COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00276-CV 

IN THE INTEREST OF K.R. AND 

N.R., CHILDREN

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FROM THE 442ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 2010-61172-393

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MEMORANDUM OPINION1

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I. Introduction

In three issues, Appellant Mother appeals the trial court’s judgment, which 

denies her request for standard possession and modifies the amount of child 

 

1See Tex. R. App. P. 47.4.
2

support paid by Appellee Father. We affirm in part and reverse and remand in 

part.

II. Factual and Procedural Background

The trial court signed the agreed divorce decree on July 7, 2011, setting up 

child support and possession for the parties’ two children, K.R. (age ten at the 

time) and N.R. (age four at the time). In June and July 2011, while the divorce 

was pending, N.R. was tested for autism. N.R.’s initial special education services 

review with Frisco ISD was on July 27, 2011, and he started going to a special 

education school, Monday through Friday from 7:40 a.m. to 10:30 a.m., while 

K.R. attended elementary school from 7:50 a.m. to 3 p.m. 

A. Terms of the 2011 Decree

The trial court appointed the parents as joint managing conservators and 

gave Mother the exclusive right to designate the children’s primary residence 

“within 20 miles of Boals Elementary School,” which is in the Frisco ISD. The 

agreed decree also set out a nonstandard possession order, which the trial court 

determined was in the children’s best interest “due to the parties’ work 

schedules.” 

In the nonstandard possession order, the trial court provided that Father 

would have possession of the children:

1. Each Friday, beginning at 6:00 p.m., until the following 

Monday at 6:00 p.m.

2. If [Mother] provides notice to [Father] by 5:00 p.m. on any 

Friday that she will be working the Emergency Room on the 
3

following Tuesday, then [Father] shall instead have possession of 

the children that Friday, beginning at 6:00 p.m., until the following 

Sunday at 6:00 p.m. and from 6:00 p.m. that Tuesday until school 

resumes the following morning.

3. Holidays - The parties shall come to a mutual agreement as to 

holiday possession to allow the children to see each party for a 

portion of school-recognized holidays.

4. [Mother] shall have possession of the children at all times not 

specifically provided in this order.

The decree also included a right of first refusal: If one of the parents would be 

absent for more than 24 hours while the children were in his or her care, the 

other parent would have the right to care for the children during that absence.

Mother agreed to nonstandard possession because she had started working 

weekends in anticipation that N.R. would need special arrangements because of 

his autism. 

The decree provided for Father to pay child support to Mother in the 

amount of $600 per month and to pay the children’s health insurance “at a 

reasonable cost of $502.19.”

B. Child Support Review Order

On October 29, 2014, an associate judge signed a child support review 

order. See generally Tex. Fam. Code Ann. §§ 233.001–.029 (West 2014 & 

Supp. 2015). In the order, the associate judge found that Father’s gross monthly 

resources were $6,162 and that his net monthly resources were $4,469.39. 

Applying the statutory 25% for child support, Father was ordered to pay $1,117 in 

monthly child support starting November 1, 2014. 
4

C. New Trial Motion

Father moved for a new trial, complaining that applying the statutory child 

support guidelines to him would be inappropriate, unjust, and not in the children’s 

best interest because the amount of child support in the divorce decree was 

agreed to using different calculations based on the parties’ and children’s 

circumstances and the agreed nonstandard possession schedule.2

Mother then filed a cross-petition to modify the child support amount in the 

original decree, alleging, among other things, that the circumstances of the 

children or the parties had materially and substantially changed since the date of 

rendition and that an increase in child support would be in the children’s best 

interest. See id. § 156.401 (West Supp. 2015). She also asked for modification 

from nonstandard to standard possession. See id. §§ 153.311–.312, 156.101

(West 2014).

On January 6, 2015, the trial court held a hearing, issued an order setting 

aside the October 2014 child support review order, and reset all remaining issues

for a final hearing in March. After the hearing before an associate judge, Mother 

filed a request for de novo trial on certain issues, including (1) the amount of child 

support and (2) possession of the children. 

 

2Father did not indicate in his motion what calculations were used. 
5

D. De Novo Trial

A few months later, the trial court granted the modification of child support 

in part, ordering Father to pay Mother $792.50 per month in child support, and 

denying the remainder of Mother’s requests. Mother filed a request for findings 

in the child support order, see Tex. Fam. Code Ann. § 154.130(a) (West 2014), 

and the trial court set out the following statement on guidelines in the order:

In accordance with Texas Family Code section 154.130, the 

Court makes the following findings and conclusions regarding the 

child support order made in open court in this case on April 22, 

2015:

1. The application of the percentage guidelines in this case 

would be unjust or inappropriate.

2. The net resources of [Father] per month are $6,582.22.

3. The gross resources of [Mother] per month are $4,833.33.

4. The percentage applied to the first $8,550 of [Father’s] net 

resources for child support is 12.04 percent.

5. 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 Court applied the percentage previously agreed to by 

the parties to [Father’s] current income.

Mother moved for a new trial, objecting to the amount of child support 

because (1) the 2011 decree never mentioned any percentage, (2) the parties 

never agreed to a percentage but rather to an amount, $600, and (3) the trial 

court made a math error calculating its percentage. Mother also argued that the 

evidence at trial showed that while Father’s income and the children’s expenses 
6

had increased, her income had decreased. She complained that the trial court 

had abused its discretion by awarding less child support than she needed and by 

refusing to order standard possession. 

III. Discussion

Most appealable issues in family law cases are evaluated for an abuse of 

discretion, see Herzfeld v. Herzfeld, No. 05-10-01298-CV, 2012 WL 6061772, at 

*2 (Tex. App.—Dallas Dec. 6, 2012, no pet.) (mem. op.), and, indeed, this is the 

standard of review applicable to the issues Mother raises here. 

A. Standard of Review

A trial court abuses its discretion if it acts without reference to any guiding 

rules or principles, that is, if its act is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 

(Tex. 2004). A trial court also abuses its discretion by ruling without supporting 

evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). And it

abuses its discretion if it fails to analyze the law correctly or misapplies the law to 

established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

In our review of family law matters under the abuse of discretion standard, 

legal and factual sufficiency are not independent grounds of error but are 

relevant factors in deciding whether the trial court abused its discretion. See In 

re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on 

reh’g); see also Herzfeld, 2012 WL 6061772, at *2; In re W.M., 172 S.W.3d 718, 

725 (Tex. App.—Fort Worth 2005, no pet.). In determining whether there has 
7

been an abuse of discretion because the evidence is legally or factually 

insufficient to support the trial court’s decision, we consider whether the court 

had sufficient information upon which to exercise its discretion and whether it 

erred in its application of that discretion. In re M.M.M., 307 S.W.3d 846, 849 

(Tex. App.—Fort Worth 2010, no pet.); W.M., 172 S.W.3d at 725; T.D.C., 91 

S.W.3d at 872. “The traditional sufficiency review comes into play with regard to 

the first question. With regard to the second question, we determine, based on 

the elicited evidence, whether the trial court made a reasonable decision.” 

Newell v. Newell, 349 S.W.3d 717, 721 (Tex. App.—Fort Worth 2011, no pet.)

(quoting W.M., 172 S.W.3d at 725 (footnote omitted)).

Regarding sufficiency of the evidence, 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 of evidence from giving 

weight to the only evidence offered to prove a vital fact, (3) the evidence offered 

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

establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 

444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 

S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining 

whether there is legally sufficient evidence to support the finding under review, 

we must consider evidence favorable to the finding if a reasonable factfinder 

could and disregard evidence contrary to the finding unless a reasonable 
8

factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 

651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

When reviewing an assertion that the evidence is factually insufficient to 

support a finding, we set aside the finding only if, after considering and weighing 

all of the evidence in the record pertinent to that finding, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that the answer should be set aside and 

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) 

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 

395 S.W.2d 821, 823 (Tex. 1965).

B. Child Support

In her first issue, Mother argues that the trial court abused its discretion by 

acting without reference to any guiding rules or principles in determining the 

amount of child support. 

A trial court’s child support order will not be disturbed on appeal unless the 

complaining party can show a clear abuse of discretion. Worford v. Stamper, 

801 S.W.2d 108, 109 (Tex. 1990); In re K.R.A., No. 02-13-00154-CV, 2014 WL 

1691808, at *3 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op. on 

reh’g). We review the evidence in the light most favorable to the child support 

order and indulge every presumption in favor of the trial court’s ruling. In re 

V.L.K., No. 02-10-00315-CV, 2011 WL 3211245, at *2 (Tex. App.—Fort Worth 

July 28, 2011, no pet.) (mem. op.). 
9

Family code section 154.130 requires findings on monthly net resources 

when, as here, the trial court orders an amount of child support that varies from 

the statutory percentage guidelines. See Walker v. Walker, No. 02-13-00229-

CV, 2014 WL 2619147, at *4 (Tex. App.—Fort Worth June 12, 2014, pet. denied) 

(mem. op.) (citing Tex. Fam. Code Ann. § 154.130(a)(3)); see also In re A.M.P., 

368 S.W.3d 842, 846–47 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(“Though the trial court is not required to follow the guidelines, it must make 

certain fact findings if the amount of child support it orders varies from the 

amount computed by applying the percentage guidelines under Texas Family 

Code sections 154.125 or 154.129, as applicable.”).

Section 154.130(b) is very specific about the required findings. See Tex. 

Fam. Code Ann. § 154.130(b). It provides,

If findings are required by this section, the court shall state whether 

the application of the guidelines would be unjust or inappropriate 

and shall state the following in the child support order:

“(1) the net resources of the obligor per month are $__________;

“(2) the net resources of the obligee per month are $__________;

“(3) the percentage applied to the obligor’s net resources for child 

support is __________%; and

“(4) if applicable, the specific reasons that the amount of child 

support per month ordered by the court varies from the amount 

computed by applying the percentage guidelines under Section 

154.125 or 154.129, as applicable.”

Id.; see Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *6 (Tex. 

App.—Fort Worth Jan. 22, 2015, no pet.) (mem. op.) (“[I]f the child support 
10

amount varies from the amount computed by applying the percentage guidelines 

in the family code, the trial court must state specific reasons for ordering that 

amount of child support.”). 

In determining whether application of the guidelines would be unjust or 

inappropriate under the circumstances, section 154.123 provides that the court 

shall consider evidence of all relevant factors, including (as appropriate here) the 

children’s ages and needs; the parents’ abilities to contribute to the children’s 

support; any financial resources available to support the children; the amount of 

time of possession of and access to the children; the amount of the obligee’s net 

resources; child care expenses incurred by either party in order to maintain 

gainful employment; the amount of other deductions from wage or salary income; 

provision of health insurance and payment of uninsured medical expenses; 

special or extraordinary educational, health care, or other expenses of the 

children; the cost of travel to exercise possession of and access to the children; 

and “any other reason consistent with the best interest of the child[ren], taking 

into consideration the circumstances of the parents.” Tex. Fam. Code Ann.

§ 154.123 (West 2014).

The heart of Mother’s argument on appeal with regard to her first issue is 

that the trial court had no basis on which to determine—as it did in its section 

154.130(b) “specific reasons” finding—that the parties had previously agreed to 

12.04% of Father’s income for child support when there was no evidence of a 

percentage previously agreed to by the parties or an agreement between them 
11

as to how the amount of child support was computed. That is, she challenges 

the sufficiency of the evidence to support this finding, directing us to the 

language in the final decree, which she correctly points out “just states that child 

support is to be $600.00 and does not state how that amount was determined,” 

and her testimony that she did not know how child support had been calculated. 

When Father’s counsel asked Mother how the $600 child support amount 

had been calculated, Mother said that she thought it had been something like 

“comparing the two incomes and taking a difference or something of that nature.” 

Mother further stated that because Father had been making around $86,000 at 

the time of divorce, $600 per month would have been less than 10% of his 

income. The remaining evidence in the record on this issue came from Father, 

who responded, “Yes,” to his counsel’s question, “The $600, was that about 12% 

of your net income?” Neither party testified that they had agreed that child 

support would be calculated based on a percentage of Father’s income.

Mother also argues that Father’s 2011 net income was never entered into 

evidence, preventing the trial court from being able to “determine that $600.00 

was 12.[0]4 percent of his net income.” Father responds that, using the numbers 

provided by Mother in her brief, see Tex. R. App. P. 38.1(g),3 and applying the 

 

3

In her brief, Mother states that Father made $87,757 in 2011, and from 

this amount, she computes his monthly gross income as $7,313, which she 

states “yields net resources in the amount of $5,592.40” after applying the 2011

Attorney General’s tax chart. See “Office of the Attorney General 2011 Tax 

Charts,” available at https://texasattorneygeneral.gov/files/cs/2011taxchart.pdf 

(last visited June 6, 2016). 
12

$502.19 per month in children’s health insurance ordered in the decree (for which 

Mother failed to account) to his net monthly income, his net monthly resources in 

2011 were $5,090.21. He then concludes “[t]he percentage calculation is off by 

.25 percentage points from 12.04 percent.” That is, Father appears to 

acknowledge that the trial court made a math error in the 2015 judgment. 

Based on the above, we agree with Mother that the trial court did not have

legally and factually sufficient evidence upon which to determine that the parties 

had previously agreed to 12.04% of Father’s net monthly resources as child 

support. See Ford Motor Co., 444 S.W.3d at 620; Pool, 715 S.W.2d at 635; cf. 

Walker, 2014 WL 2619147, at *4 (holding that the evidence was sufficient to 

support the trial court’s finding that $1,000 per month was within the statutory 

child support guidelines and thereby did not require section 154.130 findings).4 

 

4We note that although Mother does not specifically raise complaints about 

the trial court’s other section 154.130(b) findings, we cannot determine from this 

record how the trial court calculated the other numbers that it used. Cf. In re 

T.N.H., No. 02-06-00074-CV, 2007 WL 495162, at *8 (Tex. App.—Fort Worth 

Feb. 15, 2007, no pet.) (mem. op.) (holding no preservation when parent did not 

object to trial court’s failure to make a finding on obligee’s net resources). The 

trial court found that Father’s present net monthly resources were $6,582.22, 

which is $420.22 higher than the $6,162 amount listed in Father’s pay receipts as 

his base pay per month (and the amount found by the associate judge in October 

2014). And instead of including Mother’s “net resources” pursuant to the 

statutory-findings requirement, it listed Mother’s “gross resources,” which would 

reflect a higher dollar amount. Cf. Tex. Fam. Code Ann. § 154.130(b). Further, 

while the statute requires that the findings state the percentage applied to the 

obligor’s net resources, in its findings, the trial court stated, “The percentage 

applied to the first $8,550 of [Father’s] net resources for child support is 12.04 

percent.” [Emphasis added.] 12.04% of $8,550 is $1,029.42, not the monthly 

amount actually ordered by the trial court—$792.50—thus this finding appears to 

be contrary to both applicable family law and the laws of mathematics. Compare
13

Because the trial court ruled without supporting evidence for this finding, it 

abused its discretion. See Garcia, 363 S.W.3d at 578. Therefore, we sustain 

Mother’s first issue.

C. Possession

In her second and third issues, Mother argues that the trial court abused its 

discretion by finding insufficient evidence to show a material and substantial 

change in circumstances had occurred with regard to the issue of access to and 

possession of the children and by finding insufficient evidence to show that the 

requested modification of access to and possession of the children was in the 

children’s best interest. See Tex. Fam. Code Ann. § 156.101(a). 

1. Applicable Law

We review the trial court’s decisions on custody, control, possession, and 

visitation matters for an abuse of discretion. Newell, 349 S.W.3d at 720; M.M.M.,

307 S.W.3d at 849; see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); 

W.M., 172 S.W.3d at 724. The trial court may modify possession if the 

modification would be in the child’s best interest and the circumstances of the 

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

substantially changed since the date of the order’s rendition. See Tex. Fam. 

Code Ann. § 156.101(a)(1)(A). 

 

id. § 154.130, with id. § 154.125 (“Application of Guidelines to Net Resources”), 

and id. § 154.126 (“Application of Guidelines to Additional Net Resources”) (West 

2014).
14

The best interest of the child shall always be the primary consideration of 

the court in determining the issues of possession of and access to the child. 

Newell, 349 S.W.3d at 721 (citing Tex. Fam. Code Ann. § 153.002 (West 2008)). 

There is a rebuttable presumption that the standard possession order provides 

reasonable minimum possession for a parent named as a joint managing 

conservator and is in the child’s best interest. Id. (citing Tex. Fam. Code Ann. 

§ 153.252 (West 2008)). If special circumstances make the standard possession 

order unworkable or inappropriate, however, the trial court shall render an order 

that grants periods of possession of the child as similar as possible to those 

provided by the standard possession order. Id. (citing Tex. Fam. Code Ann. 

§ 153.253 (West 2008)). In deviating from the standard possession order, the 

trial court may consider the age, developmental status, circumstances, needs, 

and best interest of the child, the circumstances of the managing conservators, 

and any other relevant factor. Id. (citing Tex. Fam. Code Ann. § 153.256 (West 

2008)).

2. Evidence

Two years before the trial, Mother moved from an apartment in Frisco to a 

house in Prosper.5 Mother married J.S. in April 2014.6 At the time of the trial, in 

 

5Mother said that she bought the house in Prosper because she could not 

afford a house in Frisco. 

6While material changes may include marriage by one of the parties or a 

change in the home surroundings, see Arredondo v. Betancourt, 383 S.W.3d 

730, 734–35 (Tex. App.—Houston [14th Dist.] 2012, no pet.), even if a party 
15

2015, Mother no longer worked weekends and instead worked Monday through 

Friday because N.R. had finished with the special education school and was now

in regular elementary school. K.R. was in middle school. Both children still 

attended school in the Frisco ISD but lived with Mother in Prosper. 

Mother said that she and the children left the house in Prosper at 7:15 a.m.

With traffic, they arrived at the school in Frisco by 7:45 a.m., and then she went 

to work. Depending on Mother’s work schedule, she or her mother would pick up 

the children after school. The children’s schools released at different times, 

necessitating more than one trip.7

Once they were home with Mother, both children had homework. After 

homework, they had dinner, then “by 7:30, it’s take a bath and it’s time to go to 

bed.” Mother said that she and the children only had “maybe 30 minutes” to just 

sit and talk. Mother said that she would love to have time on weekends to plan 

some outings and have some fun with the children. 

Mother testified that a standard possession order would give her some 

weekends with the children, which would allow her to spend some “laid-back” 

 

shows that these are material and substantial changes, she must still show that 

modifying possession would be in the children’s best interest. See Tex. Fam. 

Code Ann. § 156.101(a).

7Mother noted that if the children could attend school in Prosper, they 

would not have an hour or so in the car each day. In the 2011 decree, Mother 

was awarded the exclusive right to designate the children’s primary residence 

“within 20 miles of” the children’s Frisco ISD elementary school. At the 

conclusion of the trial, the trial judge counseled Mother to change the children’s 

school to Prosper since she had the right to designate their primary residence. 
16

quality time with them. She further testified that a standard possession order 

would allow Father to have some designated time in the summer and the 

holidays would already be decided by the court, so they would not have to come 

to any agreements. Mother pointed out that in addition to giving her some 

weekends with the children, the standard possession order would give Father 

thirty days with the children in the summer, every other Thanksgiving, part of 

every Christmas, and every other spring break, which he did not have under the 

current arrangement and which would be in the children’s best interest.8

During cross-examination, Mother acknowledged that she had the children 

four days a week, including over Thanksgiving, Christmas, and during the 

summer, and that they had dinner together at night. She also agreed that 

stability was important for N.R. because of his autism. And she agreed that she 

could attend the children’s activities on the weekend and said that she usually 

did. 

Father’s base schedule at work was 7:30–4:00, Monday through Friday, 

and he was “on call” twelve days a month.9 Father explained that being “on call” 

meant only that he would have to work for “usually very short periods of time” on 

the weekends. If he was on call on a weeknight, it just meant that he stayed late. 

 

8Father said that before the suit was filed, it had always been “pretty easy” 

for him and Mother to agree to a visitation schedule for holidays and summer. 

9Mother said that she did not get the children when Father worked on 

weekends. 
17

Father was on a schedule of being on call two weekends one month and then 

one weekend the next. He was paid for a three-hour minimum when called in on 

the weekend and tried to get out under the minimum. Father’s commute was 29 

miles each way, and he said that if he had standard possession, he did not know 

how he could “make that work” with having the children every Thursday evening. 

Father’s time records showed that through 2014, there were fifteen 

weekends when he was on call and was actually called in, and from January 

2015 to the first part of March, there were three occasions when he was on call 

and actually called in. Father’s time records were admitted into evidence and 

showed the following: 

 On Saturday, February 1, 2014, he worked approximately an hour and a 

half, from 6:10 p.m. to 7:39 p.m. 

 On Saturday February 8, 2014, he worked approximately three hours, from 

1:01 p.m. to 4:18 p.m. 

 On Saturday, March 1, 2014, he worked approximately six hours, from 

4:30 p.m. to 10:53 p.m. 

 On Sunday, March 2, 2014, he worked approximately two hours, from 

12:07 p.m. to 2:04 p.m. 

 On Saturday, April 19, 2014, he worked approximately three hours, from 

5:47 p.m. to 9:04 p.m. 

 On Friday, May 23, 2014, he worked approximately eight and a half hours, 

from 2:07 a.m. to 7:56 a.m. and then from 4:30 p.m. to 7:47 p.m. 

 On Saturday, May 24, 2014, he worked approximately three and a half

hours, from 10:09 a.m. to 11:52 a.m. and again from 12:06 p.m. to 1:43 

p.m. 
18

 On Sunday, June 8, 2014, he worked approximately three and a half

hours, from 8:42 a.m. to 12:13 p.m. 

 On Friday, July 18, 2014, he worked approximately five hours, from 4:30 

p.m. to 9:38 p.m. 

 On Sunday, July 20, 2014, he worked approximately four hours, from 3:58 

p.m. to 8:08 p.m. 

 On Friday, August 15, 2014, he worked approximately four hours, from 

4:00 p.m. to 7:54 p.m. 

 On Saturday, August 16, 2014, he worked approximately five hours, from 

1:37 p.m. to 6:27 p.m. 

 On Saturday, August 30, 2014, he worked approximately two hours, from 

12:42 p.m. to 2:20 p.m. 

 On Sunday, August 31, 2014, he worked approximately two hours, from 

11:27 p.m. to 1:49 a.m. 

 On Saturday, September 13, 2014, he worked approximately two and a 

half hours, from 7:56 a.m. to 10:31 a.m. 

 On Saturday, October 18, 2014, he worked approximately eight hours, 

from 3:22 p.m. to 11:38 p.m. 

 On Friday, November 7, 2014, he worked approximately half an hour, from 

7:55 p.m. to 8:22 p.m. 

 On Saturday, January 3, 2015, he worked approximately an hour and a 

half, from 10:48 a.m. to 12:09 p.m. 

 On Saturday, February 7, 2015, he worked approximately two hours, from 

4:22 p.m. to 6:32 p.m. 

 On Saturday, February 21, 2015, he worked approximately three and a 

half hours, from 12:47 p.m. to 4:08 p.m.10

 

10The records further showed that on Friday, March 27, 2015, Father 

worked from 7:58 p.m. to 9:34 p.m.; on Saturday, March 28, 2015, he worked 
19

Father said that according to the 2011 possession schedule, he had 

possession of the children from 6 p.m. on Friday until 6 a.m. on Monday. His 

adult stepdaughter—Mother’s daughter—lived in Father’s house with her 

husband and baby, and she took the children to school on Mondays. Father said 

that when he got the children on Fridays, they would usually go get something to 

eat and then watch TV or go see a movie; he cooked on Saturday and Sunday 

nights. Father said that sometimes the children liked to stay home with their 

sister and the baby. 

On Saturday mornings, N.R. participated in his Allstars program11 at 10 

a.m. so they would get up and have breakfast while K.R. slept, and then Father 

would drop N.R. off at Allstars, and he and K.R. would go to the gym or do a few 

things around the house before picking N.R. up at noon. Father stated, 

We usually find time to -- we go do something together. We’ll 

go to the park or we’ll -- we might go to a movie or we might -- [K.R.] 

likes to spend the night at his friend’s house or we have a friend 

spend the night. [N.R.] always likes it when [K.R.’s] friends come 

spend the night.

Sunday -- Sunday if I -- the weekends I’m on call, we don’t go 

to church, we go to church the other weekend. We come back and, 

you know, make -- do a little -- [N.R.] and I will -- might do some 

 

from 7:26 p.m. to 8:38 p.m.; and on Sunday, April 19, 2015, he worked from 8:17 

a.m. to 12:24 p.m. and from 6:44 p.m. to 9:23 p.m. 

11Father explained that the Allstars program was a leadership program for 

autism spectrum children and that N.R. had been attending it since 2012 and 

went nearly every Saturday. 
20

reading or do a little writing. We watch some TV, go to the park. I 

mean, you know, we just -- we have a lot of fun, you know.

Father added that K.R. had homework every weekend that he had to do at 

Father’s house. Father said that most of the time he spent with the children was 

quality time but “not necessarily fun.” Father said that he had had to drive a lot 

when K.R. had two jazz band programs on the same Saturday and N.R. had his 

autism program. 

3. Analysis

Based on this record, which provides some evidence to support the 

conclusion that leaving the existing structure in place would be in N.R. and K.R.’s 

best interest, particularly in light of N.R.’s autism and Father’s stated inability to 

make possession work on Thursdays based on his work schedule, and because 

we cannot conclude that a trial court abused its discretion merely because we

would have ruled differently in the same circumstances, see E.I. du Pont de 

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995), we hold that the 

trial court did not abuse its discretion by refusing to change the nonstandard 

possession schedule to standard possession. We overrule Mother’s third issue, 

on the best interest ground of section 156.101(a), and do not reach her second 

issue on material and substantial change. See Tex. R. App. P. 47.4.

IV. Conclusion

Having sustained Mother’s first issue, we reverse the portion of the trial 

court’s judgment pertaining to child support and remand the case for a new trial
21

on that issue. Having overruled Mother’s third issue and having thereby not 

reached Mother’s second issue, we are constrained by the applicable standard of 

review to affirm the remainder of the trial court’s judgment.

12

/s/ Bonnie Sudderth

BONNIE SUDDERTH

JUSTICE 

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

LIVINGSTON, C.J.; and GABRIEL, J., concur without opinion.

DELIVERED: June 9, 2016

 

12Mother asked for standard possession in her petition and argued to the 

trial court that this would enable her to share some unstructured “fun” time with 

the children, such as the extracurricular activities described by Father as 

enjoyable to the children—sleepovers, movies, trips to the park, and going to 

church on Sundays—which would be impossible during Mother’s periods of 

possession during the school year. As discussed above, the trial court did not 

abuse its discretion in denying Mother’s request for standard possession. While 

Mother did not suggest any other alternatives to the trial court, we note that 

nothing prevented the trial court, in the interest of equity, from allowing Mother at 

least some weekends of possession during the school year, especially during 

those weekends when Father was on call and might otherwise be unavailable.