in the Interest of K.S.F. and K.D.F., Children

REVERSE AND REMAND and Opinion Filed February 3, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01030-CV
IN THE INTEREST OF K.S.F. AND K.D.F., CHILDREN
On Appeal from the 470th Judicial District Court
Collin County, Texas
Trial Court Cause No. 470-55984-2013
OPINION
Before Justices Partida-Kipness, Nowell, and Wright1
Opinion by Justice Wright
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.
1
The Hon. Carolyn Wright, Justice, Assigned.
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
2
Mother’s new husband does not have any children of his own.
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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 Parent–
Child 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
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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.
3
While the order states Mother’s “Motion for Directed Verdict” is granted, the proper motion when a
plaintiff rests in a bench trial is a “Motion for Judgment.” Joplin v. Borusheski, 244 S.W.3d 607, 610 (Tex.
App.—Dallas 2008, no pet.). Mother referred to her motion as one for judgment when Father rested.
4
On November 22, 2021, Father requested findings of facts and conclusions of law. The trial court did
not issue same, and Father did not file a notice of past due findings of fact and conclusions of law. Thus,
Father waived any complaint on appeal that the trial court failed to file findings in this case. See Ad Villarai,
LLC v. Chan II Pak, 519 S.W.3d 132, 137 (Tex. 2017).
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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.).
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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-
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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
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exclusive right to make education decisions, there could be no substantial and
material change in circumstances following the entry of the existing orders. If she
did not have the exclusive right to make education decisions, her unilateral act of
removing the children from their current school and enrolling them in a different
school without Father’s agreement may be a violation of the existing order.
However, the issue is whether such an act can also support a finding of a material
and substantial change in circumstances and warrant an inquiry as to the best interest
of the children?
Before we resolve that issue, we address Mother’s assertion that Father has
waived appellate review of his complaint. She contends Father failed to address the
sufficiency of the evidence to support the trial court’s presumed finding that
modification would not be in the best interest of the children. Mother asserts this is
an independent basis upon which the trial court could have ruled against Father.
We note that the Texas Supreme Court favors appellate courts reaching the
merits of an appeal whenever reasonably possible. Weeks Marine, Inc. v. Garza,
371 S.W.3d 157, 162 (Tex. 2012). Texas Rule of Appellate Procedure 38.1(f)
provides that an issues statement “will be treated as covering every subsidiary
question that is fairly included.” TEX. R. APP. P. 38.1(f). On appeal, Father asserts
that the trial court abused its discretion by granting Mother’s motion for judgment.
To the extent the trial court’s judgment could have been grounded on a finding
against Father on the best interest statutory element required for modification, we
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conclude his asserted issue is sufficiently broad to encompass same. See Mitschke
v. Borromeo, 645 S.W.3d 251, 261–62 (Tex. 2022) (courts are to interpret rules
reasonably, yet liberally, so that the right to appeal is not lost by imposing
requirements not absolutely necessary to affect the purpose of a rule). Thus, we
decline to resolve this appeal on the basis of waiver and will proceed to resolve the
issue presented on the merits.
In a conservatorship modification action, a threshold inquiry of the trial court
is whether the moving party has met the burden imposed upon him of showing a
material and substantial change in circumstances; otherwise, the trial court must
deny the motion to modify. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—
Austin 2006, pet. denied). And a material and substantial change in circumstances
must be proved before inquiry is made into the best interest of the child. Child v.
Leverton, 210 S.W.3d 694, 698 (Tex. App.—Eastland 2006, no pet.).
We recognize the general rule that we are not entitled to look to any comments
that the judge may have made at the conclusion of a bench trial as being a substitute
for findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716 (Tex.
1984). But we may look to the entire record to determine whether the trial court
abused its discretion in impliedly finding there had been no material and substantial
change in circumstances and making a determination on the best interest of the
children. See In re A.D.T., 588 S.W.3d 312, 316–17 (Tex. App.—Amarillo 2019,
no pet.).
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The record establishes Father asserted Mother did not have the right to change
the children’s school without his agreement and in doing so she caused there to be a
material and substantial change in circumstances. The trial court took judicial notice
of its memorandum ruling on Father’s prior modification request in which it ruled
that decisions concerning the children’s education are to be made jointly by Mother
and Father. The undisputed evidence established the children were enrolled in the
Plano elementary school when the existing order was rendered, Mother did not seek
Father’s consent to move the children from the Plano Independent School District to
the Lewisville Independent School District, and Father is against the move. When
Father rested his case, Mother’s attorney moved for judgment on her behalf. In
doing so, Mother’s attorney stated:
It is my position, Your Honor, that anything [Father] talked about and
complained about was obviously reasonably anticipated because guess
what? She had the right to move 25 miles as the crow flies from that
address. As a result thereof, she would be able to change schools, et
cetera, as the [Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El
Paso 2002, no pet.)] case points out. It seems to be the controlling case
. . . . It is our position that she had the right to enroll in these schools
because she has the right to establish the primary residence. [Father]
gave her that right. [Mother] took the right. And as a result thereof,
she gets to enroll them in a new school.
Thus, Mother’s asserted basis for judgment in her favor rested solely on the legal
effect of the earlier orders and undisputed evidence with respect to same. And the
trial court confirmed this basis for Mother’s motion prior to ruling on same:
The Court: . . . [S]o let me circle back to what’s before the Court at this
time. You asked for a directed verdict that there has been no material
and substantial change in circumstances since 2018 and that the move
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was contemplated in the 2015 agreed decree and the 2018 modification
order. And if the Court were to grant a modification based on mother
exercising the rights that were awarded to her, that would be an abuse
of discretion. Am I understanding what you’re asking?
[Mother’s counsel]: Yes, Your Honor.
It is apparent from the record as a whole, the issue presented to the trial court was
whether there had been a material and substantial change in circumstance as a result
of Mother’s decision to enroll the children in a school within the Lewisville
Independent School District following her move to the Lewisville area. Because the
evidence concerning this issue was undisputed, resolution of this issue required a
determination of the legal effect of the decree and the 2018 modification order.
Accordingly, we review the trial court’s determination concerning the effect of those
earlier orders under a de novo standard of review. Matheus v. Sasser, 164 S.W.3d
453, 457–58 (Tex. App.—Fort Worth 2005, no pet.). And, as stated supra, a clear
failure by the trial court to analyze or apply the law to the facts correctly is an abuse
of discretion. Iliff, 339 S.W.3d at 78.
We recognize that at the time the trial court ruled on Father’s modification
petition, it did not have any guidance from this Court on the precise issue presented
here. Instead, the trial court was faced with potentially conflicting views regarding
whether the exclusive right to designate the primary residence of the child may
import an exclusive right to determine which public school the child will attend. See
In re Cole, No. 03-14-00458-CV, 2014 WL 3893055 (Tex. App.—Austin Aug. 8,
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2014, no pet.) (mem. op.); Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El
Paso 2002, no pet).
In Doncer, the El Paso Court of Appeals observed that one reason for the
Family Code’s recognition that a child has a “primary residence” is because “one
parent must have the ability to determine residency for purposes of public school
enrollment if the parents reside in different districts.” Doncer, 81 S.W.3d at 361.
Mother and the trial court interpreted Doncer to provide that, when the parents live
in different school districts, the parent who is given the right to determine the
primary residence of the child controls the decision on where the child will be
enrolled in public school.5
In Cole, as here, an order vested mother with the exclusive right to designate
the child’s primary residence but made education decisions subject to the agreement
of both parents. In re Cole, 2014 WL 3893055, at *1. In that case, the Austin Court
of Appeals concluded the ability to determine residency for purposes of public
school enrollment does not equate to the power to decide which public school a child
shall attend. Id. at *3. The court recognized that these are separate rights and
concluded the ability to designate the child’s residence does not necessarily give that
5
Prior to announcing its ruling on Father’s modification petition, the trial court stated:
Based on my understanding of the law with regard to primary residence and educational
decisions. I am gonna find that the primary residence - - that the parent with the exclusive
right to designate the primary residence of the children has the right to enroll the children
in the public school based on their primary residence, and nothing in these particular orders
allocates that right any differently.
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parent the exclusive right to choose the public school the child will attend. See id.;
see also In re C.E.H., No. 09-19-00120-CV, 2020 WL 5666081, at *8 (Tex. App.—
Beaumont Sept. 24, 2020, no pet.) (mem. op.) (citing In re Cole, 2014 WL 3893055,
at *3 for proposition that the right to designate the child’s primary residence and to
determine which public school the child may attend are different rights and do not
necessarily lead to the assumption that the conservator granted the exclusive right to
designate the primary residence should in turn have the exclusive right to enroll the
child in school); London v. London, 94 S.W.3d 139, 150 (Tex. App.—Houston [14th
Dist.] 2002, no pet.) (trial court can grant one parent exclusive right to designate
children’s primary residence yet award other parent exclusive right to make
education decisions).
We note that in enacting section 151.001 of the family code, the legislature
specially and expressly recognized various substantive rights and duties of parents.
FAM. § 151.001. Among those identified rights are the right to designate the
residence of the child and the right to make decisions concerning the child’s
education. Id. § 151.001(a)(1), (10). In setting forth these rights under separate and
distinct subsections of section 151.001, the legislature determined that decisions
concerning residency and education are separate rights. Had the legislature intended
to vest the parent with the right to designate the primary residence of the child the
additional right to make education decisions to the exclusion of the other parent, it
would have done so, but it did not.
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Based upon the legislature’s recognition that the right to designate a primary
residence and the right to make decisions concerning the child’s education are
separate rights, we adopt the reasoning of the Austin Court of Appeals in Cole and
hold that the person with the exclusive right to determine the primary residence is
not necessarily given the exclusive right to choose the public school the child will
attend. Cole, 2014 WL 3893055, at *3. Here, these distinct rights have been
allocated differently in the decree and the 2018 modification order. While Mother
has the exclusive right to designate the children’s residence within a 25-mile radius,
Mother and Father share the right to make decisions concerning the children’s
education and must concur in the exercise of that right, as any decision regarding the
children’s education is “subject to the agreement of the other parent conservator.”
Allowing Mother’s right to designate the children’s primary residence to override
Father’s right to make decisions concerning the children’s education would
essentially strip him of a substantive right he was previously granted. Moreover, the
parties’ conflict as to educational matters since the existing orders were entered and
inability to agree is a material and substantial change in circumstances. See In re
C.C.J., 244 S.W.3d 911, 924 (Tex. App.—Dallas 2008, no pet.).
We conclude that Mother’s unilateral decision to change the children’s school,
in contravention of the decree and the 2018 modification order’s express provision
regarding Father’s rights with respect to the children’s education, may violate the
existing orders and constitute a material and substantial change in circumstances.
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Because the record and the applicable law do not support the trial court’s implied
legal conclusion as to the effect of the existing orders, we conclude the trial court
abused its discretion in concluding there had been no material and substantial change
in circumstances.
To the extent the trial court may have concluded there had been a material and
substantial change in circumstances and yet granted Mother’s motion for judgment
because it concluded a modification was not in the best interest of the children,6 we
note that Father presented evidence concerning the hardships the change in their
school enrollment has presented for himself and the children.7 During Father’s case-
in-chief, Mother’s counsel did not cross examine Father, reserving questions until
her case-in-chief, and did not herself present any evidence contradicting Father’s
statements since the court granted her motion for judgment. Given the unique
circumstances presented here and given the paramount concern for the protection of
the best interest of the child, we choose to exercise our broad discretion to remand
this case in the interest of justice. TEX. R. APP. P. 43.3(b).
6
In a bench trial, the trial court may grant a motion for judgment after the plaintiff has rested its case
in chief on both factual and legal issues. Qantel Bus. Sys., Inv. v. Custom Controls Co., 761 S.W.2d 302,
304 (Tex. 1988). While it may be apparent from the record that the motion was granted on a finding that
there had been no material and substantial change in circumstances, a legal determination under the facts
presented here, without findings of fact and conclusions of law, we can not presume the trial court did not
reach the issue of the best interests of the children. See Worford, 801 S.W.2d at 109. Accordingly, we
briefly address it here.
7
Father presented evidence the children have learning challenges, prior to the move they had attended
the same school since kindergarten, and they were moved from a higher rated school to a lower rated school.
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CONCLUSION
We conclude the trial court abused its discretion by impliedly finding there
had been no material and substantial change in circumstances. To the extent the trial
court might have reached the issue of the best interest of the children, we decline to
speculate on the court’s consideration of same and in the interest of justice, we
exercise our broad discretion to remand. Accordingly, we sustain Father’s issue,
reverse the trial court’s order denying Father’s modification petition, and remand the
case for further proceedings consistent with this opinion.
/Carolyn Wright/
CAROLYN WRIGHT
JUSTICE, ASSIGNED
211030F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.S.F. AND On Appeal from the 470th Judicial
K.D.F., CHILDREN District Court, Collin County, Texas
Trial Court Cause No. 470-55984-
No. 05-21-01030-CV 2013.
Opinion delivered by Justice Wright.
Justices Partida-Kipness and Nowell
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED, and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant recover his costs of this appeal from appellee.
Judgment entered this 3rd day of February 2023.
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