In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00316-CV 

IN THE INTEREST OF R.A.W., A CHILD 

 

On Appeal from the 108th District Court 

Potter County, Texas 

Trial Court No. 80,800-E, Honorable Douglas Woodburn, Presiding 

 

March 27, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Appellant, the mother of R.A.W., appeals the trial court’s order in a suit to modify 

the parent-child relationship. She presents six issues. We will affirm the trial court’s 

order.

Background

R.A.W., male, was born in October 2006. The child’s mother and father never 

married. Under a November 2011 order, the parents were joint managing conservators. 

The father had the exclusive right to determine the child’s residence “for the purpose of 
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determining school districts,” but limited to Potter and Randall Counties. The mother 

and father each had possession of the child, during alternating weeks.

In late 2012, the father filed a petition to modify the parent-child relationship. The 

petition requested that “he be appointed as the person who has the right to designate 

the primary residency of the child.” He further requested that the mother’s access to or 

possession of the child be modified to reflect the Standard Possession Order set out in 

the Texas Family Code. The father also asked that the mother be required to pay child 

support. The pleading made no mention of a geographic restriction. The petition 

alleged the circumstances of the child, a conservator or other affected party had 

materially and substantially changed, and asserted the requested modifications were in 

the child’s best interests, but did not further elaborate on either contention. The mother 

filed a counter-petition, also alleging a material and substantial change had occurred, 

and asking the court to give her the right to designate the child’s primary residence. Her 

counter-petition did not mention a geographic restriction on the child’s residence.

After hearing a number of witnesses, including both parents, the trial court 

modified the mother’s possession to that provided by the Standard Possession Order, 

giving her possession on the second, fourth and alternate fifth weekends of each month

to coincide with her possession of her other two children. The court appointed the 

father as the parent having the right to establish the primary residence of R.A.W. in 

Potter, Randall, Swisher, Hale or Lubbock Counties. The court also made additional 

related orders and subsequently entered findings of fact and conclusions of law. After 

the mother’s motion for new trial was overruled by operation of law, she timely filed 

notice appealing the trial court’s order. 
3

Analysis

An appellate court reviews a trial court's order regarding child custody, control, 

possession, and visitation for an abuse of discretion. In re L.C.L., 396 S.W.3d 712, 716 

(Tex. App.—Dallas 2013, no pet.) (citing In re H.N.T., 367 S.W.3d 901, 903 (Tex. App—

Dallas 2012, no pet.) and Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. App—Dallas 

1999, no pet.)). A trial court abuses its discretion when it acts arbitrarily and 

unreasonably without reference to guiding principles. Id. (citing In re H.N.T., 367 

S.W.3d at 903 and In re W.C.B, 337 S.W.3d 510, 513 (Tex. App—Dallas 2011, no 

pet.)). In family law cases, the abuse of discretion standard of review overlaps with 

traditional standards of review. L.C.L., 396 S.W.3d at 716; see Crawford v. Hope, 898 

S.W.2d 937, 940 (Tex. App.—Amarillo 1995, writ denied); In re Ferguson, 927 S.W.2d 

766, 769 (Tex. App.—Texarkana 1996, no writ). As a result, legal and factual 

insufficiency are not independent grounds of reversible error, but instead are factors 

relevant to an appellate court's assessment of whether the trial court abused its 

discretion. L.C.L., 396 S.W.3d at 716; Crawford, 898 S.W.2d at 940. To determine 

whether the trial court abused its discretion, an appellate court considers whether the 

trial court had sufficient evidence on which to exercise its discretion and erred in its 

exercise of that discretion. As long as some evidence of a substantive and probative 

character exists to support the trial court's judgment, an appellate court will not 

substitute its judgment for that of the trial court. L.C.L., 396 S.W.3d at 716.

The burden of proof by the movant in a suit to modify the parent-child relationship 

is by a preponderance of the evidence. TEX. FAM. CODE ANN. § 105.005 (West 2013).

The best interests of the child is the primary consideration in determining 
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conservatorship or residency of a minor child. TEX. FAM. CODE ANN. §§ 153.001,

153.002 (West 2014); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000); Zeifman v. Michels, 

212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied). One attempting to modify 

an order establishing conservatorship, possession, and access to a child must show 

that (1) there has been a material and substantial change in the circumstances since 

the rendition of the existing order or the signing of a mediated or collaborative 

settlement agreement on which the order is based, and (2) the modification would be in 

the best interests of the child. TEX. FAM. CODE ANN. § 156.101(a) (West 2014). 

In the mother’s second, third and fourth appellate issues, she challenges the trial 

court’s modifications, asserting the court abused its discretion because there was no 

evidence to support the ordered modifications. Because the best interests of R.A.W. are 

the primary consideration here, we will address whether the record contains some 

evidence to find the trial court’s modification orders were in the child’s best interests.

Before addressing best interests, we note the mother’s brief asserts at one point

that no material and substantial change had occurred to warrant modification of the 

2011 order. The allegations in the mother’s counter-petition for modification preclude 

such a contention. As noted, the mother also plead a material and substantial change 

in the circumstances of the child, a conservator or other affected party had occurred 

since the rendition of the 2011 order. The mother thus judicially admitted that essential 

element of the father’s case for modification. See In the Interest of A.E.A., 406 S.W.3d 

404, 410 (Tex. App.—Fort Worth 2013, no pet.); In re L.C.L., 396 S.W.3d at 718-19

(both cases finding judicial admissions from pleadings in modification proceedings). 
5

Our inquiry, then, is whether the record contains some substantive and probative 

evidence the modification order was in R.A.W.’s best interests. Trial courts have wide 

latitude to determine what is in a minor child's best interests. In the Interest of O.G., No. 

05-13-1263-CV, 2014 Tex. App. LEXIS 7021, at *10 (Tex. App.—Dallas June 26, 2014, 

no pet.) (mem. op.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). In a 

bench trial, the trial judge is in the best position to observe and assess the witnesses' 

demeanor and credibility. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th 

Dist.] 2009, no pet.). We therefore defer to the trial court's resolution of underlying facts 

and to credibility determinations that may have affected its determination, and will not 

substitute our judgment for that of the trial court. Id. 

We note first that there was testimony the father took the more active role in his 

son’s life, in some significant respects. The father testified he made all of R.A.W.’s 

medical, dental, therapy and counseling appointments1and paid for and took the child

to each. The record shows the mother’s unwillingness to take R.A.W. to his speech 

therapy appointments because she did not believe he needed the therapy. Also, the 

mother claimed the appointments were scheduled on the days she worked and she was 

unable to change them without consulting with the father, something the trial court could 

have determined she was unwilling to do. The record shows the mother attended only 

one counseling session with R.A.W. because, she told the court, she was not aware of 

the other appointments. The father testified, and the child’s teacher, therapist and 

counselor all agreed, that the father had the greater contact and involvement with them 

 

1

The father testified that by the time of this hearing, R.A.W. had started kindergarten and had a 

slight learning delay requiring speech therapy and counseling. The court heard testimony from which it 

could have determined the therapy and counseling were in the child’s best interests.
6

regarding R.A.W. And, the mother acknowledged R.A.W. was often absent or tardy 

from school while in her care. The child’s counselor testified she was concerned that 

the child’s needs were not being met when he was with the mother, thought those 

needs were met when with the father, but opined continued contact with both parents is 

best for R.A.W.

Second, the father told the court he was married, and his wife had been accepted 

into a doctoral program at Texas Tech University in Lubbock, requiring commuting. He 

told the court allowing R.A.W. to move with him to Lubbock would allow more family 

time and opportunities such as travel.2The testimony indicates also the father had a 

recent change in employment, benefitting R.A.W. in several ways: “[n]ot monetarily, 

although, that is there, but also the family environment of the work schedule, which 

allows me to come and go and leave early and take care of my family, as well as 

conduct my business.” 

Third, although the testimony was disputed, the trial court could have accepted 

the father’s testimony expressing concerns over the care R.A.W. received while with his 

mother. He testified about R.A.W.’s cleanliness and the state of his clothing, although 

the boy’s teacher testified she never observed anything negative about R.A.W.’s 

appearance. Also, the record shows the mother moved in with one man, then another 

man, after the entry of the 2011 order and the mother’s other two children do not live 

 

2

The father told the court about a Disney cruise he wanted to take with R.A.W. and the father’s 

brother's family. That vacation involved traveling to a Disney island and required a passport. The father 

asked the mother to sign the documents to obtain a passport for R.A.W. He testified, “[a]nd she would 

lead me on, saying, yeah, next month I'll sign the paper, next week, call me next week, let me know. And 

she just never would sign it, so we couldn't go.” The mother testified she did not want R.A.W. traveling 

with the father and his wife because she was concerned that the wife had hit R.A.W. The court’s order 

directed that the father and the mother sign documents relating to a passport and gave the father the right 

to seek a passport for R.A.W.
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with her. The father testified R.A.W. told him his “mother will curse at him, say the F 

word.” The father also stated concerns over the mother’s smoking, choice in movies 

while R.A.W. was present, and the lack of a bed for R.A.W. at his mother’s home. But 

the mother did tell the court she has been employed since 2011, had the same cell 

phone number since 2007 and provided that number to the father. And, the mother 

pointed to her concerns for R.A.W. while with his father, in particular the father’s 

conviction for disorderly conduct,3and asserts this evidence shows modification of the 

order is not in R.A.W.’s best interests. She further agreed it would be disruptive to 

R.A.W. to live in Lubbock with his father.

Having reviewed the record of trial, we find the trial court heard evidence of a 

substantive and probative character supporting its conclusion it was in R.A.W.’s best 

interests for the father and the mother to maintain their status as joint managing 

conservators but for the father to have the right to name the primary residence of the 

child, with the geographical restriction the court imposed. We resolve appellant’s 

second, third and fourth issues against her.

We turn now to consideration of the mother’s remaining appellate issues. In her 

first issue, the mother contends the trial court erred in allowing the father to raise issues 

he did not include in his petition. Specifically, she argues she did not receive fair notice4

 

3

Evidence was presented to show the father had been arrested for a family violence criminal 

offense and had plead guilty to disorderly conduct. When asked by counsel, the father explained that the 

mother often called the police to have “welfare checks” conducted on R.A.W. while in the father’s care. At 

one point after the two stopped dating, the mother alleged there had been “a physical altercation”

between them. The father denied the altercation but he plead to the Class C misdemeanor offense and 

paid a fine. He testified he did so “to have closure to the incident and . . . move on.” 

4 Rule 45(b) of the Texas Rules of Civil Procedure provides that pleadings shall "consist of a 

statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of 
8

that he would be seeking to modify the geographical restriction in the 2011 order or that 

he would be seeking permission to obtain a passport for R.A.W.

At the outset of the hearing, the father’s counsel made a brief opening statement 

advising the court that the father was asking “that he be allowed to move at least to 

Lubbock and we’re asking that he be allowed to apply for a passport and take the child 

without express permission.” In her opening statement, counsel for the mother stated:

Today is the first that we've heard that there is a request to lift the 

geographical restriction that was in place. That's not contained in the 

Petition to Modify that was originally filed by the Petitioner. 

In addition, any requests regarding the passport provisions today was the 

first we heard of that. That's not contained in the Petition to Modify.

So we would ask that those issues not be allowed to have testimony 

presented on those. If Counsel wants a continuance to amend her 

petition, we can do that, but we weren't prepared for those two issues 

today. We were just specifically prepared to argue regarding who should 

be named the primary, Your Honor.

The court responded, “All right. You may proceed.” 

The parties proceeded with the hearing, and the mother made no further 

objection or other reference to her request that testimony be limited to particular issues, 

either during the presentation of evidence or at the time the court announced its ruling.

The father contends the mother’s first issue presents nothing for our review. 

Under Rule 33.1(a)(2) of the Texas Rules of Appellate Procedure, in order to present a 

_____________________

defense." TEX. R. CIV. P. 45(b). Rule 47(a) provides that a pleading setting forth a claim for relief shall 

contain "a short statement of the cause of action sufficient to give fair notice of the claim involved." TEX.

R. CIV. P. 47(a). A petition provides sufficient notice if it gives the defendant fair notice of the facts relied 

upon, enabling the defendant to prepare a defense. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 

887, 897 (Tex. 2000); see also Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex. App.—Eastland 2004, no 

pet.) (the test for fair notice is whether an opposing attorney of reasonable competence, with the 

pleadings before him, can determine the nature of the controversy and the testimony that would probably 

be relevant).
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complaint for appellate review, the record must reflect that the trial court “(A) ruled on 

the request, objection, or motion, either expressly or implicitly; or (B) refused to rule ... 

and the complaining party objected to the refusal.” See TEX. R. APP. P. 33.1(a)(2). The 

trial court proceeded with the hearing without ruling expressly on the mother’s request 

to exclude any testimony on the topics of the geographical restriction and the passport. 

It might be argued the court implicitly denied her request by telling the parties to 

proceed, but we could not agree with such a contention. We find In re Z.L.T. instructive 

in that regard. That case involved a suit brought by the State to establish a parent-child 

relationship. 124 S.W.3d 163 (Tex. 2003). The respondent, an inmate, filed an 

application for a bench warrant. Id. at 164. On appeal, the court held the trial court 

implicitly denied his application by proceeding to trial without issuing the bench warrant, 

preserving for appeal his complaint about its denial. Id. at 165. By contrast, here, 

proceeding with the hearing was not contrary to the mother’s request for a limit on 

testimony. She expressed no objection to trying the issue she said she was prepared 

for, that regarding which of the parents should be named “the primary.” The mother did 

not obtain a ruling on her request, precluding our consideration of her complaint on 

appeal. See O’Dell v. Wright, 320 S.W.3d 505, 513 (Tex. App.—Fort Worth 2010, pet. 

denied) (finding no implicit ruling on admission of testimony).

The mother’s complaint on appeal also contends the trial court’s ruling did not 

allow her the opportunity to present evidence to counter the father’s case. Her brief 

argues at one point, “In order to defend against [the father’s] case, [the mother] needed 

to present evidence demonstrating that the move of R.A.W. was not in R.A.W.’s best 

interest. By not being given fair notice of [the father’s] request to move R.A.W. outside
10

of the previously imposed geographical location, [the mother] was denied a fair 

opportunity to defend against such a request.” To any degree the mother’s request to 

the trial court might be read as seeking an opportunity to present evidence on another 

occasion, the trial court made no ruling on such a request.

Moreover, at the conclusion of the hearing, the court stated, “I am not happy that 

there was no pleading with regard to the Lubbock change, however, the Code charges 

me with the duty to see to the child's best interest, and it is my finding that the child's 

best interest will be served by allowing the parties to remain together in Lubbock, so I 

will allow the possession -- I mean, the geographic restriction to Amarillo or Lubbock or 

any county in between.” It is unclear to us that the court’s statement should be taken as 

an adverse ruling on the mother’s objection raised at the outset of the hearing. Even if 

we consider it as such a ruling, preserving the mother’s first issue for review, we could 

not agree the trial court abused its discretion by hearing and ruling on the issues. 

The father and mother filed pleadings seeking modification of the 2011 order, 

and in particular seeking modification with respect to the right to establish the child’s 

primary residence. The jurisdiction of the court was properly invoked with respect to the 

custody and control of R.A.W., a minor child, so the trial court was "vest[ed] with 

decretal powers in all relevant custody, control, possession and visitation matters 

involving the child.” Kohutek v. Kohutek, No. 07-10-0143-CV, 2011 Tex. App. LEXIS 

7585, at *12-13 (Tex. App.—Amarillo Sept. 16, 2011, no pet.) (mem. op.) (citing Ellason 

v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.)). And, although 

Rule 301 of the Texas Rules of Civil Procedure generally requires a judgment to 

conform to the pleadings, the Texas Supreme Court has long held that in cases 
11

affecting the parent-child relationship, “[t]echnical rules of practice and pleadings are of 

little importance in determining issues concerning the custody of children.” Kohutek,

2011 Tex. App. LEXIS 7585, at *13 (citing Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 

1967)). Moreover, once the court's jurisdiction is invoked, the court has "the duty . . . to 

make proper disposition of all matters comprehended thereby in a manner supported by 

the evidence.” Liethold, 413 S.W.2d at 701. The best interests of the child is always the 

primary consideration of the court in determining the issues of conservatorship and 

frequently “trumps procedural concerns.” Dorai v. Dorai, No. 01-12-00308-CV, 2013 

Tex. App. LEXIS 4812, at *9-10, (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) 

(mem. op.).

Because courts are given such wide discretion in this context, we find the trial 

court’s admission and consideration of evidence pertaining to the topics of the 

geographical restriction and the passport were well within the trial court’s discretion. 

Liethold, 413 S.W.2d at 701; Kohutek, 2011 Tex. App. LEXIS 7587, at *13; Ellason, 162 

S.W.3d at 887. 

The mother’s first issue is overruled.

Citing section 156.103 of the Texas Family Code, the mother argues in her fifth 

appellate issue the trial court abused its discretion by ordering the parties to meet in 

Plainview, Texas to exchange possession of R.A.W. She argues the court failed to 

account for the costs she would incur making trips to-and-from Plainview two to three 

weekends per month and failed to recognize it was the father’s obligation, as the party 

making the move to Lubbock, to bear the increased expenses to provide the mother 
12

access to R.A.W. The mother also argues the trial court did not take into account safety 

concerns of the parties meeting alone in Plainview given that the father had been 

arrested for domestic violence.

Section 156.103 provides:

a) If a change of residence results in increased expenses for a party 

having possession of or access to a child, the court may render 

appropriate orders to allocate those increased expenses on a fair 

and equitable basis, taking into account the cause of the increased 

expenses and the best interest of the child.

(b) The payment of increased expenses by the party whose residence 

is changed is rebuttably presumed to be in the best interest of the 

child.

(c) The court may render an order without regard to whether another 

change in the terms and conditions for the possession of or access 

to the child is made.

TEX. FAM. CODE ANN. § 156.103 (West 2014).

The trial court made the finding that “[i]t is in the child's best interest for Petitioner 

and Respondent to meet half way between the residences of the parties due to 

Petitioner's change of residence.” In making her argument under this issue, the mother 

does not challenge any specific fact finding of the trial court. Unchallenged findings of 

fact are binding on the appellate court unless the contrary is established as a matter of 

law or there is no evidence to support the finding. In the Interest of H.N.T., 367 S.W.3d 

at 902. The court’s finding is binding on us here, and we see no abuse of discretion in 

the trial court’s selection of Plainview as the specific place for the exchange of 

possession. Nor can we see an abuse of discretion in the court’s allocation of the travel 

expenses, effectively requiring each party to bear his or her own expenses of travel 
13

back and forth to Plainview. In other findings of fact unchallenged on appeal, the court 

determined the mother’s and father’s net resources were substantially the same. 

As to the mother’s expressed concerns over her safety during exchanges of 

possession, we note the court’s order requires each parent to surrender the child to the 

other at a public place, the McDonald’s in Plainview. The court heard testimony 

regarding the circumstances surrounding the father’s plea of guilty to a Class C 

misdemeanor based on the mother’s complaint, and could reasonably have determined 

its order adequately addressed the mother’s perceived safety concerns. We overrule 

the mother’s fifth issue. 

In the mother’s last issue, she contends, without analysis, the trial court erred by

ordering her to pay $300 per month in child support because no evidence was 

presented on that issue. The determination of the amount of child support to be paid is 

left to the discretion of the trial court and will not be disturbed on appeal absent a clear 

showing of abuse of discretion. In the Interest of L.R.P., 98 S.W.3d 312, 313 (Tex. 

App.—Houston [1st Dist.] 2003, pet. dism’d) (internal citations omitted).

The trial court entered a conclusion of law stating, “[the mother] should pay child 

support in the amount of $300.00 per month.” The trial court also entered the following

findings of fact:

6. The application of the percentage guidelines in this case would be 

unjust or inappropriate.

7. The net resources of [the mother] per month are $1717.19.

8. The net resources of [the father] per month are $1738.00.
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9. The percentage applied to the first $7500 of [the mother’s] net 

resources for child support is 16.00 percent. 

10. The specific reasons that the amount of support per month ordered 

by the Court varies from the amount computed by applying the 

percentage guidelines of section 154.129 of the Texas Family Code 

are: the child has increased needs due to the necessity for speech 

therapy and counseling.

The trial court’s findings show the mother’s net monthly resources to be

$1717.19, sixteen percent of which is $274.75. In her motion for new trial, the mother

set forth as grounds: “[t]he evidence does not support a finding that [the mother’s] child 

support obligation should be $300 per month.” On appeal, the mother’s entire argument 

on this point states, “There was absolutely no evidence adduced on the issue of child 

support. Therefore, the trial court’s ruling regarding child support was legally and 

factually insufficient and was not in the best interest of R.A.W.”

In light of the trial record, we do not read the mother’s appellate brief to challenge

the trial court’s determination of her monthly net resources. We construe the mother’s 

point on appeal to challenge the evidence supporting the award of child support greater 

than the sixteen percent statutory guideline, that is, the $25.25 difference between the 

$300 awarded and the $274.75 guideline figure. The trial court cited the child’s need for 

counseling and speech therapy as the basis for the additional support. At trial and on 

appeal the mother disputes the child’s need for such services. Because we have 

already determined the trial court could have believed the testimony that R.A.W. needed 

those services, we find no abuse of discretion in the court’s reliance on that need in 

setting child support, and overrule the mother’s final issue on appeal.
15

Conclusion

Having resolved each of the mother’s issues against her, we affirm the trial 

court’s order modifying the parent-child relationship.

James T. Campbell

 Justice