## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00012

- CV

IN THE MATTER OF THE MARRIAGE OF AMBER BROOKS AND MATTHEW JUSTIN BROOKS AND IN THE INTEREST OF A.B., L.B., AND E.B., CHILDREN

On Appeal from the C ounty Court at Law

Bowie County, Texas Trial Court No. 17D1415

- CCL

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION A mber Brooks and Matthew Justin Brooks were divorced in 2018. The agreed divorce d ecree appointed Amber and Matthew joint managing conservators of their three sons , A.B., L.B., and E.B., with Amber having the right to designate the children’s primary residence

. In 2022, A mber filed a petition to modify the parent

- child relationship so that she could move with the children to Maine. After finding a substantial and material change in the parties’ circumstances, the trial court modified the agreed divorce decree by allowing Amber to relocate the children and by altering the dates for Matt hew’s possession of and access to the children
. 1 On appeal, Matthew argues that the trial court abused its direction in allowing Amber to relocate the children t o Maine because (1) there was no substantial or material change in the parties’ circumstances a nd (2) relocation was not in the children’s best interests

. Because we find that sufficient evidence showed a substantial and material change in the parties’ circumstances and that relocation was in the children’s best interests, we affirm the trial co u rt ’s judgment. I. Standard of Review “We review the trial court’s decision to modify conservatorship under an abuse of discretion standard.” In re P.M.G. , 405 S.W.3d 406, 410 (Tex. App.

— Texarkana 2013, no pet.) (citing Gillespie v. Gillespie , 644 S.W.2 d 4 49, 451 (Tex. 1982)). “A trial court abuses its discretion only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle.” Id
. ( quoting In re Jeffr ies , 144 S.W.3d 636, 638 (Tex.

1 Amber a lso sou ght , and the trial court ordered , child support from Matth ew i n the amount of $1 ,288.40 per month
. Matthew does no t complain of the order to pay chi ld support.3

App.

— Texarkan a 2 004, no pet.) ( citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985 )) )
. “Under this standard, legal and factual sufficiency are not independent grounds for asserting error, but are relevant factors in determining whether the t r i al court abused its discretion.” Id
. (citing Niskar v. Niskar , 136 S.W.3d 749, 753 (Tex. App.

— Dallas 2004, no pet.); In re Davis , 30 S.W.3d 609, 614 (Tex. App.

— Texarkana 2000, no pet.)). “In determining whether the trial court abused its discretion, we c on sider 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.” Id
. (citing In re W.C.B. , 337 S.W.3d 510, 513 (Tex. App.

— Dallas 2011, no pet.))
. Since Matthe w di d not have the burden of proof at trial, legal sufficiency is analyzed as a

no - evidence challenge. See In re A.B.O. , No. 06

- 14

- 00071

- CV, 2015 WL 2236593, at *6 (Tex. App.

— Texarkana 2015, no pet.) (mem. op.) (citing Giron v. Gonzalez , 247 S.W.3d 302, 3 0 6 ( Tex. App.

— El Paso 2007, no pet.) (citing Croucher v. Crouch er , 660 S.W.2d 55, 58 (Tex. 1983)) )
. “In assessing factual sufficiency, we are to consider all of the record evidence, not just the evidence supporting the judgment.” Id
. (quoting In re G.R.W
. , 19 1 S.W.3d 896, 899 (Tex. App.

— Texarkana 2006, no pet.) (citi ng Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406

– 07 (Tex. 1998)) )
. The trial court’s findings are set aside “only if they are so contrary to the overwhelming weight of the evidence as to b e cle arly wrong and manifestly unjust, shock the conscience, or clearly demonstrate bias.” Id
. (quoting In re C.R.J. , No. 06

- 13

- 00053

- CV, 2014 WL 199209, at *5 (Tex. App.

— Texarkana Jan. 17, 2014, no pet.) (mem. op.) (citing Cain v. Bain , 709 S.W.2d 17 5, 1 7 6 (T ex. 1986) (per curiam)) )
.4

As the fact

- finder in a bench trial, the trial court determines “ the credibility of the witnesses and the weight [ of ] their testimony. ” City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005). As “ sole arbiter of a wit ne s s ’ dem eanor and credibility, ” the tr ial court “ may believe all, part, or none of a witness’ testimony. ” In re E.M. , No. 06

- 17

- 00083

- CV, 2017 WL 5586633, at *2 (Tex. App.

— Texarkana Nov. 21, 2017, no pet.) (mem. op.) (citing In re H.R.M. , 209 S.W.3d 105, 1 0 9 (Tex . 2006) (per curiam)). “Where, as here, no findings of fact and conclusions of law are filed, it is ‘implied that the trial court made all the findings necessary to support its judgment.’” In re P.M.G. , 405 S.W.3d at 410 (quoting Worford v. Sta mp er , 801 S.W.2d 108, 109 (Tex. 1990) (p er curiam) ). II. Sufficient Evidence Showed a Substantial and Material Change in the Parties’ Circumstances “A court with continuing, exclusive jurisdiction may modify an order that provides for the conservator shi p, su p por t, or possession of and access to a child.” T EX . F AM . C ODE A NN . § 156.001. In relevant part, Section 156.101 states, (a) The court may mod ify an order that provides for the appointment of a conservator of a child, that provides the terms and co nd iti o ns of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child an d: (1) the circumstances of the child, a conservator, or other party affected by the order have materi all y and sub stantially changed since the earlier of: (A) the date of the rendition of the order; or (B) the date of the signing of a mediated or collab orative law settlement agreement on which the order is based
. . . .5

T EX . F AM . C ODE A NN . § 156.101(a). M at the w ar gues that the Department failed to establish a material and substantial change in the parties’ circumstances. We disagree. “A court ’ s determinati on of whether a material and substantial change of circumstances has occurred is not based on ri gid r ule s an d is fact

- specific.” In re T.I
. , No. 06

- 20

- 00089

- CV, 2021 WL 3669339, at *5 (Tex. App.

— Texarkana Aug. 19, 2021 , no pet. ) (mem. op.) (citing In re A.J.M

. , No. 10

- 14

- 00284

- CV, 2016 WL 936869, at *2 (Tex. App.

— Waco Mar. 10, 2016, no pet.) (mem. o p.) ). “ M ate rial changes may be established by either direct or circumstantial evidence.” Id
. (citing In re A .J.M
. , 2016 WL 936869, at *2 ). “Whether a particular change is material and substantial depends on the circumstances of each case.” Id
. (citing In re A. J .M
. , 2016 WL 936869, at *2 ). “[R] emarriage of a parent who has been appointed a conservator can constitute a material change of circumstances. ” Id. at *8 (citing In re S.R.O
. , 143 S.W.3d 237, 244 (Tex. App.

— Waco 2004, no pet.) ); see In re K.S.F
. , No . 0 5

- 21

- 01030

- CV, 2023 WL 1501632, at *2 ( Tex. App.

— Dallas Feb. 3, 2023 , no pet. ) (“ Some examples of material changes include
. . . remarriage by a party
. . . .”). Also, w here, as here, a parent seeks to modify a child support obligation , a change in a par e nt’ s income can also constitute a material and substantial change. See In re Y.E. , No. 14

- 20

- 00608

- CV, 2022 WL 364074, at *3 (Tex. App.

— Houston [14th Dist.] Feb. 8, 2022, no pet
. ) (mem. op.); In re K.F
. , No. 02

- 18

- 00187

- CV, 2018 WL 68 16119, at *4 ( Te x. A pp.
— Fort Worth Dec. 27, 2018, pet
. denied) (mem. op.) (“ It was undisputed at trial that Father ’ s income had significantly increased from 2013 to 2016 and thus had changed since the6

Agreed Order. This fact alone is sufficient to establi sh a material an d s u bst antial change in his circumstances, permitting the trial court to modif y the Agreed Order. ”). Here, Amber testified that, since the 2018 agreed divorce decree, she had remarried and had a child with her new husband. As a result, A.B., L.B., an d E.B
. ha d a new stepfather and sibling. Both Amber and Matthew testified about substantial changes to their income. Amber said that h er husband , a n assistant produce manager at Albertson’s, had a job offer in Maine to become a produce man ager a t S haw’s groce r y st ore . Amber , who made $48,000.00 as a Texas middle school teacher, had a contract with a school in Maine that was going to pay her $77,200.00 to teach
. Matthew testified that he made “ around $17.50, $18.00 maybe ” per hour in 20 18 bu t was , at the time of trial, makin g $ 24 .00 an hour
. We find that the record presented ampl e evidence to support the trial court’s decision that the circumstances of the parties had materially and substantially changed since the entry of the 2018 agr eed divorce decree . A s a result, we c onclude that the trial court did not abuse its discretion in making such a finding. See In re T.I. , 2021 WL 3669339 , at *9 (“ Since some evidence of a substantive and probative character exists to support the trial cou rt ’ s decision, we find that the trial court did not abuse its discretion by finding that a material and substantial change had occurred sufficient to warr ant its ordered modifications. ”). Accordingly, we overrule Matthew’s first point of error.7

III. S uff

ic ient Evidence Sh owed that Relocation Was in the Children’s Best Interests A. Relevant Factors The Texas Family Code does not list the factors to be considered by the trial court in its determination of a child’s best interest in a modification proceedi ng. With respect to relo c ation,

“ [ g ] ener ally, courts have moved ‘ from a relatively strict presumpti on against relocation and toward a more fluid balancing test that permits the trial court to take into account a greater number of relevant factors. ’ ” In re N .W .C
. , No. 05

- 21

- 00882

- CV, 2023 WL 355 176, at *2 (Tex. App.

— Dallas Jan. 23, 2023 , no pet. ) (mem. op.) ( quoting Lenz v. Lenz , 79 S.W.3d 10, 14

– 15 (Tex. 2002) ). “ Increasing geographic mobility and the availability of easier, faster, and cheaper communic atio n have in part ac count e d for this shif t in perspective. ” Lenz v. Lenz , 79 S.W.3d 10, 15 (Tex. 2002)
. “ There is ‘ no bright

- line test, ’ however, because determining whether relocation is in a child ’ s best interest is ‘ intensely fact driv en. ’ ” In re N.W .C
. , 2023 WL 355176, at *2 (quoting Lenz , 79 S.W.3d at 19 )
.

“ In Lenz , the [Texas] supreme court
. . . identifie d a number of factors that may help give meaning to the best

- interest standard in the context of relocation. ” Id. (citing Lenz , 79 S.W.3d at 15

– 16, 19 )
. Those non - exhaus t ive factors are : the reasons for and against the move; education, health, and leisure opportunities afforded by the move; accommodation of the child ’ s special needs or talents; the effect on extended family rela tionships; the effect on visitat ion and com m unication with the noncustodial parent; the noncustodial parent ’ s ability to re locate; and the child ’ s age.8

Id. (citing Lenz , 79 S.W.3d at 15

– 16 ). We may also employ relevant Holley 2 factors and are guided by imperatives to: (1) assure that child ren will h a v e frequent an d continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to s hare in the r ight s and duties of r aising the i r child after th e parents have separated or dissolved their marriag e. Lenz , 79 S.W.3d at 14 (citing T EX . F AM . C ODE A NN . § 153.001(a)). B. The Evidence at Trial At the time of trial, the boys were ten , eight , and six years old. Amber testif ied that she

s o ugh t to move the children to Brunswick, Maine , so that she could better support her children financially. She testified that she would be making $30,000.00 more in Maine than in Texas and that h er husband would also be re ceiv ing a promotio n. Amber v isi t e d the schools in Maine and said that t hey had approximately half of Texas’s “student

- to
- teacher ratio ” and that they were also better rated. She said that the schools in Maine offer ed many extra
- curricula r activities the children were inte rested in, incl u ding hock ey and skiing. Amber was looking forward to leisure activities with the children , including v isiting nearby islands and lighthouses, going deep

- sea

2 The Holley factors are: (A) the desires of the child ; (B) t h e e motiona l and physical nee ds o f the child now and in the future ; (C) the emotional and p hysi cal danger to the child now and in the future ; (D) th e parental abilities of the indivi duals seeking custody ; (E) the programs available to assist these individu a l s to promote the bes t inter est of the child ; (F) th e plans for the child by these individ uals
. . . ; (G) the st ability of the home
. . . ; (H) the acts or omissions of the parent that may indicate the existing parent
- child relationship is not a proper one ; a n d ( I) any excuse for the acts or omissions of the paren t. In re A.B.O. , 2015 WL 2236 593, at *7 (quoting Ho lley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976) (citations omitted)).9

fishing, and parti cipating in community activiti es and fest ival s in both Brunswick and nearby Port land. She te stif

ied that the boys shared a bedroom in Texarkana , but where she planned to live in Maine , the house had a bedroom for each child. According to Amber , she discussed her plans to relocate w ith Matthe w in the summer of 2021 , and they “talked a bou t [Matthew] mov ing up to Maine.” Matthew worked for Quality Petroleum as a “backup” driver and was “around the assistant manager level

. ” He agreed that he “did seriously think abo ut” moving t o Maine but decided against it
. On April 10, 2022, Matthew i nfor med Amber that he was not going to move because “he didn’t want to take the risk of losing” “a friend of his named K atie.” Matthew clarified that , even though he no longer h ad

c ontact with Katie , he was no longer interested in moving
. Even so, Matthe w ag reed that, with th e ex tra income in Maine, Amber could afford to the take the children on their fi rst vacation since their divorce. Amber told the trial court that she had a go od friendshi p with Ma tthew, “couldn’t ask for a better dad for [her] boys,” and d id not wish to tak e th e children away from him but only wanted “a better life for [the children]. ” Amber testified that the children could spend all holidays and

summ ers with Matthew and that “his biggest objection . . . was he didn’t have a babysitt er” to watch them whi le h e was working. Amber also offered to pay f or the children’s transportation to Matthew and agreed to fly Matthew to Maine “either in March or in O ctob er” for a long

wee kend
. A mber testified that that would allow Matthew more visit ati on than the sch edu le in the agreed divorce decree. She also said that the children would “Facetime” Matthew when they were not physically with him.10

Amb er said that insurance fo r the boys in Maine would cost $200.00 less than what it cost in Tex as. S h e testified that her youngest son ’s “paralysis of his intestines” required drives from Texarkana to Dallas or Little Rock, Arkansas, but would only require a t wenty
- mi n ute drive from Brunswick to Portland, which had a “highly recommen ded pediatric g ast roe n t erologist
. ” 3 Amber also testified that her oldest son was in therapy for being bullied in Texarkana. Matthew testified that it w ould be in the children’s best inte r ests to remain in Texas , stating, “ [A] ll my family is here. Her famil y is here. The y h a v e aunts, uncles, grandparents here.” Matthew als o felt that it would be in his children’s best interests to see him re gularly
. C. Analysis The evidenc e at trial showed that Amber wished to move to increase her family’s financial secu rity to better pro vide f o r her children. Amber testified, and Matthew did not contest, that Maine had better rated sc hools with a t welve

- to
- one student

- to
- teacher ratio versu s Texas’s twenty
- four

- to
- one ratio. Amber testified about extracurricular activiti es that the children w e re i nterested in and the leisure activities she would enjoy with them in Brunswick and Portland. She a lso testifie d that her youngest son required sp ecialized medical trea tment that
was mo re easily accessible to him in Maine and implied that her older s o n mig ht g et relief by moving away from his Texas bullies. Amber also testified that she would afford Matt hew a visitat ion schedule that was more generous than the one currently specified by the agreed divorce decree.

3 Amber testified that Matthew had violated the agree d divorce decree by f a i l ing to carry insurance on the children as ordered.11

Matthew agreed that the move to M a i ne wou ld p rovide Amber with more financial stability, but he testified that it was not in the best inte rest s of the chil dren because they would not get to see him or their extended family in Texas as often as they currently did. In light of the evidenc e , t he t ria l co urt could hav e found that, even after a move to Maine, (1) Amber would assure that the chi ldre n had frequen t and continuing contact with Mat t he w , (2) both parents would provide the children with a safe and stable environment, and (3) b oth pa r e n t s wou ld shar e in the rights and duties of raising their children
. The trial court could have reasoned (1) that Matthew would have more access to the chil dren under Amber’s plan than in the agreed divorce decree, (2) that the children would b e free to v i d e o cha t wi th Matthe w and other Texas family members anytime , and (3) that they would enjoy the ir holidays a nd summers with Matthew and their f amily members in Texas. It also could h ave found that nothing hampered Matthew’s ability to relocate to M aine i f h e wish ed to d o so , tha t the children would enjoy better schools and health care in Maine, and that the children would generally be afforded a bett er life due to the change in Amber’s financial circum stances if they were allowed to move. After weighing t h e Lenz and other relevant fa ctor s, we conclude that the trial court had sufficient evidenc e up on which to exerci se its discretion and did not act in an unreasonable or arbitrary manner or without ref erence to any guiding principle s by finding that the mo v e t o Maine would be in th e c hild ren’s best interests. As a result, we overrule Matthew’s last point of

error.12

IV. Conclusion We affirm the tria l court’s judgment.

Charles van Cleef Justice Date Submitted: August 16, 2023 Date Decided: A u gust 24 , 2023