In the Matter of the Marriage of Michael Bentrott and Courtney Bentrott and in the Interest of B.A.B. and M.L.B., Children v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00363-CV
IN THE MATTER OF THE MARRIAGE OF MICHAEL BENTROTT AND
COURTNEY BENTROTT AND IN THE INTEREST OF B.A.B. AND M.L.B., CHILDREN
On Appeal from the 455th District Court
Travis County, Texas
Trial Court No. D-1-FM-21-001795, Honorable Daniella DeSeta Lyttle, Presiding
October 11, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Courtney Bentrott, appeals from the trial court’s Final Decree of Divorce
dissolving her marriage to Appellee, Michael Bentrott. By her original and supplemental
brief, she presents the following issues challenging the trial court’s designation of joint
managing conservatorship and Michael’s possession and supervision of their children:1
1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should
a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this
appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P. 41.3.
(1) the trial court abused its discretion by rendering a step-up possession and
access schedule at the final hearing;
(2) alternatively, the trial court abused its discretion in rendering a step-up
possession and access schedule at the final hearing which awards Michael
unsupervised possession and access and which included the children’s bill
of rights in the order;
(3) the trial court abused its discretion in failing to make a finding of family
violence or awarding her sole managing conservatorship; and
(4) modification is an appropriate remedy for a more conservative schedule that
contemplates the present circumstances affecting the safety and welfare of
the minor children.
We affirm.2
BACKGROUND3
Courtney and Michael married in April 2015, and have two children, a son born in
2018 and a daughter born in 2020. The parties ceased living together in October 2020,
several months after their daughter was born. The event prompting the separation was
Courtney’s discovery of pornography and escort websites Michael left open on his
computer.
Michael admitted he is a sex addict and abuses alcohol. He has been diagnosed
with post-traumatic stress disorder from early childhood sexual abuse, depression, and
anxiety. He testified that during the first six months following the birth of each child, he
viewed pornography and masturbated in the evenings while on “baby duty” “about half a
2 By her amended notice of appeal, Courtney specifies she is not challenging any issues related to
the divorce, property division, attorney’s fees, child support, or any issues contained in Title 1 of the Texas
Family Code.
3 Michael objects to certain factual recitations presented in Courtney’s brief. This Court’s opinion
is based on the facts as presented by the appellate record.
2
dozen times with each child.” After the birth of his son, he described “sitting on the couch,
sleeping baby wrapped in a swaddle in his arm, iPad propped up on the couch
masturbating.” He denied that his sexual stimulation involved his children and attributed
his conduct to consumption of alcohol which impaired his judgment.4
Months before filing for divorce, Michael self-reported incidents of his past sexual
deviance to Courtney. He successfully completed an in-patient treatment program and
was discharged in November 2020. He also employed four therapists to treat his
addictions and began attending Sex Addicts Anonymous.
In March 2021, Michael filed his petition for divorce. A few months later, Courtney
counter-petitioned for divorce and alleged that Michael had engaged in a history or pattern
of family violence as defined in section 71.004 of the Family Code. She requested
appointment as sole managing conservator and asserted that joint managing
conservatorship would not be in the best interests of their children. After several delays,
trial commenced on May 15, 2023.
Dr. Stephen A. Thorne was ordered by the trial court to conduct a psychosexual
evaluation of Michael and to make recommendations for treatment. His report
acknowledged that Michael self-reported a history of drug and alcohol abuse as well as
his obsession with pornography and escorts. He told Dr. Thorne of the incidents in which
he masturbated while holding his children. He expressed that no member of Michael’s
treatment team believes he is sexually attracted to or aroused by minors. Dr. Thorne
noted the inability to know Michael’s motivation for his inappropriate behavior but
4 Michael’s psychologists never diagnosed him with pedophilia or an attraction to children.
3
expressed concern because it was sexually deviant in nature and “reflective of extremely
poor judgment.” He reported that Michael’s excessive consumption of pornography
carries a relatively low risk for future sexual deviancy. Dr. Thorne interviewed Michael’s
therapists and specified in his report that they described Michael in positive terms as
being “active, engaged, and insightful” and progressing in his treatment. He concluded
that Michael is a sex addict but does not have a history of sexually deviant thoughts
involving children. The result of his psychosexual evaluation was that Michael continue
to participate in comprehensive treatment.
The divorce decree appointed the parents joint managing conservators with
Courtney having the exclusive right to designate the primary residence of the children,
then three and five years old. It contained a four-phase modified step-up possession
order which commenced on May 20, 2023, and required Michael to comply with certain
conditions to transition from supervised to unsupervised possession and culminated in a
standard possession and access order.5 Progression through each phase was
conditioned on Michael “following all requirements” “as well as all injunctions.”
The divorce decree also included the following conditions for Michael to transition
through each respective phase as follows:
IT IS ORDERED that MICHAEL BENTROTT’s transition through each
respective phase as outlined are conditioned upon compliance with the
following:
5 Courtney filed a Motion for Temporary Orders and to Stay Enforcement in this Court on January
23, 2024, seeking to suspend the portions of the divorce decree related to conservatorship and custody.
The motion was denied. In re Marriage of Bentrott, No. 07-23-00363-CV, 2024 Tex. App. LEXIS 1237, at
*5 (Tex. App.—Amarillo Feb. 15, 2024, order).
4
1. MICHAEL BENTROTT shall continue treatment with the following
therapists for so long as each applicable therapist recommends
continued treatment:
a. Paul Pope, MA, LPC, CSAT;
b. Nicole Tableriou, LPC, LCDC;
c. Mary Hoofnagle, LPC, PRT, PLLC, and
d. Jessica Warner, MA, LPC.
2. MICHAEL BENTROTT shall continue to participate in meetings of Sex
Addicts Anonymous and shall work through all of the steps.
3. MICHAEL BENTROTT shall refrain from pornographic consumption
during any periods of possession.
4. MICHAEL BENTROTT shall ensure that he does not, in any way, identify
the children when communicating (for sexual purposes) with other
individuals who do not already have some type of relationship with the
children.
5. MICHAEL BENTROTT shall not use the children’s phone, email
account, and/or social media accounts to engage in conversations with
individuals/groups he is seeking sexual encounters with.
6. MICHAEL BENTROTT shall not share his home address with, or invite
to his home, individuals who he is meeting for the sole purpose of sexual
activity.
7. MICHAEL BENTROTT shall utilize accountability software (for all
electronic devices) during his periods of possession of and access of the
children, that will allow selected individuals to receive reports on what
he views on the internet while exercising possession of the children.
Said reports shall be made available to MICHAEL BENTROTT’s Sex
Addicts Anonymous Sponsor, [B.F.], and Sex Addiction Therapist Paul
Pope.
The trial court entered Findings of Fact and Conclusions of Law. The following
findings are relevant to Courtney’s issues pertaining to conservatorship issues:6
6 Michael maintains that Courtney did not identify the findings she is challenging which makes them
binding on this Court. However, a challenge to an unidentified finding may be sufficient if it is included in
the arguments and the challenged findings can be fairly determined from the argument. See generally
5
13. It is in the best interest of the children that MICHAEL BENTROTT and
COURTNEY BENTROTT be appointed joint managing conservators of the
children and that COURTNEY BENTROTT have the right to designate the
children’s primary residence.
14. The Court finds it is in the best interest of the children and in accordance
with section 153.001 of the Texas Family Code, it is the public policy of
Texas, to assure that child[ren] will have frequent and continuing contact
with parents who have shown the ability to act in the best interest of the
child[ren], to provide a safe, stable, and nonviolent environment . . . .
19. The Court finds that it is in the children’s best interest that MICHAEL
BENTROTT continue his treatment with Paul Pope, Nicole Tableriou, Mary
Hoofnagle, and Jessica Warner, with treatment to continue until each
therapist deems appropriate, and continue to participate in Sex Addicts
Anonymous and work through all the steps.
20. The Court finds that it is in the children’s best interest that MICHAEL
BENTROTT participate in the recommendations in Dr. Thorne’s evaluation.
28. The Court finds that the possession and access, including electronic
communication ordered by the Court and contained in the final Decree of
Divorce is in the best interest of the children.
29. The periods of possession vary from the Standard Possession Order,
for the following reasons, which were supported [by] credible evidence,
including expert testimony admitted in support:
a. The Court finds that MICHAEL BENTROTT was previously
ordered to have supervised visitation of and access to the
children;
b. The Court finds that MICHAEL BENTROTT has engaged in
significant amounts of evaluation, therapy, and mental health
treatment with multiple providers during the pendency of the
underlying suit for divorce;
c. The Court finds that MICHAEL BENTROTT has exhibited
significant and substantial progress in his therapeutic and
mental health treatment during the pendency of the underlying
suit for divorce;
d. The Court finds that the possession and access schedule,
including electronic communication, ordered and contained in
Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1992) (citing Calvert, “No Evidence” and “Insufficient Evidence”
Points of Error, 38 TEX. L. REV. 361 (1960)). Courtney’s arguments challenge the findings set forth.
6
the Final Decree of Divorce, which contains several step-up
schedules, with increasing periods of possession and access
for MICHAEL BENTROTT ending in a Standard Possession
Schedule with elections, is in the children’s best interest and
is adequate to protect the best interest of the children,
including their physical health, emotional development,
safety, and well-being.
ANALYSIS
Before addressing Courtney’s issues, we note Michael maintains this Court should
decline review of issues one and four for being inadequately briefed and therefore not in
compliance with Rule 38.1 of the Texas Rules of Appellate Procedure. Under Rule 38.9,
however, this Court is instructed to construe briefing rules liberally. See Anastasi v.
McHorse, No. 03-23-00274-CV, 2024 Tex. App. LEXIS 1681, at *13–14 (Tex. App.—
Austin March 7, 2024, no pet.) (mem. op.) (construing pro se brief liberally, but reasonably
so the right to appeal is not lost by waiver) (citing Lion Copolymer Holdings, LLC v. Lion
Polymers, LLC, 614 S.W.3d 729, 733 (Tex. 2020)). Thus, we disagree with Michael and
will address Courtney’s first and fourth issues.
At the core of Courtney’s complaints is the trial court’s failure to make a finding
that Michael committed family violence. The lack of such a finding is critical to her
arguments. Thus, we will address issue three first to determine if the trial court abused
its discretion in not making a family violence finding and awarding her sole managing
conservatorship.
7
ISSUE THREE—FAILURE TO FIND FAMILY VIOLENCE AND AWARD COURTNEY SOLE MANAGING
CONSERVATORSHIP
Courtney contends that Michael’s sexual proclivities, which he does not deny,
equates to sexual abuse of his children which should have prevented him from being
named a joint managing conservator. She asks this Court to reevaluate the trial court’s
failure to make a finding of family violence. We decline to do so and defer to the trial
court’s evaluation of the evidence.
Family violence means an act by a family member against another family member
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 prohibited conduct.
TEX. FAM. CODE ANN. § 71.004(1). Family violence may also include “abuse” as the term
is defined by section 261.001(1)(E) of the Family Code. Id. at § 71.004(2). Subparagraph
E defines “abuse” as an act or omission of sexual conduct harmful to a child’s mental,
emotional, or physical welfare, including conduct that constitutes sexual abuse of [a]
young child under certain sections of the Texas Penal Code. Id. at § 261.001(1)(E).
During her testimony, Courtney referenced section 21.11 of the Texas Penal Code
to support her contention that Michael’s conduct with his children constituted indecency
with a child.7 We disagree with her statutory interpretation. A person commits the offense
of indecency with a child by contact if he “engages in sexual contact with the child or
causes the child to engage in sexual contact.” TEX. PENAL CODE ANN. § 21.11(a). Section
21.11 defines sexual contact as engaging in the following acts, if committed with the intent
7 Dr. Daphny Ainslie testified Michael’s conduct met the definition of child sexual abuse per the
Centers for Disease Control, but that is not the standard in Texas under the Family Code or the Penal Code.
8
to arouse or gratify the sexual desire of any person: (1) any touching by a person,
including touching through clothing, of the anus, breast, or any part of the genitals of a
child; or (2) any touching of any part of the body of a child, including touching through
clothing, with the anus, breast, or any part of the genitals of a person. TEX. PENAL CODE
ANN. § 21.11(c).
Courtney testified Michael’s conduct was done “purposefully” according to his own
testimony, but she did not identify any evidence satisfying the elements of indecency of
a child.8 When she was asked, “[s]o we have no evidence, none in three days . . . that
he gratified himself as a result of the child or because of his child,” she answered,
“correct.” She testified it would be in the best interests of the children to see Michael only
in a supervised setting. She further testified, hypothetically, that even if Michael had not
committed the sexual acts in his children’s presence, she would still advocate for
supervised visitation based on his behavior involving escorts during fertility treatments,
during pregnancy, and after she gave birth.
Dr. Daphny Ainslie, a forensic evaluator who was court-ordered to conduct a child
custody evaluation and make a recommendation on possession and access, testified
unfavorably to Michael.9 She spoke with Michael’s therapists, reviewed their reports, and
had a brief interview with Michael. While she agreed with Dr. Thorne that Michael’s
conduct was “inappropriate, sexually deviant, and reflective of poor judgment and
8 During cross-examination she was asked, hypothetically, if she considered it sexual abuse for her
child to sleep in a bassinet next to her bed while she pleasured herself. She answered it depended on the
circumstances.
9 The evaluations revealed Michael was a victim of sexual abuse as a minor and hid his sexual
deviancy for years.
9
problematic impulse control issues” and that his conduct was not the product of sexual
attraction to children, her opinion was that Michael had serious impulsivity, was deceitful,
and was a child sexual abuser. She diagnosed him with antisocial personally disorder.
Her recommendation was that Michael have no unsupervised access to the children. She
opined that other experts treating Michael who testified favorably for him were only
working with information he provided. She believed Michael’s conduct with his daughter
was intentional. Ultimately, she did not recommend unsupervised possession until the
children were old enough to report any incidents.
Michael employed four therapists to treat his sex and alcohol addictions. They
testified in his favor as follows:
• Nicole Tableriou treated Michael for substance abuse. She diagnosed him
with PTSD, anxiety and alcohol use disorder in sustained remission—
twelve months or more without alcohol abuse. She acknowledged he sees
multiple counselors and has obtained as much treatment as possible. She
opined Michael did not present a risk to others, including children. She
discounted Dr. Ainslie’s evaluation of Michael after consulting with her for
only twenty-one minutes while she had treated Michael for nineteen months.
• Jessica Warner began counseling Michael in March 2021 about healthy
sexuality and relationships. She testified he attended all his sessions. He
moved into an apartment, was working out, maintaining his employment,
and following the rules for visitation. He described his sobriety as strong.
She assisted him in using dating apps to find a healthy relationship. She
answered “[n]o” when asked if Michael was attracted to children. She
testified she had one conversation with Dr. Ainslie of ten to fifteen minutes
in duration.
• Mary Hoofnagle, a registered play therapist who treated Michael, testified
she provided eye movement desensitization reprocessing (EMDR) therapy,
a form of mental health treatment for sexual abuse suffered by him as a
minor. She explained that addiction is often a response to trauma. She
was questioned on the process of the treatment and confirmed that Michael
was making progress in coping with his past trauma. She disagreed with
Dr. Ainslie’s opinion that Michael “consistently exhibited limited insight into
his own process.”
10
• Paul Pope, a certified sexual addiction therapist, treated Michael for
approximately two and a half years before the final hearing. He testified
Michael’s symptoms for posttraumatic stress disorder and major depressive
disorder had eased. His anxiety disorder remained the same. He answered
“no” when asked if Michael suffered from a paraphilic disorder which
involves expressions of sexuality outside the norm. Michael was attending
a weekly group session to address his sex addiction. He testified Michael
is able to regulate his emotions when he becomes stressed or overwhelmed
and managed those situations in a healthy way rather than through his
addiction. He answered “yes” when asked if Michael was determined and
devoted to “working his way through the therapy to be a better person. He
answered “no” when asked if he had any concerns that Michael’s sex
addiction posed a threat to others. He denied that Michael had any sexual
proclivities toward children. He opined Michael had recovered from
compulsively acting out but recommended continued therapy.
As is evident from Michael’s therapists and Dr. Thorne’s report, Michael’s children
were not the source of his sexual arousal or gratification. None of the experts diagnosed
him with pedophilia. There is no evidence that contact between Michael and his children
was committed with an intent to arouse or gratify himself. He successfully sought in-
patient treatment for his alcoholism and sex addiction and employed four therapists to
treat those addictions. The experts testified he made significant progress and Michael,
despite admitting to a relapse, testified he had been sober for more than 742 days before
the final hearing.
The general manager for Advocate for All,10 who was assigned to supervise
Michael’s periods of possession, testified that visits between Michael and his children
were “splendid” and “without flaw.” Michael was “one hundred percent focused on his
children.” The manager further testified Michael’s behavior did not require any correction
10 He testified one of his employees requested to be taken off Michael’s case when she discovered
that Courtney had been recording conversations on her cell phone in violation of Advocate for All’s policies.
11
or redirection and he constantly managed to provide a “warm, welcoming, soft and gentle
environment” for his children. The evidence showed his children were not nervous or
scared in his presence and Michael was “a calming presence to them.” They smiled upon
seeing him, reached out for hugs, and expressed their love for him.
Absent from the evidence is any indication that Michael engaged in family violence
or abuse as defined by the Family Code or the Penal Code. In deferring to the trial court,
we cannot say it abused its discretion in failing to make a finding of family violence.
Courtney also claims the trial court abused its discretion in naming Michael a joint
managing conservator due to his history of family violence. Section 153.004(b) provides
that a “court may not appoint joint managing conservators if credible evidence is
presented of a history or pattern of past or present child neglect, or physical or sexual
abuse by one parent directed against the other parent, a spouse, or a child, including a
sexual assault . . . . It is a rebuttable presumption that the appointment of a parent as the
sole managing conservator of a child or as the conservator who has the exclusive right to
determine the primary residence of a child is not in the best interest of the child if credible
evidence is presented of a history or pattern of past or present child neglect, or physical
or sexual abuse . . . .” TEX. FAM. CODE ANN. § 153.004(b). Subparagraph (e) provides
that it is a rebuttable presumption that it is not in the best interest of a child for a parent
to have unsupervised visitation with the child if credible evidence is presented of a history
or pattern of past or present child neglect or abuse or family violence. Id. at § 153.004(e).
As discussed supra, there is insufficient evidence to support an entry of a finding
of family violence or a history of family violence. We conclude the trial court did not
12
abuse its discretion in appointing Michael as a joint managing conservator. Issue three
is overruled.
ISSUES ONE AND TWO—ABUSE OF DISCRETION IN ENTERING A STEP-UP POSSESSION ORDER
Courtney maintains the trial court abused its discretion in rendering a step-up
possession and access schedule without any statutory authority and because it relied on
speculation instead of long-standing principles that obligated it to assess the facts as
presented. She maintains the court’s order is not in the children’s best interests and is
further complicated by inclusion of the Children’s Bill of Rights.11 She also claims the
step-up possession order improperly built in a modification order without satisfying the
requirements set forth in section 156.101(a) of the Family Code. We disagree.
A trial court may determine a conservator’s appropriate level of possession and
access within the parameters of sections 153.131(a) and 153.191 of the Family Code
dealing with presumptions in appointing parents as sole, joint, or possessory
conservators. See In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). When a trial court
deviates from the standard possession order, it may consider (1) a child’s age,
developmental status, circumstances, needs, and best interest; (2) the circumstances of
the managing conservator and of the parent named as possessory conservator; and (3)
any other relevant factor. TEX. FAM. CODE ANN. § 153.256. The Family Code encourages
frequent contact between a child and parent following a divorce. See id. at § 153.251(b).
11 The Children’s Bill of Rights is a lengthy list of do’s and don’ts for parents to ensure the well-
being of their children and fairness in conservatorship arrangements.
13
STANDARD OF REVIEW
“The best interest of the child shall always be the primary consideration of the court
in determining the issues of conservatorship and possession of and access to the child.”
TEX. FAM. CODE ANN. § 153.002. A trial court’s determination of what is in the child’s best
interest with respect to the terms and conditions of conservatorship is reviewed for abuse
of discretion. In re J.J.R.S., 627 S.W.3d at 218. We assess the best interest finding by
the factors announced in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
The trial court is in the best position to “observe the demeanor and personalities
of the witnesses and can ‘feel’ the forces, powers, and influences that cannot be
discerned by merely reading the record.” In re J.J.R.S., 627 S.W.3d at 218. In family law
cases, the traditional sufficiency standards overlap with the abuse-of-discretion standard.
In re Maynard, No. 07-23-00202-CV, 2024 Tex. App. LEXIS 4562, at *3 n.3 (Tex. App.—
Amarillo June 26, 2024, no pet.) (mem. op.). To determine whether there has been an
abuse of discretion because the evidence is legally or factually insufficient to support the
trial court’s decision we must determine (1) whether the trial court had sufficient evidence
on which to exercise its discretion and (2) whether the trial court erred in its application of
that discretion. Echols v. Olivarez, 85 S.W.3d 475, 477–78 (Tex. App.—Austin 2002, no
pet.). The traditional sufficiency review comes into play with regard to the first question.
Id. at 478. There is no abuse of discretion “as long as some evidence of a substantive
and probative character exists to support the trial court’s decision.” Zeifman v. Michels,
212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).
14
As previously discussed, Michael’s therapists testified he was progressing with his
treatment and despite the uncertainty of motivation for his inappropriate conduct, the
evidence did not show that the trial court’s step-up possession order was not in the
children’s best interests. Witnesses who supervised Michael with his children described
their visits as “splendid” and “without flaw.” He provided a “warm, welcoming, soft and
gentle environment.” His behavior did not require correction and he was a “calming
presence” to his children. As recommended by his therapists, he continued his course of
treatment and made significant progress. Pope testified that Michael had recovered from
compulsively acting out. There was insufficient evidence questioning Michael’s parenting
abilities. There was also insufficient evidence that the parent-child relationship between
Michael and his children was inappropriate.
Courtney asserts the trial court relied on speculation in entering a step-up
possession order, but the record is replete with evidence of “a substantive and probative
character” to support the trial court’s modified possession order. The Third Court of
Appeals upheld a step-up possession order in In re L.M.M., No. 03-04-00452-CV, 2005
Tex. App. LEXIS 7191, at *6–8 (Tex. App.—Austin Aug. 31, 2005, no pet.) (mem. op.).
Relying on In re C.A.C., No. 07-22-00029-CV, 2022 Tex. App. LEXIS 9110, at *5–6 (Tex.
App.—Amarillo Dec. 14, 2022, no pet.), Courtney argues the step-up possession order
did not contain any enforceable measures or include built-in penalties for Michael’s failure
to comply. We disagree. The trial court imposed very specific conditions and injunctions
for Michael to follow or risk transitioning to less restrictive phases of possession. He was
required to install accountability software on his devices which generated reports to
designated individuals of his internet activity. Logically, if Michael did not comply with all
15
the requirements and injunctions specified, he would be penalized by not transitioning to
the next phase with the ultimate goal of unsupervised possession. The trial court’s order
did provide safeguards and penalties. Courtney’s arguments are not supported by the
record.
The trial court was in the best position to observe the demeanor and personalities
of the witnesses. We find the evidence is legally and factually sufficient to support the
trial court’s exercise of discretion in entering a modified possession order that transitioned
into a standard possession order which is in the children’s best interests. Issues one and
two are overruled.
ISSUE FOUR—MODIFICATION OF CONSERVATORSHIP SCHEDULE
Courtney seeks modification of the divorce decree’s conservatorship
determinations by requesting a “more conservative schedule” that considers the safety
and welfare of the children. A final decree of divorce that resolves custody issues is “res
judicata of the best interests of a minor child as to conditions then existing.” Knowles v.
Grimes, 437 S.W.2d 816, 817 (Tex. 1969). Modification of conservatorship of a child is
proper if it is in the child’s best interest and the circumstances of the child, a conservator,
or other party affected by the order have materially and substantially changed since 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. TEX. FAM. CODE
ANN. § 156.101(a)(1). In the absence of a material and substantial change, the disturbing
influence of litigation should be discouraged. Knowles, 437 S.W.2d at 817.
16
Here, the date the “order” was rendered was May 17, 2023.12 In her first issue,
Courtney argued the step-up possession order included an improper modification order
and constituted an abuse of discretion because of the lack of the material and substantial
change requirements of section 156.101(a). Yet she now seeks modification of the final
divorce decree without satisfying her burden to show a material and substantial change
since the date of the divorce decree. The terms of a divorce decree addressing child
custody continue to be subject to modification. But before this Court may consider
Courtney’s request for a more conservative schedule, a separate modification suit,
pursuant to chapter 156 of the Family Code alleging a material and substantial change
since rendition of the divorce, is required to be filed and ruled on by the trial court. We
overrule issue four.
CONCLUSION
The trial court’s Final Decree of Divorce is affirmed.
Alex Yarbrough
Justice
12 The final decree was not signed until August 8, 2023.
17