NUMBER 13-17-00419-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

IN THE INTEREST OF Y.C., A CHILD

 

On appeal from the 398th District Court

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa

Memorandum Opinion by Justice Hinojosa

Appellant M.C. (Father) appeals an order modifying the parent-child relationship 

and appointing appellee A.T. (Mother) joint managing conservator with the exclusive right 

to designate the primary residence of their ten-year-old daughter Y.C.1 By one issue, 

Father argues that the trial court abused its discretion because there was insufficient 

evidence of a material and substantial change in circumstances. We affirm. 

 1 To protect the identity of the minor child, we refer to the child and her relatives by their initials.

See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2017 1st C.S.); TEX. R. APP. P. 9.8(a).
2

I. BACKGROUND

Mother and Father divorced in 2010. The trial court later entered a modification 

order appointing the parents as joint managing conservators and granting Father the 

exclusive right to designate the primary residence of Y.C. Mother was granted visitation 

pursuant to a standard possession order. Mother later filed a petition to modify the 

parent-child relationship seeking to be named a joint managing conservator with the 

authority to designate the primary residence for Y.C. Father filed a counterpetition 

asking that Mother have only supervised visitation and no overnight visits. 

The petition and counterpetition were tried to the bench. Father testified that he 

does electrical work for a living which requires him to travel to job sites throughout Texas 

and Louisiana. Sometimes, Father works near his residence in Mission, Texas during 

the week, allowing him to come home each day. Increasingly, however, his work 

schedule requires him to travel to distant locations, some as far away as 600 miles. 

When travelling to distant job sites, Father is unable to return home during the week. 

While he is away, Father’s wife and Y.C.’s paternal grandmother L.C. are the primary 

caretakers. Father stated that Mother did not have his mobile phone number for a long 

period of time. If Mother wants to talk to her daughter, she has to call L.C. Father 

acknowledged that there is a lot of tension between L.C. and Mother. Father testified 

that he has not observed anything that would indicate Mother is a bad parent.

Mother testified that she has had several verbal confrontations with L.C. when 

exchanging possession of her daughter. She stated that L.C. is rude and does not 

communicate with her. Mother stated she is never notified when Y.C. needs medical 
3

care. For a long period, Mother was only able to contact Y.C. through L.C., who would 

not answer her phone calls. 

L.C. testified that Mother once “burned tires”2 in the front of her house. As a 

result, L.C. told Mother that she could not pick up Y.C. at the house. L.C. stated that she 

and Mother later agreed to exchange custody at a nearby convenience store.

Douglas Brooks, a Hidalgo County Sheriff’s deputy, testified that he was asked by 

Mother “on a regular basis” to serve “as an escort between drop-offs and pick-ups of 

[Y.C.]” Deputy Brooks stated his presence was necessary to ensure that “there wasn’t 

any kind of confrontation between [Mother] and [L.C.]” On one occasion, L.C. expressed 

that she did not want the exchange of Y.C. to occur at L.C.’s home, which was the location 

designated by court order. According to Deputy Brooks, the parties later agreed for the 

exchange to occur at a nearby convenience store. 

Federico Soliz, a Hidalgo County Sheriff’s deputy, has responded to calls related 

to “[c]hild custody disputes, pick-up and drop-off of [Y.C.]” Deputy Soliz testified that 

Father was not present on these occasions. According to Deputy Soliz, L.C. wanted the 

exchange to occur at a local convenience store, but she never presented a court order 

authorizing that location. According to Deputy Soliz, both L.C. and Mother would call law 

enforcement, and the issue always involved disagreement over the location for the 

exchange of Y.C. In his fourteen years in law enforcement, Deputy Soliz has never 

received more calls concerning custody than he has from this family. 

A third Hidalgo County Sheriff’s deputy, Samuel Pena, responded twice to calls 

 2 We understand L.C.’s allegation that Mother “burned tires” to mean that Mother accelerated her 

vehicle to such a degree that its tires made a squealing noise. 
4

concerning Y.C. On one occasion, he observed Y.C. crying in L.C.’s car. Mother took 

possession of Y.C. without any issues. On a second occasion, Deputy Pena was called 

because Mother failed to timely return Y.C. to Father’s care. 

The trial court granted Mother’s petition to modify the parent-child relationship and 

entered an order designating Mother as joint managing conservator and granting her the 

exclusive right to designate Y.C.’s primary residence. This appeal followed.

II. DISCUSSION

By his sole issue, Father argues that “the evidence was legally and factually 

insufficient to support the trial court’s judgment that there was a material and substantial 

change in the circumstances of the parties[.]” 

A. Standard of Review 

We review a trial court’s decision to modify conservatorship under an abuse of 

discretion standard. Epps v. Deboise, 537 S.W.3d 238, 242 (Tex. App.—Houston [1st 

Dist.] 2017, no pet.). In determining whether an abuse of discretion has occurred 

because the evidence is legally or factually insufficient to support the trial court’s decision, 

we must inquire: (1) whether the trial court had sufficient information upon which to 

exercise its discretion; and (2) whether the trial court erred in its application of discretion. 

Gonzalez v. Villarreal, 251 S.W.3d 763, 774 n.16 (Tex. App.—Corpus Christi 2008, pet. 

dism’d); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). 

The sufficiency review is related to the first inquiry. In re D.S., 76 S.W.3d at 516. If it is 

revealed in the first inquiry that there was sufficient evidence, then we must determine 

whether the trial court made a reasonable decision. Id.
5

In a legal sufficiency review, we view the evidence in the light most favorable to 

the finding and indulge every reasonable inference that would support the trial court’s 

findings, crediting favorable evidence if a reasonable factfinder could do so and 

disregarding contrary evidence unless a reasonable factfinder could not. City of Keller 

v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). The evidence is legally sufficient if it 

would enable reasonable and fair-minded people to reach the verdict under review. Id. 

at 827–28. We may sustain a legal sufficiency challenge only when (1) the record 

discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules 

of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) 

the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the 

evidence conclusively establishes the opposite of a vital fact. Id. at 810. In reviewing 

the factual sufficiency of the evidence, we examine all of the evidence and set aside a 

finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly 

wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

Where, as here, the trial court does not file findings of fact and conclusions of law, 

we infer all necessary findings of fact to support the trial court’s order.3 BMC Software 

 3 Father filed a timely request for findings of fact and conclusions of law and a notice of past due 

findings of fact and conclusions of law. See TEX. R. CIV. P. 296, 297. “[A] trial court must file written 

findings of fact and conclusions of law when timely requested by a party.” Baltzer v. Medina, 240 S.W.3d 

469, 473 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The trial court’s failure to do so is harmful “if the 

circumstances of the particular case would require an appellant to guess at the reasons for the trial court’s 

decision.” Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 (Tex. App.—Houston [14th Dist.] 

2007, pet. denied). In his opening brief, Father contends that findings and conclusions are unnecessary 

because the trial court “announced its ruling in open court at the conclusion of the modification hearing, and 

it specifically provided the factual and legal basis for its ruling.” In his reply brief, Father inexplicably takes 

the opposite position, arguing that findings of fact and conclusions of law are necessary for the proper 

presentation of his appeal. Because Father raises this issue for the first time in his reply brief, it is not 

properly presented for appellate review. See TEX. R. APP. P. 38.3; Few v. Few, 271 S.W.3d 341, 347 (Tex.

App.—El Paso 2008, pet. denied).
6

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re W.C.B., 337 S.W.3d 

510, 513 (Tex. App.—Dallas 2011, no pet.). When the appellate record includes a 

reporter’s record, the trial court’s implied findings may be challenged for legal and factual 

sufficiency. In re W.C.B., 337 S.W.3d at 513; Zeifman v. Michels, 212 S.W.3d 582, 588 

(Tex. App.—Austin 2006, pet. denied).

B. Applicable Law

A trial court may modify the provisions of the divorce decree that provide the terms 

and conditions of conservatorship or that provide for the possession of or access to a 

child, if (1) modification would be in the best interest of the child and (2) the circumstances 

of the child, a conservator, or other party affected by the order have materially and 

substantially changed since the rendition date of the order being modified. See TEX.

FAM. CODE ANN. § 156.101(a)(1) (West, Westlaw through 2017 1st C.S.); Flowers v. 

Flowers, 407 S.W.3d 452, 456–57 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In 

considering whether a change of circumstances has occurred, the trial court compares 

the evidence of the conditions that existed at the time of the entry of the prior order with 

the evidence of the conditions that existed at the time of the hearing on the petition to 

modify. In re W.C.B., 337 S.W.3d at 514. The trial court is not confined to rigid or 

definite guidelines, but makes a fact-specific inquiry according to the circumstances as 

they arise. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no 

pet.). Texas courts have recognized material changes affecting possession and 

conservatorship as including (1) the marriage of one of the parties, (2) poisoning of the 

child’s mind by one of the parties, (3) change in home surroundings, (4) mistreatment of 
7

the child by a parent, or (5) a parent becoming an improper person to exercise custody. 

Id. at 429.

C. Analysis

We first address Mother’s argument that Father “judicially admitted a material and 

substantial change in circumstances had occurred.” According to Mother, Father’s 

judicial admission precludes him from challenging the sufficiency of the evidence on these 

grounds. 

As previously mentioned, Mother and Father both filed petitions to modify, each 

alleging a material and substantial change in circumstances in relation to possession and 

access to Y.C. Admissions in trial pleadings are judicial admissions in the case in which 

the pleadings are filed; the facts judicially admitted require no proof and preclude the 

introduction of evidence to the contrary. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—

Dallas 2013, no pet.); see also Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 

(Tex. 1983). A “judicial admission is conclusive upon the party making it, . . . relieves 

the opposing party’s burden of proving the admitted fact, and bars the admitting part[y] 

from disputing it.” Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993)

(per curiam) (quoting Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 

694 (Tex. 1980)). “This rule is based on the public policy that it would be absurd and 

manifestly unjust to permit a party to recover after he has sworn himself out of court by a 

clear and unequivocal statement.” In re A.E.A., 406 S.W.3d 404, 410 (Tex. App.—Fort 

Worth 2013, no pet.). A party’s allegation of changed circumstances constitutes a 

judicial admission of the common element of changed circumstances in the other party’s 
8

similar pleading. Id.; In re L.C.L., 396 S.W.3d at 718. 

This Court has recognized a deviation from this general rule in cases where parties 

seek modification of wholly different aspects of the parent-child relationship which are 

governed by different requirements and “circumstances.” See Snider v. Grey, 688 

S.W.2d 602, 606 n.3 (Tex. App.—Corpus Christi 1985, writ dism’d); see also In re T.A.M., 

No. 13-16-00005-CV, 2017 WL 711636, at *3 (Tex. App.—Corpus Christi Feb. 23, 2017, 

no pet.) (mem. op.). In Snider, the mother claimed that the father judicially admitted 

changed circumstances for all purposes. Snider, 688 S.W.2d at 606 n.3. We 

disagreed. Id. The father pleaded that there was a material change of circumstances 

which authorized a modification of the mother’s visitation privileges, while keeping the 

custody arrangements the same. Id. The mother sought to prove a change in 

circumstances which warranted changing custody entirely. Id. We recognized that the 

“prerequisite proof to justify modification of visitation is not the same required for a change 

of custody.” Id. We therefore did “not agree that the parties’ respective pleadings 

stipulated to the effect that the movant (mother) need not prove up this key element to 

warrant a change of custody . . . .” Id. Thus, pleading one did not result in judicial 

admission of the other. See id. In other words, the parties were not truly discussing a 

“common element” in “similar pleading[s].” See In re A.E.A., 406 S.W.3d at 410.

This case is indistinguishable from Snider. Father’s allegation of a material and 

substantial change in circumstances related to his request to restrict Mother’s visitation. 

Mother’s allegation related to her request to change custody entirely. Therefore, 

Father’s pleading did not result in a judicial admission as to an element of Mother’s claim. 
9

See id.; Snider, 688 S.W.2d at 606 n.3. 

We next turn to Father’s argument that the evidence was legally and factually 

insufficient to support the trial court’s finding that there was a material and substantial 

change in circumstances since the rendition of the trial court’s previous order. The trial 

court was presented with evidence that Father was away from home for longer periods of 

time due to work obligations. Father’s absences increased in duration during the period 

that he was the primary conservator. As a result, Y.C. was cared for during the week by 

Father’s wife and L.C. Mother did not have Father’s phone number and was only able 

to communicate with L.C., with whom she had a strained relationship. In addition, Father 

was rarely present when the parties exchanged possession of Y.C. On several 

occasions, law enforcement was called to facilitate the exchange. See In re A.L.E., 279 

S.W.3d at 429 (identifying a change in home surroundings as a substantial and material 

change in circumstances). 

We conclude that this evidence would enable reasonable and fair-minded people 

to find a material and substantial change in circumstances. See City of Keller, 168 

S.W.3d 802 at 827–28. We further conclude that such a finding is not so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 

S.W.2d at 176. The trial court was equipped with sufficient information upon which to 

exercise its discretion. See Villarreal, 251 S.W.3d at 774 n.16. Therefore, we hold that 

the trial court did not abuse its discretion in modifying the parent-child relationship. See 

Epps, 537 S.W.3d at 242. We overrule Father’s sole issue.
10

III. CONCLUSION

We affirm the trial court’s judgment.

LETICIA HINOJOSA

Justice

Delivered and filed the

9th day of August, 2018.