 578 (Tex. App—Houston [1st Dist.] 2016, no

pet.). Under this standard, the factfinder need only determine that the movant’s version

of the facts is more likely than not true. In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).

The existence of a material and substantial change in circumstances is a threshold

determination in a modification proceeding. In re A.L.E., 279 S.W.3d 424, 428 (Tex.

App.—Houston [14th Dist.] 2009, no pet.). There are no rigid or definite guidelines

regarding what constitutes a material and substantial change in circumstances, and each

case must be determined according to the facts and circumstances of that particular case.

Hamilton v. Maestas, No. 07-18-00320-CV, 2020 WL 1696807, at *3 (Tex. App.—Amarillo

Apr. 7, 2020, no pet.) (mem. op.). “A non-comprehensive list of material changes . . . can

include (1) marriage of one of the parties, (2) poisoning of the child’s mind by one of the

parties, (3) change in the home surroundings, (4) mistreatment of the child by a parent or

In the Interest of C.A. and C.A., Children Page 16
stepparent, or (5) a parent’s becoming an improper person to exercise custody.” In re

A.L.E., 279 S.W.3d at 428-29.

It is undisputed that after the divorce, Dad remarried and Mom remarried twice.

There was, therefore, sufficient evidence for the trial court to determine that there was a

material and substantial change in circumstances. Mom’s Issue II.1 is overruled.

3. Best interest of the children. While the existence of a material and

substantial change in circumstances is a threshold requirement, the primary

consideration in determining issues of conservatorship and possession of and access to a

child is what is in the child’s best interest. TEX. FAM. CODE ANN. § 153.002; In re F.R.N.,

2019 WL 3801630, at * 4; In re H.D.C., 474 S.W.3d 758, 764 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). The court may impose restrictions on a parent’s possession or access,

such as the imposition of supervised visitation as in this case, if the restriction does “not

exceed those that are required to protect the best interest of the child.” TEX. FAM. CODE

ANN. § 153.193. The trial court does not abuse its discretion if the record contains

evidence to support a finding that a restriction is in the child’s best interest. In re H.D.C.,

474 S.W.3d at 764.

The testimony and report of the court-appointed psychologist, who the trial court

found credible, reflect that Mom engaged in high-risk behavior, indicating poor

judgment and lack of boundaries, that adversely affected her ability to ensure the

physical and emotional wellbeing and safety of the children. The psychologist

recommended that Mom’s visits with the children continue to be supervised and that her

electronic communications with them continue to be monitored.

In the Interest of C.A. and C.A., Children Page 17
 The court-appointed psychologist interviewed the children who were happy

seeing their Mom at the supervised visitation facility because they had her undivided

attention.

The court-appointed psychologist noted no concerns with Dad or Dad’s second

wife.

After reviewing the record, we hold that the trial court had sufficient evidence

before it to determine by a preponderance of the evidence that modification of custody

was in the best interest of the children and, based upon its discretion and the applicable

law, the trial court did not err in applying this discretion. We overrule Mom’s Issues II.2,

II.3, III.1, III.2, III.3, III.4, IV.1, IV.2, IV.3, and IV.4.

D. Attorney’s Fees. Mom argues that the evidence was legally and factually

insufficient to support the trial court’s finding regarding the amount and reasonableness

of attorney’s fees.

Dad’s attorney testified, without objection, at the enforcement hearing about her

fees for both the enforcement and the modification actions. The chart she prepared

explaining the fees and expenses was admitted without objection.

“The family code allows the trial court to award attorneys’ fees in suits affecting

the parent-child relationship.” In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009, no

pet.); see TEX. FAM. CODE ANN. § 106.022. Testimony from a party’s attorney about their

attorneys’ fees is taken as true as a matter of law if the testimony “is not contradicted by

any other witness and is clear, positive, direct, and free from contradiction.” In re B.J.W.,

2018 WL 3322882, at *2. Because the testimony of Dad’s attorney was uncontradicted, the

In the Interest of C.A. and C.A., Children Page 18
trial court did not abuse its discretion in awarding attorney’s fees in the amount awarded

in its final order.

In Issue VIII.3, Mom additionally argues that “[t]he trial court erred in its

conclusions of law 13 and 14 regarding the classification and collectability of all

judgement [sic] amounts.” Mom appears to argue that the trial court erred by including

the attorney’s fees and expenses in the judgments as child support. However,

conclusions of law 13 and 14 refer to the inclusion of statutory interest as part of the final

money judgment, not attorney’s fees.

We overrule Mom’s Issues VIII.2 and VIII.3.

VII. Conclusion

Having overruled Appellant’s issues and denied Appellee’s motions, we affirm

the judgment of the trial court.

MATT JOHNSON
Justice

Before Chief Justice Gray,*
Justice Neill, and
Justice Johnson
Judgment affirmed
Opinion delivered and filed February 3, 2021
[CV06]
*(Chief Justice Gray concurs in the judgment of the Court which affirms the trial court’s
judgment. A separate opinion will not issue.)

In the Interest of C.A. and C.A., Children Page 19