Affirmed and Memorandum Opinion filed July 27, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00109-CV
D. A. I., Appellant
V.
J. P. L., Appellee
On Appeal from the 425th Judicial District Court
Williamson County, Texas
Trial Court Cause No. 09-3158-F425
MEMORANDUM OPINION
In this appeal from a final order modifying conservatorship of the parties’
minor child, Mother argues that the trial court erred in failing to loosen a geographic
restriction on her choice of the child’s primary residence and instead granting
Father’s cross-petition to be given the exclusive right to choose the child’s primary
residence. See TEX. FAM. CODE ANN. § 109.002(b). Mother also contends that the
trial court erred in limiting the time for the parties to present their cases. We affirm.1
I. BACKGROUND
When Mother and Father divorced in 2010, Ana2 was four years old. Ana’s
parents were named joint managing conservators, with Mother having the exclusive
right to designate Ana’s primary residence, which was to be in either Williamson
County or Hays County. Eight years later, Mother petitioned the trial court to modify
the original orders to increase Father’s child-support payments and to allow Mother
to designate Ana’s primary residence in Williamson County or any county
contiguous to Williamson County. Father filed a counter-petition in which he asked
for the exclusive right to designate Ana’s primary residence, with the child’s
residence restricted to Williamson County, and for child support to be paid by
Mother.
At trial, each side was given thirty-five minutes to present its case. Mother
testified that Ana attends Jarell Independent School District and has good grades and
lots of friends. Ana runs track and plays volleyball, basketball, and softball. Until
2017, Ana played “Select” softball, where Father was her assistant coach, and she
raised and exhibited farm animals.
In January 2018, when Mother was expecting her third child, she began
looking in the Jarrell school district for a new home large enough for her growing
family and with sufficient acreage to allow Ana to continue raising and showing
1
The case was transferred to this Court from the Third Court of Appeals in Austin pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001. Because this is a transfer case, we apply the precedent of the Third Court of Appeals to
the extent it differs from our own. See TEX. R. APP. P. 41.3.
2
To increase readability while protecting the child's identity, we refer to her by a
pseudonym.
2
farm animals. She was unable to find affordable acreage in Williamson County.
Mother had a “handshake deal” in March 2018 to buy a one-acre property in Jarrell,
but the seller changed his mind in July 2018.
In November 2018, Mother sold her home in Jarrell, and for the next month
and a half, Ana lived with her Mother, her stepfather, and Mother’s two other
children in a travel trailer in Jarrell so that Mother could try to keep Ana in the Jarrell
school district.
The family next moved to the Georgetown home of Mother’s parents and
grandmother. There, Ana, her mother, her stepfather, and Mother’s two other
children share two bedrooms among the five of them. As a result of the move to
Georgetown, the Jarell school district considers Ana a transfer student, and Ana must
reapply for transfer status each year.
Although Mother’s parents’ home has acreage that would allow Ana to
resume raising farm animals, Mother does not want to continue living with her
parents forever, so she bought land in the city of Bertram in neighboring Burnet
County. The property is about 4.5 miles outside of Williamson County. When the
case was tried in August 2019, Mother had not begun constructing a house on the
Bertram property, choosing instead to await the ruling on the cross-petitions for
modification. If Mother moved to Bertram, Ana would attend a school in Burnet
Consolidated Independent School District; one of Mother’s other children already
attends school in Bertram. Mother testified that the school in Burnet County is
comparable to Ana’s Jarrell school, but it is about 39.8 miles from Father’s home in
Georgetown.
The agreed possession schedule at that time provided that one week Father
would have Ana from after school on Thursday until Monday morning, and the next
week he would have her from after school on Wednesday until Friday morning, but
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Mother’s proposed modification would eliminate Father’s Wednesday-to-Friday
possession. Mother testified that she never discussed the proposed move with Father
because she knew he would not be happy. She stated her communications with him
were “[v]ery minimal” because she usually talks to Father’s wife.
Mother did not know what she would do if the geographic restriction were not
modified to allow her to designate Ana’s primary residence in a county adjacent to
Williamson County, but she stated she probably would rent an apartment in Jarrell
until she figured something else out.
Father testified that Ana’s current school is a fifteen-minute drive from his
home in Georgetown, but the school in Burnet County is fifty-five minutes away.
Under Mother’s proposed modification, Ana would have to travel an additional hour
to Father’s house during his possession weekends, and she would have to get up an
hour earlier to return to school on Monday morning. Father stated that he currently
takes Ana to volleyball practice at 6:45 a.m., but he would not be able to do so if
Ana attended school in Burnet County.
Father stated that he intends to keep Ana in Jarrell Independent School
District, and if she could not remain there as a transfer student, Father would buy a
house in that school district. He explained that Ana plays basketball and softball at
the Georgetown Rec Center, where he continues to act informally as an assistant
coach for Ana’s teams. Father also stated that he could provide land for Ana to
continue raising animals for exhibition by using his mother’s ten acres or his uncle’s
thirty acres; both properties lie between Georgetown and Hutto, that is, in
Williamson County. Mother and Father disagreed about whether the rules under
which Ana exhibits animals allow her to raise an animal on land where she does not
reside.
4
Finally, Father testified that his extended family lives in Williamson County,
and Mother’s extended family lives either in Williamson County or in Austin; the
only family in Burnet County is the family of Mother’s husband. Ana’s pediatrician,
dentist, and allergist also are located in Williamson County.
After both parties rested, the trial court spoke privately to Ana to determine
her wishes.3 Neither parent asked that a record be made of the interview.
The trial court denied Mother’s petition and granted Father most of the relief
he requested in his counter-petition. Father was given the exclusive right to designate
Ana’s primary residence, which was restricted to Williamson County, and Mother
was ordered to pay child support. Mother’s motion for new trial was overruled by
operation of law.
In her first two appellate issues, Mother challenges the trial court’s ruling
denying her petition to modify the geographical restriction and granting Father’s
requested modification of conservatorship. In her third issue, she challenges the trial
court’s limitation of the time for each side to present its case.
II. MODIFICATION OF CONSERVATORSHIP
Where, as here, no findings of fact and conclusions of law were issued or
requested, we presume the trial court made all the findings necessary to support the
judgment. See Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017)
(per curiam). A party may rebut the presumption by demonstrating that the record
evidence does not support a presumed finding. Id.
The presumed findings in this case are those required by statute: a trial court
may modify an order specifying the terms and conditions of conservatorship if the
modification would be in the child’s best interest, and (1) the circumstances of the
3
See TEX. FAM. CODE ANN. § 153.009.
5
child, a conservator, or other party affected by the order have materially and
substantially changed since the earlier of the date of the order’s rendition or the date
of the signing of a mediated or collaborative law settlement agreement on which the
order is based; (2) the child is at least twelve years old and has expressed to the court
in chambers the name of the person the child prefers to have the exclusive right to
designate the child’s primary residence; or (3) the conservator with the exclusive
right to designate the child’s primary residence has voluntarily relinquished the
primary care or possession of the child for at least six months, unless the
relinquishment was during the conservator’s military deployment, military
mobilization, or temporary military duty. TEX. FAM. CODE ANN. § 156.101.
When reviewing an order modifying conservatorship, we apply the abuse-of-
discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial
court abuses its discretion when it acts arbitrarily or unreasonably, without reference
to guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam). The trial court does not abuse its discretion so long as some substantive
and probative evidence supports the trial court’s decision. Zeifman v. Michels, 212
S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).
To apply the abuse-of-discretion standard, we ask, first, whether the trial court
had sufficient evidence on which to exercise its discretion, and second, whether the
trial court erred in applying its discretion. Id. at 588. Under this standard, legal and
factual insufficiency are not independent grounds for reversal but instead are
relevant factors in answering the first question. Id. at 587.
To determine whether the evidence of a fact is legally insufficient, we review
the record in the light most favorable to the challenged finding, crediting evidence
supporting the finding if a reasonable factfinder could do so, and disregarding
contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson,
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168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient to support a
finding of fact if (a) there is a complete absence of supporting evidence, (b) the court
is barred by rules of law or of evidence from the only evidence offered to prove the
fact, (c) there is no more than a scintilla of evidence to prove the fact, or (d) the
evidence conclusively establishes the opposite of the fact. Id. at 810. When
reviewing for factual sufficiency, we consider all of the evidence in a neutral light
to determine whether the finding is so against the great weight and preponderance
of the evidence as to be clearly wrong and manifestly unjust. See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).
Under any standard of review, the factfinder is the sole judge of the witnesses’
credibility and the weight to be given to their testimony. N.E. Indep. Sch. Dist. v.
Riou, 598 S.W.3d 243, 255 n.50 (Tex. 2020).
Having established the statutory requirements and standard of review
applicable to orders modifying conservatorship, we begin our analysis with Mother’s
second issue, in which she argues that the trial court abused its discretion in granting
Father’s proposed modification. If Mother fails to establish that the trial court abused
its discretion in this respect, then it will be unnecessary to address Mother’s first
issue, in which she argues that the trial court’s failure to grant her requested
modification was an abuse of discretion because she supported her request with
legally and factually sufficient evidence.
A. Material and Substantial Change of Circumstance
Mother first contends that Father failed to prove a material and substantial
change of circumstance. She asserts that the trial court lacked sufficient information
on which to exercise its discretion because Father failed to offer evidence of the
conditions that existed when the prior conservatorship order was rendered and to
demonstrate the material and substantial changed circumstances existing at the time
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of the modification hearing. See Zeifman, 212 S.W.3d at 589; Ceniseros v. Rychlik,
No. 03-17-00532-CV, 2018 WL 4265679, at *4 (Tex. App.—Austin Sept. 7, 2018,
no pet.) (mem. op.); see TEX. FAM. CODE ANN. § 156.101 (grounds for modification
of conservatorship, possession and access, or determination of residence).
Here, however, Father was not required to prove a change of circumstance,
because both Mother and Father asserted in their respective pleadings that “[t]he
circumstances of the child, a conservator, or other party affected by the order to be
modified have materially and substantially changed since the date of the rendition
of the order to be modified.” Under the law applicable to this case, such an allegation
is a judicial admission of a material and substantial change. See, e.g., In re A.L.H.,
515 S.W.3d 60, 81 n.5 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); Filla v.
Filla, No. 03-14-00502-CV, 2016 WL 4177236, at *4 (Tex. App.—Austin Aug. 5,
2016, pet. denied) (mem. op.) (“If an appellant filed her own petition to modify in
the trial court and alleged a material and substantial change in circumstances, her
allegation constitutes a judicial admission that a material and substantial change
occurred.”).4 A judicial admission is conclusive on the party making it, and it both
relieves the party’s adversary of the need to prove the admitted fact and bars the
party making the admission from disputing it. See Gevinson v. Manhattan Constr.
Co. of Okla., 449 S.W.2d 458, 466 (Tex. 1969).
These mutual judicial admissions conclusively establish that the
circumstances of the child, a conservator or other party affected by the previous
conservatorship order materially and substantially changed after the prior
conservatorship order was rendered in 2010.
4
A party who files a motion to modify the terms of conservatorship on or after September
1, 2021, cannot “be considered on that basis alone to have admitted a material and substantial
change of circumstances regarding any other matter.” Act of May 19, 2021, 87th Leg., R.S., H.B.
851, § 2 (to be codified as TEX. FAM. CODE § 156.007).
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B. Child’s Best Interest
Mother next contends that, “[t]he issue of the geographical restriction aside,”
no evidence supports a finding that the modification of conservatorship is in Ana’s
best interest. By this, we understand Mother to challenge the implied finding that it
is in Ana’s best interest for Father to be the joint managing conservator with the
exclusive right to designate Ana’s primary residence.
A trial court has wide latitude in determining a child’s best interest. Gillespie,
644 S.W.2d at 451. Factors a trial court may consider include, but are not limited to,
• the child’s desires;
• the child’s present and future emotional and physical needs;
• any present or future emotional or physical danger to the child;
• the parties’ parental abilities;
• the programs available to assist individuals seeking custody to promote the
child’s best interest;
• the parties’ plans for the child;
• the stability of the home;
• the acts or omissions of a parent, which may indicate that the existing parent-
child relationship is not a proper one; and
• any excuse for a parent’s acts or omissions.
Zeifman, 212 S.W.3d at 595 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976)). The factfinder is not required to consider every factor, and although no single
one is controlling, the presence of a single factor may, in some instances, be
sufficient to support a best-interest finding. Ceniseros, 2018 WL 4265679, at *5.
Of these factors, the evidence shows that Mother has the less stable home.
Mother sold her home when her family outgrew it and began looking for a property
9
“of at least two acres, just over twice the size of the property they were selling.”
Unable to afford suitable property in Williamson County, her family of five first
shared a travel trailer and now shares two bedrooms in the home of Mother’s parents.
Mother then bought land in Burnet County with the intention of moving there, but
there is not a house on the property, and Mother “made no plans to build a home,
during the pendency of the case.” Mother also admitted that she did not know what
she would do if the geographic restriction were not modified to allow her to
designate a primary residence for Ana in Burnet County, but Mother stated she
would probably rent an apartment in Jarell until she figured something else out. This
would be Mother’s third interim housing since selling her home.
Regarding the parties’ plans for Ana, Father’s plan arguably offers Ana
greater continuity. Father would keep Ana in the same school district that she has
always attended, whereas Mother would move Ana to a new school district. In
addition, under the pre-existing possession schedule, Ana stayed with Father four
nights of a regular week in the school year, then two nights of the next week, whereas
under Mother’s plan, Ana’s time with Father would have been reduced to four nights
on alternating weeks.
These factors are some evidence of a substantive and probative character
supporting the trial court’s decision; thus, we conclude that the trial court did not
abuse its discretion in modifying the conservatorship order to give Father the
exclusive right to designate Ana’s primary residence. We overrule Mother’s second
issue.
In light of our disposition of this issue, it is unnecessary to consider Mother’s
first issue, in which she challenges the trial court’s denial of her request to modify
the geographical restriction to include the counties bordering Williamson County.
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III. TIME LIMITS AT TRIAL
In her third issue, Mother challenges the time limitation on the presentation
of her case. After opening arguments on the trial of the issues, the trial court
informed the parties that each side would have thirty-five minutes to present its case,
adding, “If we get to the end of that hour and ten minutes and I feel like I need to
hear more, I will let you all know.” The trial court did not extend the time limits.
On appeal, Mother acknowledges that the trial court has the authority to
“exercise reasonable control over the mode and order of examining witnesses and
presenting evidence so as to . . . avoid wasting time.” TEX. R. EVID. 611(a)(2). She
nevertheless asserts that the trial court’s authority “does not extend to a sua sponte
restraint of the time allowed for a hearing,” at least “without the prior agreement or
knowledge of the parties.” She cites no authority supporting this assertion.
We conclude that Mother failed to preserve this complaint. If a party has a
complaint about the time limits imposed by the trial court, it is “incumbent upon [the
complaining party] to make its objection known at the time.” J.E. v. Tex. Dep’t of
Family & Protective Servs., No. 03-14-00164-CV, 2014 WL 4536569, at *4 (Tex.
App.—Austin Sept. 10, 2014, no pet.) (mem. op.) (quoting State v. Reina, 218
S.W.3d 247, 254 (Tex. App.—Houston [14th Dist.] 2007, no pet.)) (alteration in
original); see TEX. R. APP. P. 33.1(a) (preservation of appellate complaints).
Mother’s counsel neither objected when the time restraint was imposed nor
requested additional time after using the time allotted.
We overrule Mother’s third issue.
IV. CONCLUSION
We conclude that the trial court did not abuse its discretion in modifying the
prior conservatorship order to appoint Father as the joint managing conservator with
11
the exclusive right to designate Ana’s primary residence. Mother’s remaining issues
either are unnecessary to our disposition of this appeal or were not preserved in the
trial court. Thus, we affirm the trial court’s final order modifying conservatorship of
the parties’ minor child.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Spain and Wilson.
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