### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00603- CV

Sarah Ann Miller, Appellant

v. Ree se Wynn Miller, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -F M- 11- 0049 41, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Sarah Ann Miller appea ls the trial court’s or der modify ing a divorce decr ee to g ive appellee Reese Wy

nn Miller the rig ht to desig nate the primary residenc e of their child, R.H.M. I n 1 th r e e is s u e s , Sa

r a h c h a ll e n g e s th e tr ia l c o u

r t’ s o r d e r , c o n te n d in g th a

t th e tr ia l c o u

r t a b u s e d it s d is c r e ti o n ( 1 ) b y c o n c lu d in g th a

t a ma te r ia l a n d s u b s ta n ti a l c h a n g e in c ir c u

ms ta n c e s s u p p o r te d th e mo d if

ic a ti o n ; (2) in concluding that g ranting Reese the rig ht to desig nate the primary residenc e of R.H.M. was in R.H.M.’s best interest; and ( 3) in awa rding Reese a

ppellate a ttorney s’ fe es. We will affirm.

BACK GR OUND The parties wer e divorce d in Dec ember 2012 pursuant to a jury verdic t enter ed in J uly 2012. As part of the final decr ee of divorce , Sarah was g rante d the exclusive rig ht to desig nate

Be cause the Millers’ child is under 18, w e will ref er to him only

by his init ials. We will 1 ref er to Sara h Ann Miller and Ree se Wy nn Miller by

their first name s for the sa ke of c larity

.the primary residenc e of R.H.M. in T ra v i s County , the counties contig uous to Travis County , or

in Sacra mento, California, or th e co u n t i es contig uous there to. Sarah chose to reloc ate R.H.M. to Sacra mento. Among other things, the o ri gi n al d i v orce decr ee order ed Sarah to pay all costs of Reese’ s travel to and f

rom California to exerc ise his rig hts to possession of R.H.M. At the t ime of t he jury trial that g ave rise t o the original di vorce d ec re e, S ar ah had

secur ed an apar

tment for her and R.H.M. in Sacra mento and maintained employ ment with a salary of $125,000 per y ear . Although Sarah’ s income did not chang e befor e the modification at issue in this appea l, her livi ng arr ang ements di d. Soon afte r m ov i n g t o S acr amento, S ara h moved i n with h e r a u n t. T h e r e n t th a

t Sa r a h a g r e e d to p a

y h e r a u n t w a s s ig n if ic a n tl y le s s th a

n th e r e n t s h e w a s p a

y in g 2

at her apar

tment. Sarah then enter ed into a romantic rela tionship with Travis Bonna no. Sarah beg an stay ing some nights a t Bonna no’s home bef

ore she and R.H.M. moved in w ith B onnano full time.
I n addition to her chang e in re sidence , Sarah a lso ex perie nced f inancial diff

iculties afte r moving to California. Although Sarah had testified at the jury trial that her move to California

wo u l d re sult in incre ased income and a better position within her company , these results never materia liz ed. I nstead, she ultimately filed fo r b an k ru p tcy and listed as debts pay ments owed to Reese for his tra

vel to Ca lifornia and rent owed to he r aunt. The trial court found that Sarah owed Reese $40,000 for travel ex penses and for failing to reimburse him for pay ments made to prevent fore closure of their marital home in L ag o Vi s t a, T ex as. Ba sed on testimony at the modification

Sarah contends that the trial court err ed in considering her move from her apar tment to her 2 aunt’s home beca

use this move occur

red befor e the trial court signe d the orig inal divorce d ec re e. H o w e v e r , th e o r ig in a l d iv o r c e d e c r e e c a me a s a r e s u lt o f a ju

r y v e r d ic t. Sa

r a h te s ti f ie d to th e ju

r y th a t s h e a n d R. H

. M

. w e r e li v in g in h e r a p a r tm e n t. T h e f

a c t th a t th e d iv o r c e d e c r e e w a s n o t f o r ma ll y s ig n e d until some six months later does not chang e the testimony befor e the jury when it rea ched its verdic t. 2proce eding , afte r her bankruptc y

Sarah’ s normal spending ex cee ded her income, eve n without the expense of re nt or a mortg ag e.

Although prese nted with conflict i n g t est imony , the trial court also found that the Millers’ ability to co-pa

rent R.H.M. decli n ed prec ipitousl y afte r the divorce and that Sarah was larg ely at fault for this decline. As proof, the trial court cited evidenc e that Sarah did not fre ely share i nformation reg arding R.H.M. with Reese and did not alway s consult him in pare nting deci s i o n s . I n fac t, acc ording t o t h e t ri al court’s finding s, Sarah had specific ally told Reese that she would
not co-pa rent R.H.M. with him. The court also found t hat S ara h h ad m ad e d erog atory comments

conce rning Reese in front of R.H.M. and communicated neg at i v e fa cts conce rning Reese’ s past alcohol use to R.H.M.’s school and community in Sacra mento. I n addition, R

. H.M

. experience d

some educational decline, which t he trial court attributed to a chang e in his day car e arrang ements

an d t h e timing of Sarah’ s decision to move in with Bonna no. Finally , testimony indicated that Bonnan o u sed profa

nity and derog atory rema rks twice toward Reese in R.H.M.’s prese nce and that Sarah had injected Bonna no’s prese nce into their phy sical exchang e of R.H.M., unne cessa rily

esca lating te nsions among e very one involved.

The trial court found that circ umstances had m at er ially and substantially chang ed since the initial divorce decr ee, including (1) Sarah’ s declining financ ial situation, whic h rende red Sarah unable to meet the financ ial obliga tions imposed upon her by the divorce decr ee so that Reese could exercise his possessory ri gh t s ; (2) Sarah’ s chang e in living arr ang ements and inability to provide R.H.M. with a stable home; (3) R

. H. M

. ’s ac ademic decline; (4) the inability of Sarah to
co-pa rent with Reese; and (5) the declining nature and quality of Reese’ s contac t w ith R.H.M. due

3to decisions made by Sarah. The trial court also found that modification would be in R.H.M.’s best

interest and g rante d Reese the rig ht to desig nate the primary residenc e of R.H.M. in Travis County

o r c o n ti g u o u s c o u n ti e s . F in a ll y , a f

te r r e o p e n in g th e e v id e n c e to h e a r te s ti mo n y f r o m Re e s e ’ s a

tt o r n e y , th e tr ia l c o u

r t g r a n te d Re e s e c o n d it io n a l a

p p e ll a te a tt o r n e y s ’ f e e s o f $ 3 0 , 0 0 0

. I t is f

r o m th e tr ia l c o u

r t’ s final modification orde r that Sara h now appe als. 3

DISCUSSIO N Sa r a h r a is e s th r e e is s u e s o n a

p p e a l. Sh e a

r g u e s th a t th e tr ia l c o u

r t a b u s e d it s d is c r e ti o n (1) in concluding that a materia l and substantial chang e had occur red to justify modification, (2) in concluding that g ranting Reese the rig ht to desig nate R.H.M.’s primary residenc e in Texas was in R.H.M.’s best interest, and ( 3) in c onditionally awa rding Reese appellate attorney s’ fee s. We w ill

a d d r e s s e a c h o f th e s e is s u e s in tu r n a f te r e xp la in in g th e s ta

n d a r d o f r e v ie w th a

t w il l g u id e o u r a n a ly s is

.

Stand ard of Review

We revie w a trial court’s decision to modify a conser vatorship order for a clea

r abuse of discretion. Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex. App.—Austin 2006, pet. denied)

. The abuse- of-discr etion standard overla ps with traditional sufficie ncy standards of revie w in family law

case s, cre ating a hy

brid analy sis. Id. at 587–88. We there fore eng ag e in a two- prong ed inquiry to decide whether the trial court abused its discretion: (1) whether the trial court h ad sufficie nt information upon which to exercise its discretion; and (2) whether the trial court err ed in its

This Court stay ed the eff

ect of the trial court’s modification order pending this appea l. The 3 C o u rt ’s s t ay was issued on October 3, 2014, shortly afte r Sarah filed her notice of appea l. The parties did not complete the ir brief ing to this Court until August 20, 2015. The stay is now lifted. 4application of discretion. Echols v. Olivarez , 85 S.W .3d 475, 477–78 (Tex. App.—Austin 2002, no

pet.). The focus of the first inquiry is the sufficie ncy of the evidenc e. Zeifman , 212 S.W .3d at 588. The revie wing court must then decide whether , based on the evidenc e befor e it, the trial court made

a rea sonable decision. Id. As a result, leg al and fac tual sufficie ncy are not independe nt g rounds of

err or in modification case s; rathe r, they are rele vant fac tors in deciding whether the trial court abused its discretion. In re T.M.P. , 417 S.W .3d 557, 562 (Tex. App.—El Paso 2013, no pet.).

To deter mine whether there is leg ally sufficie nt evidenc e, we consider the evidenc e in the light most favor able to the trial court’s finding s if a rea sonable fac tfinder could and disreg ard evidenc e contra

ry to the finding s unless a rea sonable fac tfinder could not. City of Keller v. W

ilson , 168 S.W .3d 802, 807 (Tex. 2005). When revie wing the evidenc e for fac tual sufficie ncy , we consider and we igh a ll the evidence prese nted and will se t a side the trial court’s finding s only if they are so
contra ry to the overw helming weig ht of the evidenc e such that they are clea rly wrong and unjust. Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W .2d 442, 445 (Tex. 1989); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1 986). When the evidenc e conflicts, we must presume that the fac tfinder resolved any inconsistencies in favor of the order if a rea sonable person could do so. W ilson , 168 S.W .3d at 821. The trial court does not abuse its discretion i f ev i d en ce of a substantive and probative char acte r exis ts in support of its decision. Zeifman , 212 S.W .3d at 587. We rec og nize that the trial court is in the best position to observe and assess the witnesses and their demea nor, and we g ive g rea t latitude to the trial court in dete rmining the best interest of a child. In re A.L.E. , 279 S.W .3d 424, 427 (Tex. App.—Houston [14t h Dist.] 2009, no pet.). As a result, the m er e fa ct t h at an appellate
court might decide the issue differ ently than the trial court does not establish an abuse of discretion. Zeifman , 212 S.W .3d at 587.
5Mate rial and S ubs tantial Change The primary focus of Sarah’ s arg uments agai n s t t h e t rial court’s order is that the trial court abused its discretion in concluding that a materia l and substantial chang e had occur red since the orig inal decr ee to justify chang ing conser vatorship. Specifica ll y , Sarah challeng es the leg al and fac tual sufficie ncy of the evidenc e that (1) Sarah’ s financ ial situation ch a n g e d , (2) Sarah’ s ability
to provide an independe nt home has chang ed, (3) R.H.M.’s aca demic prog ress has ch an ged , and (4) Reese’ s contac t with R.H.M. or the Millers’ ability to communicate and co-pa rent has chang ed. Sarah also complains that her m o v e i n to her fianc é’s home should not be considere d beca use it

occur red a fter Re ese soug ht modification. A trial court may modify a conser vatorship order if the “cir cumstance s of the child,

a conser vator, or other party aff

ecte d by the order have materia lly and substantially chang ed” since the time of the rendition of the divorce d ec re e and if modification is in the child’s best interest. Tex. Fam. Code § 156.101(a) (1)( A). A court’s deter mination of whether a materia l and substantial ch an ge o f circ umstances has occur red is not based on rig id rules and is fac t-specif ic. Zeifman , 212 S.W .3d at 593. Materia l chang es may be established by either direc t or circ umstantial evidenc e. In re T.M.P. , 417 S

. W.3d at 564. They have included (1) the marria g e of one of the parties, (2) poisoning of a child’s mind by one of the parties, (3) a ch an ge in home surrounding s, (4) mistreatment of a child by a pare nt or step-par ent, or (5) a pare nt’s becoming an improper person
to exercise custody

. Id. (citing In re A.L.E. , 279 S.W .3d at 429). Rece nt examples from this Court have included evidenc e of a plan to marry , moving i n wi th a signific ant other, a plan to return to school, and moving of residenc es. Downey v. Downey , No. 03-12-00037- CV, 2014 WL 1362642,

6at *4 (Tex. App.—Austin Apr. 1, 2014, no pet.) (mem. op.). Whether a particula r chang e is materia l and substantial depe nds on the circ umstances of eac h case

. In re T.M.P. , 417 S.W .3d at 564. The evidenc e prese nted to the trial court was le g a ll y a n d f a c tu a ll y s u fficie nt to support the trial cour

t’s conclusion that a ma terial a nd substantial c hang e had occur red in this ca se. Sara

h couche s one of he r arg uments as whether there is le g ally and fa ctually sufficie nt evidence that she is unable to provide an “indepe ndent home.” Whether Sarah is able to provide an independe nt home for R.H.M., howeve r, is not rea lly the issue. T h e issue is whether there has been a materia l and substantial chang e in R.H.M.’s home s urrounding s since the divorce . The e vidence demonstrates that there has. The evidenc e shows that, since the time of the jury trial, Sarah has chang ed R.H.M.’s home at least twice. At the time of the jury trial, Sarah maintained her own apar tment wher e she and R.H.M. lived. L ess than six months later, and befor e the orig inal divorce decr ee was signe d, Sarah and R

. H. M. moved in with Sarah’ s aunt. Although Sarah testified that she had ag ree d to pay her
aunt $ 5 0 0 p er month in rent, she admitted that she had not paid the ag ree d rent ever y month,

an d S ar ah ’s later bankruptcy filings lis ted a debt t o her aunt for rent pay ments. Sarah then bega n stay ing some night s with Travis Bonnano, before moving herself and R.H.M. in with Bonna no as

a perma nent living arr ang ement. Sarah and Bonna no testified conce rning their plans to marry , and Sarah did not pay rent to Bonna no. These undisputed fac ts alone are leg ally and fac tually sufficie nt
to support the t rial court’s finding that Sarah has not provided a stable hom e for R.H.M. b eca use 4

The trial court found that Sarah had chang ed R.H.M.’s residenc e four times since leaving 4 Texas. Howeve r, the trial court’s finding that Sarah has failed to provide R.H.M. with a stable home does not depe nd on the exact number of times Sarah has c hang ed R.H.M.’s re sidence

. 7th e y d e mo n s tr a te th a t R. H

. M

. ’ s “ h o me s u

r r o u n d in g s ” h a

v e c h a n g e d

. S e e D o wn e y , 2 0 1 4 WL 1 3 6 2 6 4 2 , at *3–4.
I n addit ion, the evidenc e is also leg ally and fac tually sufficie nt to support the trial court’s finding of a m at er i al and substantial chang e in Sarah’ s financ ial condition such that she
cannot meet the requirem en t s o f t h e divorce decr ee or provide a stable home for R.H.M. The orig inal divorce decr ee order ed Sarah to pay for Re es e’ s ai r trave l to California if she decide d to

move R.H.M. there , so that Reese could exercise his possessory rig hts. The court also order ed Sarah
to pay support, including making pay ments toward the mortg ag e of their marital home in L ag o Vista. Acc ording to Reese, Sarah beca me late in her reimburse ments of his trave l and late in her pay ments toward the mortg ag e. The latter forc ed Ree se to make pe rsonal pay ments to cover amounts owed by Sarah to preve nt the fore closure of the marital home. Sarah ultimately filed for bankruptc y and
soug ht to discharg e her debts to Reese, including for trave l to C al i fo rn i a and for child support. Reese te stified at t he modi fica tion hear ing that Sarah owed hi m $40,000. Sarah disputed that she owes Reese t his amount. Neve rtheless, she admitted to filing for bankr uptcy and to the fa ct that, 5 althoug h she lives rent and mortg ag e-f ree in California, she pay s more ever y month in expenses than she makes from her job. Thus, althoug h Sarah is corr ect that there has been no chang e in her income since the time of t he divorce decree , there has been a chang e in her abil i t y t o m ake financ ial ends
meet such that she cannot aff ord to live on her own with R.H.M. while also making timely pay ments

Sarah has moved to strike the supplemental rec ord filed in this Court, a t Re ese’ s reque st, 5 on October 7, 2015. The supplemental rec ord contains an order from the trial court dated September 10, 2015. I n deciding this case , we h av e n o t consi dere d the contents of this order and there fore dismiss Sarah’ s motion t o strike the Oc tober 7, 2015 supplementa l rec ord as moot. 8require d in the divorce decr ee—pa y ments that wer e part of the conditions the trial court set to allow her to move w ith R.H.M. to C alifornia in the f irst place. The trial court’s finding s on the chang es in R.H.M.’s home surrounding s and Sarah’ s financ ial condition are supported by leg ally and fac tually sufficie nt evidenc e, and they are sufficie nt in and of themselves to support the t rial court’s finding that a material and subst antial chang e has

occur red such that a modification o f co n s erva torship is justified. Given these fac ts, we cannot conclude that the trial court abused its discretion in concluding that a materia l and substantial chang e h a s o c c u r r e d

. T h is is tr

u e e v e n w it

h o u t c o n s id e r in g th e o th e r f

a c tu a l b a s e s f

o r th e tr ia l c o u

r t’ s f in d in g that a material and subst antial chang e had occur red. A ccor dingly , we ove rrule Sar ah’s f irst issue. Having co n cl u d ed that the evidenc e is leg ally and fac tually sufficie nt to support the trial court’s f in d in g th a t a ma te r ia l a n d s u b s ta n ti a l c h a n g e h a d o c c u

r r e d a n d th a t th e tr ia l c o u

r t’ s d e c is io n b a s e d o n th is e v id e n c e w a s r e a s o n a

b le , w e n o w tu

r n to a n a n a ly s is o f th e tr ia l c o u

r t’ s f in d in g th a t a mo d if ic a ti o n of conse rvatorship wa s in R.H.M.’s best interest. See Tex. Fam. Code § 156.101(a )(1) (A).

Best Inter est Sarah next contends that the trial court abused its discretion by finding that it is in R. H

. M

. ’ s b e s t in

te r e s t to b e mo v e d to T e xa s f r o m h is “ w o n d e r f

u l c o mm u n it y ” in Ca li f o r n ia

. I n c lu d e d within this g ener al complaint are Sarah’ s asser tions that the trial court did not consider fac tors rele vant to child-re location decisions and that the evidenc e was leg ally and fac tually insufficient to support the trial cour

t’s best-intere st finding. The oft-re peate d list of fac tors a court looks to when deciding a child’s best interest includes: (1) the desires of the child; (2) the e motional and phy sical nee ds of the child now a nd in

9the future; (3) the emotional and phy sical dang er to the child now and in the future; (4) the pare ntal

abilities of the individuals seeking custody ; (5) the prog rams available to assist these individuals to promote the be st interest of the c hild; (6) the plans for the child by these individuals or the ag ency seeking custody ; (7) the stability of the home or proposed place ment; (8) the acts or omissions of the
pare nt which may indicate that the exis ting pare nt-child rela tionship is not a proper one; and (9) any

excuse for the acts or omissions of the pare nt. Holley v. Adams , 544 S.W .2d 367, 371–7 2 (T ex . 1976). I n addition to the Holley fac tors, the Texas Supreme Court has identified additional fac tors

a trial court may consider when the court’s decision involves reloc ation issues: (1) the rela tionship with and presence of ex tended family ; (2) the prese nce of friends; (3) the pre sence of a stable and

s u p p o r ti v e e nvironment; (4) the custodial pare nt’s improved financ ial situation and ability to provid e

a better standa

rd of living for the c hild; (5) the positive impact of the custodial pare nt’s emotional and mental state on the ch i l d ; (6) the non-custodial pare nt’s rig ht to have reg ular and meaning ful
contac t; (7) the ability of the non-custodial pare nt to reloc ate; and (8) the ability of the non-custodial
pare nt to adapt his or her work schedule to the child. Lenz v. Lenz , 79 S.W .3d 10, 15–18 (Tex. 2002). A court may also consider the child’s stability and the need to preve nt constant litigation over custody

. In re V.L.K. , 24 S.W .3d 338, 343 (Tex. 2000). There is no brig ht-line test for whether these fac tors milit ate in favor of modification; the analy sis in this context is nece ssarily fac t-driven. Lenz , 79 S.W .3d at 18–19.

Sarah appea

rs to take the position that without d i s cu s s i n g eac h fac tor in its bestinterest analy sis, the trial court has nece ssarily abused its discretion. L ikewise, Sarah challeng es the leg al and fac tual sufficie ncy of each of the t rial court’s finding s of fact re lating to its best-intere st

10finding

. These arg uments presuppose that if the evidenc e is insufficient to support a p ar t i cu l ar

finding , then the trial court has committed reve rsible err or. Or, if the trial court has failed to make

a finding conce rning a particula r fac tor, the arg ument continues, then the trial court has err ed. We do not believe either arg ument is corr ect, and Sarah has not cited any case law to support these propositions. I mplicit in the fac t that there is no brig ht-line test for deter mining the best interest of
t h e child is the idea that a trial court’s finding s of fac t and conclusions of law need not include a consideration of ever

y fac tor listed above. Nor is the conclusion that there is insufficient evidenc e
to support a particula

r fac tor fata l to a trial court’s best-intere st finding

. I nstead, we will, as we must, examine t he rec ord under an abuse- of-discr etion standard to deter mine whether the trial court’s decision has any rea sonable basis in the evidenc e befor e it at trial, such that it could have rea sonably conclude d that a modification of R.H.M.’s residenc e was in his best interest. Wit h that construct in mind, we now turn to an e x amination of the e vidence

.

As descr ibed above, the evidenc e in this case is leg ally and fac tually suffici en t to

s u p p o rt t h e t ri al court’s finding s that Sarah did not provide a stable home for R.H.M. afte r she moved him to California and that at least some explanation for this lack of stability is her financ ial difficulties. Thus, while Sarah complains that the trial court did not take into acc ount how stability fac tored into the best-intere st analy sis and that R.H.M.’s stability is promoted only by rema ining in California, the evidenc e belies that claim. Although moving R.H.M. from California to Texas will uproot R.H.M. from one home to another , that is tru e o f any modification in which a child’s residenc y is chang ed. The more salient consideration is whether such a move will ultimately result in a more stable home for R.H.M. As the trial court conclude d, the evidenc e demonstrates that the

11court g ave Sarah the o p portunity to establish a stable home in California, but she moved R.H.M.

sever al times, either beca

use of her financ ial shortcoming s or a romantic rela tionship, or both. The evidenc e also de monstrates that Reese has taken g rea t pa ins to maintain R.H.M.’s fr iendships and
t he life he knew in Texas befor e he moved to California, throug h friends, extended fam i l y , an d churc h involvement in Texas during the ir time toge ther on visits.

Although we have no doubt that Sarah loves R.H.M. and has done her very best to provide a safe and happy home for him, those are not the only fac tors a trial court may consider. The trial court can and shoul d al s o co n sider whether eac h pare nt is allowing and promoting the other
pare nt’s rela tionship with the chil d

. T h i s co-pa renting rela tionship betwee n divorce d pare nts is essential to the well-be ing of the child. And the evidenc e demonstrates that Sarah has had difficulty
co-pa renting , while Reese has g one out of his way to encour ag e R.H.M.’s contac t with an d g ood opinions of Sarah during their visits. Reese testified that his rela tionship with R.H.M. has declined beca use of decisions Sarah has made since her move. This includes testimony that Sarah has limit ed Reese’ s communications with R.H.M. since the time Sar ah was he ld in contempt for violating the orig inal divorce decr ee. Reese testified that if Sarah lear ned that Reese had spoken to R.H.M. while he wa s at afte r-sc hool car e, then she would not a llow the m to speak further later in the day

. As an example of the disparity betwee n the pare nts in their allowanc e of communication betwee n R.H.M. and the non-possessory pare nt, Reese introduced evidenc e showing that in a period of 61 day s while in Sarah’ s car e, R.H.M. was a llowed to speak to Ree se on the phone for a total of 56 minutes; the evidenc e also showed that while in Reese’ s car e for 64 day s, R.H.M. was allowed to speak to Sarah

12for a total of 227 minutes. Reese testified that if the court allowed R.H.M. to live with him in Texas,

he would insist that R.H.M. st ay in reg ular, sig nificant c ontact with Sara h. 6 Sarah’ s own testimony s h o we d t h at when Reese contac ted her by text to ask if he could s peak to R.H.M., she considered Reese’s behavior harassmen t , ev en if he sent her only one
text messag e per day

. She also testified that she would not forc e R.H.M. to speak to Reese. Reese testified that Sarah told him during co-pa renting counseling that she would not co-pa rent with him and that she quit attending co-pa renting counseling with Reese after three sessions. Although the evidenc e shows that, as a g ener al rule, Sarah share s information with Reese conce rning R.H.M., she admitted that she makes an executive decision about what information she needs to share with Reese.

Finall y , the testimony sug g ested that Sarah has not been willing to foster a g ood rela tionship betwe en Reese and R.H.M.’s community in California. F or example, Sarah pr ovided R.H.M.’s s ch o ol with neg ative information conce rning Reese’ s past difficulties with alcohol. I n addition, Sarah injec ted the pre sence of her boy friend and later fianc é B onnano into their phy sical exchang es of R.H.M. On two occa sions ( one not r elated to a n exchang e), Bonna

no used profa

nity direc ted at Ree se in R.H.M.’s prese nce.

I n contra st, there was evidenc e befor e the trial court th at Reese had chang ed drama tically since the time of the di vorce decr ee, not only in his abstinence from alcohol but also in his willingness to co-pa rent with Sarah and in his sole focus on the best interest of R.H.M.

Sarah contests much of Reese’ s testimony conce rning their co-pa renting

. The trial court, 6 howeve r, is p er m itted to make rea sonable infere nces from the evidenc e it hear d g iven its fac tfinding role in evalua ting witness cre dibilit y and demea nor. In re A.L.E. , 279 S.W .3d 424, 427 (Tex. App.—Houston [14th Dis t.] 2009, no pet.). 13Although he lives in Texas, Reese reg ularly volunteere d at R.H.M.’s school in California. When R.H.M. strug g led with r eading in school, Reese e nrolled R.H.M. in a prog ram while in Te x as that helped bring R.H.M.’s rea ding proficie ncy back to an appropr iate level. Reese also maintained the life for R.H.M

. that was left behind when he moved to California, allowing R.H.M. to maintain friendships and community involvement in Texas. Stil l more importantly , Reese demonstrated that

even while R.H.M. was in his possession, he would promote R.H.M.’s rela tionsh ip with Sarah, which he did c onsistently

.

Sarah c omplains that the trial court’ s order is not in R .H.M.’s best intere st beca use he has a “wonde rful community ” in California. I n addition, Sarah comp l ai ns that she will be put throug h g rea t hardship if R.H.M. is returne d to Texas. Sarah testified that she would move back to Texas if the trial court returne d R.H.M. to Texas. I n doing so, Sarah asser ts that she will lose both her job and her rela

tionship with her fianc é, Bonna no, who testified that he will not move to Texas 7 with he r. Whil e the impact on a pare nt’s emotional and mental state and the ability to r eloca te are fac tors a trial court may consider, they do not trump the weig ht of the other my riad fac tors that have been outlined by

courts for

considera

tion in the best-interest ana ly sis. At the end of the day , we have to decide whether the trial court abused its discretion based on the rec ord befor e it. And, based on the rec ord befor e us, we cannot say that the trial court abused its discretion in concluding that it is in the best interest of R.H.M. for Reese to be g iven the rig ht to designa te R.H.M.’s primary residenc e. Ac cording ly , we ove rrule Sar ah’s se cond issue.

There is a lso e vidence in the rec ord that Sarah held the same job at the same salary while 7 she lived in Texas befor e the divorc e. 14Appellate Att orneys’ F ees Finally , Sarah asser

ts that the trial court abused its discretion in order ing that Reese

rec over $30,000 in appellate attorney s’ fee s from her in the event he succe ssfully defe nds her appea l.

Rule 270 of the Texas Rules of Civil Procedur e provides that a trial court may permit additional evidenc e when it clea rly appea rs nece ssary to the administration of justice. Tex. R. Civ. P. 270. I n deciding whether to g rant a motion to reope n the evidenc e, a trial court considers whether (1) the moving party showed due diligenc e in obta ining the evidenc e, (2) the proff ere d evidenc e is decisive, (3) rec eption of the evidenc e will cause undue delay , and (4) g ranting the motion will cause injusti ce. Hernande

z v. Lautensack

, 201 S.W .3d 771, 779 (Tex. App.—For t Worth 2006, pet. denied)

. This Court has written that these “ar e just fac tors to be considere d” and that a trial court’s rulin g o n a m o t i on to reope n should rar ely be disturbed even if none of the fac tors is prese nt. Cox v. W ilkins , No. 03-05-00110- CV, 2006 WL 821202, at *3 (Tex. App.—Austin Mar. 31, 2006, pet. denied) (mem. o p . ). C o nsistent with this holding, if the trial court made a rea soned decision based on the rec ord bef

ore it in reope ning the evidenc e, we will not dis turb it. 8 Admittedly , the rec ord befor e us prese nts a close call. The rec ord shows that Reese did not reque st attorney s’ fee s for fee s incurre d at trial or on appea l during the modification hear ing, which he initiated. And, upon the trial court’s notification to the parties that it intende d to modify the divorce decr ee in his favor but that eac h party would bear his or her own attorney s’ fee s, Reese submitt ed a proposed judgme nt to the trial court ref lecting that eac h party would bear his or her own

The parties have not cited and we have not found a case in which an appel l at e court has 8 r e v e r s e d a tr ia l c o u

r t’ s d e c is io n o n w h e th e r to r e o p e n th e e v id e n c e f o r c o n s id e r a

ti o n o f a tt o r n e y s ’ f e e s . 15fee s. Only afte r Sarah filed her notice of appea l and soug ht and was g rante d a stay by this Court did 9
Reese file his motion seeking a modification of the trial court’s order to allow him rec overy his trial and appellate attorney s’ fee s. There was no evidenc e prese nted at the hear ing on Reese’ s reque st 1 0 to reope n the evidenc e on attorne y s’ fe es of the f our fa ctors outlined by

the cour ts. Neve rtheless, it is appar ent from the rec o rd that the trial court made a rea soned decision that was within its discretion. Ag ain, Reese soug ht to reope n the evidenc e and to r ecove r his trial and appellate attorney s’ fee s. The trial court, howeve r, denied Reese’ s reque st for his attorney s’ fee s at trial while g ranting conditional appellate attorney s’ fee s. Ba sed on these actions by the trial court, it is appar ent that the trial court weig hed the merits of Reese’ s reque sts and found

one l ac k i n g while finding in favor of the other. Considering the rec ord befor e the trial court, we
cannot say that the trial court abused its discretion in concluding that while Reese failed to exercise diligenc e in reque sting his trial attorney s’ fee s, he exercised diligenc e in reque sting his appellate fee s. L ikewise, the tria l court would have be en within its discretion to conclude tha t the evidenc e

o n ap p ell ate attorney s’ fee s was decisive and that the rec eption of the evidenc e would not cause undue delay or an injusti ce. Ba sed on the rec ord befor e us, we c annot conc lude that the trial court abused its discre tion in awarding Reese c onditional appellate a ttorney s’ fe es.

Sarah contends that Reese’ s submissi on of a final judgme nt to the trial court in a form in 9 which eac h party was to bear its own attorney s’ fee s waived his later reque st to reope n the evidenc e o n a tt o r n e y s ’ f e e s . We d is a g r e e . Re e s e a r g u a b ly h a d n o r e a s o n to c o n s id e r r a is in g a p p e ll a te a tt o r n e y s ’ fee s until the pos sibili ty of an appea l was raised, and under the circ umstances presented to us, we cannot c onclude that he waived his re quest for a ppellate a ttorney s’ fe es. The trial court denied Reese’ s reque st for rec overy of his trial attorney s’ fee s, and Reese 1 0 has not appe aled the c ourt’s orde r. 16We there fore overr ule S ar ah ’s t h i rd issue and aff irm the trial court’s awa rd of conditional appellate attorney s’ fe es to Reese

.

CONCLUSION Having overr

uled eac h of Sarah’ s issues for the rea sons explained, we aff irm the trial court’ s modification order

.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Affir med Filed: Nove mber 4, 2015

17