In re K.S.F.

IN THE INTEREST OF K.S.F. AND K.D.F., CHILDREN

No. 05-21-01030-CV

Court of Appeals of Texas, Fifth District, Dallas

February 3, 2023

On Appeal from the 470th Judicial District Court Collin County Texas Trial Court Cause No. 470-55984-2013

Before Justices Partida-Kipness, Nowell, and Wright, J. ^[1]

OPINION

CAROLYN WRIGHT JUSTICE.

In this suit affecting the parent-child relationship, Father challenges the trial court's order denying his second request for modification of prior orders affecting his possession and access to his sons, K.S.F. and K.D.F. In a single issue, Father urges this Court to reverse the trial court's order and remand the case for further proceedings. For the reasons set forth herein, we reverse the trial court's order and remand.

Background

By an agreed final decree of divorce, Mother and Father's marriage was dissolved on November 6, 2015. At that time K.S.F. and K.D.F. were five and three years old respectively. They were enrolled in a daycare located on Plano Parkway in the City of Plano. Initially, Father had an expanded standard possession schedule. Thereafter, in 2018, Father sought and obtained a modification of the parent-child relationship. As a result, Mother and Father now share a week-on/week-off possession schedule.

Pursuant to the November 6, 2015 agreed final divorce decree and the 2018 modification order, Mother has the exclusive right to designate the children's primary residence within a 25-mile radius of the daycare they attended at the time. Decisions concerning the children's education are to be made jointly by Mother and Father.

For five years following the divorce, Mother and Father lived in close proximity to each other in Plano. The children, both of whom have learning challenges, attended an elementary school in the Plano Independent School District.

In 2021, Mother remarried, and she and the children moved to her new husband's home in the Lewisville area.^[2] The new home is located within the existing orders' 25-mile allowance. Thereafter, without Father's consent, Mother withdrew the children from the Plano elementary school they had attended since kindergarten and enrolled them in the Lewisville Independent School District. At that time, the children were about to turn nine and eleven years of age.

On June 22, 2021, Father filed a First Amended Petition to Modify ParentChild Relationship alleging there had been a material and substantial change in circumstances and that his requested modification was in the best interest of the children. The modification Father sought was either to be named the conservator with the exclusive right to designate the children's primary residence or to have the children re-enrolled in their Plano elementary school.

The trial court conducted a bench trial on Father's modification petition on October 28, 2021, at which the trial court took judicial notice of its memorandum ruling on Father's prior modification petition. It gave Mother the exclusive right to designate the children's residence within a 25-mile radius, and both parents were given the right to make decisions concerning the children's education. During the trial, Father testified that, while he knew Mother could move and designate the children's primary residence within a 25-mile radius, he never anticipated that she could or would change their school without his agreement. Father also testified about how Mother's move has greatly increased the amount of time he and the children spend in the car during his periods of possession, and how it creates issues with respect to the children's participation in extracurricular activities. In addition, Father testified about the impact the travel time has had on the children's completing their homework and the lack of sleep they get. He stated they have to wake up at 5:45 a.m. and often do not get home until after 9 p.m. Father expressed his belief that the children's former school outperforms their current school and introduced evidence the Plano school has an A rating, while the Lewisville school has a B rating. Father called Mother to testify during his case-in-chief and then rested.

When Father rested, Mother moved for judgment arguing that no material and substantial change in circumstances had occurred because the parties anticipated the possibility of Mother's move when they entered the agreed decree of divorce allowing her to designate the primary residence within a 25-mile radius. After hearing argument of counsel, the trial court granted Mother's motion for judgment.

Thereafter, on November 9, 2021, the trial court entered a final order on Father's petition to modify. The order states, in part, Mother's "Motion for Directed Verdict is GRANTED"^[3] and Father's "First Amended Petition to Modify Suit Affecting Parent Child Relationship is denied."^[4] This appeal followed.

Discussion

I. Standard of Review

Because a trial court enjoys wide latitude in determining the best interests of a minor child, we review a trial court's decision on a motion to modify under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or if it acts without reference to any guiding principles. In re B.M., 228 S.W.3d 462, 464 (Tex. App.-Dallas 2007, no pet.). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error, but they are relevant factors in assessing whether an abuse of discretion has occurred. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.-Dallas 1999, no pet.). In determining whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and, if so, whether it erred in the exercise of that discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.-Dallas 2011, no pet.). A clear failure by the trial court to analyze or apply the law to the facts correctly is an abuse of discretion. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). When, as here, the trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re B.N.B., 246 S.W.3d 403, 406 (Tex. App.- Dallas 2008, no pet.).

II. Modification of Conservatorship, Support, or Possession of Children

Under section 156.101 of the family code, a trial court may modify conservatorship, support, or possession of and access to a child if doing so is in the best interest of the child and the circumstances of the child, a conservator, or another party affected by the existing order have materially and substantially changed since the rendition of the existing order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A). There are no rigid or definitive guidelines governing the determination of whether a material and substantial change of circumstances has occurred. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Some examples of material changes include (1) remarriage by a party, (2) poisoning of the child's mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or stepparent, and (5) a parent's becoming an improper person to exercise custody. Id. at 428-29. To prove that the necessary change has occurred, the petitioner must demonstrate what conditions existed at the time the prior order was rendered and what material conditions have changed in the intervening period. Agraz v. Carsley, 143 S.W.3d 547, 554 (Tex. App.-Dallas 2004, no pet.). If the circumstance was sufficiently contemplated at the time of an original agreement, its eventuality is not a changed circumstance, but instead an anticipated circumstance that cannot be evidence of a material and substantial change in circumstances. Smith v. Karanja, 546 S.W.3d 734, 740 (Tex. App.-Houston [1st Dist.] 2018, no pet.); Kelly v. Tex. Dep't of Family &Protective Servs., No. 03-11-00670-CV, 2012 WL 5476840, at *5 (Tex. App.-Austin Nov. 9, 2012, no pet.) (mem. op.).

On appeal, Father contends that the trial court abused its discretion in granting Mother's motion for judgment and in denying his request for modification. He asserts there are two events that constitute material and substantial changes in circumstances: namely, Mother's move to the Lewisville area, and Mother's unilateral decision to change the school in which the children are enrolled.

At the trial on Father's amended modification petition, Father acknowledged that Mother had the right to move. However, he contended that his complaint is that Mother did not have the right to change schools and, in so doing, she caused the occurrence of a material change in circumstances that adversely affects the children. Father also conceded that aside from the educational decision, "The other things were contemplated." Thus, we will not independently address whether Mother's move to the Lewisville area itself could constitute a material and substantial change in circumstances. Instead, the crux of the matter presented here is whether Mother had the right to unilaterally decide which school the children would attend given the existing modification order requiring the consent of both parents with respect to education decisions. The specific orders in place, when the trial court considered Father's amended modification petition, gave Mother the exclusive right to designate the primary residence of the children within a 25-mile radius and required the consent of both parents with respect to education decisions. If she had the exclusive right to make education decisions, there could be no substantial...