### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00179
- CV

Molly Spence , Appellant

v. Matthew Davis , Appellee

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- FM -17-007624, THE HONORABLE JESSICA MANGRUM , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N Molly S pence contends that the trial court abused its discretion in mod ifying the Agreed Order in Suit to Modify the Par ent -Chil d Relationshi p. She challenges multiple findings
of fact and conclusions of la w. We will modify the order in part and affirm it as modified.

BACKGROUND Spence gave birth in March 2016 in California to a child father ed by Matthew
Davis . The parents never married each other

. In 2017, they entered and amended a C alifornia
S tipulated Parentage Agreem ent

. Spence a nd the child, followed by Da vis , moved to Austin. I n April 2018 , Davis filed a petition to modify the Agreement ’ s custody provisions. In April 2019,
the child ’ s guardian ad litem Dr. Kel le y Baker recommended that Davis be appointed

conservat or with the ex clus ive rig ht to designate the child ’ s primary residence and to make psychological and p sychiatric decisions.2 In July 2019 , t he parties signed a Mediated Settleme n t Agreement (MSA ) that

was enforceable immediately as a c ontract. The MSA f orm ed the bas is for the tr ial court ’ s Agreed Order in Suit to Mo dify the Parent

- C h ild Relationship , signed October 18, 2019. T he
order name d Spence and Davis joint managing conservator s with the c hild to live in Travis County and neither parent empowered to designate the child ’ s p rimary residence. It establishe d

st andard possession for Davis beginning Augu st 2019 expanding to an even split beginning in January 2021 with pickup and dropoff at school or, if school wa s out, at the South Congr ess Hotel

. T he ord er require d that signif icant others not be pres ent at exch a n ges of the child at the
hotel and prohibit ed the parents from contacting the other ’ s significant o ther

. The order allow ed the parents to de sig nate a competent adult to pick up and return the c hil d. The parents share d
medical decision

- mak ing w ith the assistanc e of a parenting facilitator with the service provider

to resolve remaining impasses

. T he order require d th e parents to participate in individual
th erapy
. T he order require d the parents to communicate through Our Family Wizard (OFW) and

to post all significant information about th e child ’ s health, ed ucation, and welfare on the site

. Davis filed a ne w petition to mod ify the parent

- child relatio nship on June 19,
2020 , alleging that the c hil d ’ s circumstances ha d mate rially and substanti ally changed. In his
live petition, h e asked that the parties remain joint managing conservators with him having the exclusive right to designate the primary residen ce of the child in Travis and conti guous cou nti es until Spenc e moves outside of t hose geographic restrictions

. H e al so request ed to have all of the rights under Family Code section 153. 132 af ter meaningful consultation with Spence and to have
the exclusiv e right to sche dule the child ’ s medical and the rapeutic appoi ntments.3 APP LICABLE LAW
A trial court can modify the te rms of a c onservatorship order if (1) the child ’ s or parties ’ circumstances have materia lly and substantially changed since the or der was rendered and (2) doing so would be in the c hi ld ’ s best interes t

. Tex. F am. Cod e § 156.101(a)(1). The party s eeking modificati on has the burden to establish these elements by a preponderance of the
evidence. Zeifman v. Michels , 212 S.W.3d 582, 58 9 (Tex. App.

— Austin 2006, pet. denied)

. T he movant mus t show what co nditions exi sted at the time of the entry of the prior order , then show what material and substantial changes occurred

. Considine v. Considine , 726 S.W.2d 253, 255 (Tex. App.

— Austin 1987, no writ)

. T he trial court is not confined to rigi d

r ul es or defini te guidelines when d eciding whether circumstances have material ly and substantially changed

. Zeifman , 21 2 S.W. 3d at 589

. T he determination is fact

- and case spe cific

. Id. at 593

. T o determine the child ’ s best interest , a court may use th e no nexhaustiv e list of
fact ors d iscusse d in Holley v. Adams , 544 S.W.2d 367 (Tex. 1976). T hose factors include the desires of the child, the emotional and physical needs of the child now and in the future, the
emotional and physical danger to the chil d n ow a nd in the f uture, the par ental abilit ies of the individuals seeking custody, the program s available to assist these individuals to prom ote the
best inte rest of t he child, the plans for the child, the stability of the home, the acts or omissions of

t he pare nt that m ay indicate th at th e exist ing parent

- child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id

. at 371

- 72. I n the context of custody modification, other factors inc lude the child ’ s need for stabili ty and the need to prevent cons tant litigat ion in child

- custody cases. In re V.L.K. , 24 S.W.3 d 338, 34 3 (Tex. 2000).4 We review the modificatio n for a c lear abuse of discretion

. Zeifman , 212 S.W.3d
at 587

. A tr ial cou rt abuses its discretion when it act s i n an un reason able or arbitrary m anner or without referenc e to any guiding principle. In re Marriage of Jeffries , 144 S.W. 3d 636, 638 (Tex. App.

— Texarkana 2004, no pet.) (citing Downer v

. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985) ). W e cons ider whet her the trial court had sufficient
evidence on wh ich to exerci se i ts discre tion and, if so, whether it erred in exercis ing tha t discretion. In re W.C.B. , 337 S.W.3d 510, 513 (Tex. App.

— Dall as 2011, no pet.). A trial court
does not abuse its disc retion if some substantive and proba tive evidence suppor t s its decision.
Coburn v. Moreland , 433 S.W.3d 809, 823 (Tex. App.

— Austin 2014 , no pet. )

. S uff iciency of the ev idence is not an independent ground of error but is a factor in determining w het her the trial court abused its d iscretion. Zeifman , 212 S.W.3d at 587

. In

a ssessing legal sufficien cy , we consider the evidence in the light most favorable to the court ’ s order and indulge every re asonable inference that supports it. See Ci ty of Kell er v. Wi ls on , 168 S.W.3d 802, 822 (Tex. 2005); In re S .E.K. , 294 S.W.3d 926, 930 (Tex. App.

— Dallas 2009, pet. denied). To assess factual sufficiency , we consider all evidence and determine whether the evidence supporting th e order is so weak or so against th e overw helming weight of the evidence
that the order is clear ly wrong and manifestly unjust. See City of Keller , 168 S.W.3d at 822.
F actually

- sufficient evidence is necessarily legal ly

- sufficie n t evidence. S. B. v. Texas Dep ’ t of
Fam. & Protective Ser vs. , 654 S .W.3d 246, 252 (Tex. App.

— Austin 202 2 , pet. filed )

. W e d efer to the t rial court ’ s resolution of factual d isputes and related credibility
dete rminations ; we ma y not substitut e our judgment for the trial court ’ s judgment in those

matters

. Ge orge v . J eppe son , 238 S.W.3d 463, 468 (Tex. App.

— Hou ston [1st Di st.] 200 7, no pet.). The factfinder can resolve inconsistencies in the testimony of any witness, draw inferences5 from the evidence presented, and choose between conflicting inferences. Lopez v. Cr isa nto , 58 3 S.W.3d 926, 930 (Tex. App.

— E l Paso 2019 , no pet. )

. An appellate court will not overturn a
factfinder ’ s inference unless the evidence supports only the opposite inference

. Id. W e presume that the fact finder resolved evidentiary conflicts in f avo r of th e order if a reasonable pers on could
do so. See City of Keller , 168 S.W.3d at 821. T he trial judge can observe and assess witnesse s ’
demeanor and credibili ty and can sense influences that may not be apparent from readin g th e record

. In re A.L. E. , 279 S. W.3d 4 24, 427 (Tex. App.

— Houston [14 th Dist.] 2009, no p et .).
A trial court ’ s designation of items as findings of f act or conclusions of law is not controlling on appeal, and we consid er the substance of the court ’ s ruling even if it is incorre ctl y labe lle d

. Ray v. Farm ers ’ State Bank , 576 S.W.2d 607, 608 n. 1 (Tex. 1979) ; Seash a Pools, Inc.
v. Hardi ster , 391 S.W.3d 635, 640 (Tex. App.

— Austin 2012 , no pet. )

DISCUSSION Spence ’ s sole issue on appeal is “ [w] hether the trial cou r t abused its disc r et ion in

mo difying the part i es ’ MSA. ” 1 I n sup po rt of that issue, s he makes several arguments and challeng es many findings of fact and conclusions of law. She contends that the trial court abused
its disc retion by modifying the MSA because the issues and ci rc um stanc es on w hich Davis based his req uest to modify predated or were antici pa ted in the MSA that support ed the 2019 O rder. She also argues that Davis failed to show chang ed circumstances because he d id not ad duce

1 T he mediated settlemen t a greemen t ( MSA ) and the 2019 Order are some times referred to inte rchang eably by the p artie s
. T he MSA is a n agreement between the part ies and signed by the parties on July 2, 2019, that states that its provisions “ shall be effective immediately as a cont rac t

. ” Cf. Tex. Fam. Code § 153.0071(d) ( when MSA bind s pa rt ies). Whil e t he 2019 Orde r exp ressly in corporates agreemen ts reached by the parties in mediation on July 2, 2019, it is an order signed by a judge and subject to modification by a court

. See i d

. § 156.001.6 evidence of the baselin e circumstanc es ex isting at the time of the 2019 O rder. S he further argues
that the evidence wa s legally and factu ally insufficient a nd was not based on personal knowledge
and therefore was too speculative, conclusory, and irreleva nt to support a modification

. We wi ll asses s th ese argume nts a s they apply to the trial court ’ s conclusions on
the elem en ts required to sup port m odification of an order establishing cons ervatorship or possession and access , namely: Conclusion 5 th at there has been a material and substantial
ch ang e in c irc ums ta n ces si nce the parties sign ed the MSA in July 2019 and Co nc lusion 6 th at modification of the 2019 O rder is in the child ’ s best interest. See Tex. Fam. Code § 156 .101(a).

I. C r edibility Spence contends that there is legally or factuall y i ns ufficie nt evidence to suppor t Finding 10 t hat “ at times, MOLLY SPENCE was not a credible witn ess for several reason s incl uding, but not limited to ” Spence ’ s history of fostering relationships by telling “ significant
fa lsehoods about herself ; ” giving “ fal se inform ation to others , especially rom anti c partners, about her personal history ; ” and ex aggerating or inventing a Br itish accent. Spence challenges
th at finding a nd contends that , through therapy, she has changed her ways.
But t he trial court as fac tfi n d er is t he sole arbiter when assessing the credibili ty and demeanor of witnesses , and w e can no t substit ut e our judgment for the factfinder ’s

ass essment of witness cre dibility

. In re J.L. , 163 S.W.3d 79, 86

– 87 (Tex. 2005) ; Protect Env tl

. Ser vs., Inc. v. No rco C orp
. , 403 S.W.3d 532, 539

- 40 (T ex. Ap p.

— El Paso 2013 , pet. denied ) ; In re P.A.C. 498 S.W.3d 210, 214 , (Tex. App.

— Houston [1 4th Dist.] 20 1 6, pet. denied ). Spence ’ s assertion t h at the trial co urt did n ot rule in the courtroom that she was not credible does

not negate F i ndi ng 10

. S pence does not cite and w e have not found authority hol ding that the7 abse nce of a credibility finding in open court bars a post

- hearing finding that her testimony
lacked credibility

. Spence ’ s assertio n that Davis knew of her lies and embelli s hm ents whe n he

s igned the MSA and therefore that her subsequent lies are not a material and substantial cha nge in circumstanc es does not affect the trial court ’ s finding about her cre dibility as a witness

. We may not substitute our assessment of t he t ria l c ourt ’ s c redibilit y determina tion in Finding 10

.

II. Materi al or substantial change in circumstan ces In Conclusion 5, t he trial court s tated that a material and substant ial change in
circumstances occurred after t he parties signed the MSA in July 2019.
A. E vid e nce of conditio ns in 2019 and changing circumstances Contrary to Sp ence ’ s asser tion on appeal, we find fac tually sufficient evidence of
the child ’ s status at the ti m e o f the MSA and 20 19 O rder. Dr. Meliss a Bunner ’ s June 2021 report on her neur o psychol ogi cal exam ination of the child provided background info rmation

. B aker , the child ’ s guardi an a d litem in 2018

- 19 , testified regarding the child ’ s circum stances in 2019. Mary Ann Howell , the child ’ s teach er in 202 0

- 21 , testified about the child ’ s p rogress du ring tha t
year , provi ding a basis for inferences regarding the ch ild ’ s condition in 201 9 . Marisa Crouse
testifi ed about the child ’ s progress in occupation al therapy beginning in March 2019 as well as
some of her interaction s wi th the parents.
T h ere a re no di spute d findings regarding Bunner ’ s report

. I t provides evidenc e about the chil d ’ s history and his changing needs. Bunner wrote that he began school at two

- and

a - ha lf years old at a play

- ba sed outdoor school but was asked to leave when he wa s thre e - a nd

- a half years old because he was disruptive ; he was t hree and a h alf in Septe mber 201 9 af ter the8 MS A was signed. He moved to the schoo l where Howell taught, then started public

- school kindergar ten after Bunner examined him.
Bunner made s everal r eco mme n dations gea red toward easing the child ’ s transition to k indergarte n. She said he would ne ed co ntinued occupational therapy , speech
ther apy, and s o cial skills t raining

. She noted th at he had coordination issues despite his t h e rap ies

t hat would mak e sc hoo l “ q uite dif ficul t ” and th at his visuospatial issues could be probl ematic as
the school dem ands increased in their comple xity. H is vocabulary and narrative memory w ere
sup erior , but he per form e d inconsistently on test s and had difficulty with task p ers ist ence. She

s aid tha t his difficulties with social commun ica tion seemed to be easing with therapy but bore

m onitoring as the demands on him i ncrease d

. She recommended increased oc cupational th erapy work ing o n pre - writing skills and recommended devel o pi n g a plan for oc cupation al therapy in
school i f he did not sho w a lot of improvement o ver the summer. Sh e suggested that school might be frustrating the next year , particularly if the school ha d high academic expectations. She
said that b ecause he was ente rin g kindergar ten, it would b e increasingly imp ortant for tea chers and parents to hav e consistent m essaging and plans and that w henever possible the parents
should atte nd meetings together a nd s hare emails and notes. Though Baker ’ s 2019 report on th e chi ld was not adm itted i nto evidence, 2 s he
testified at the 2021 hearing that S pe nce and Davis were havin g difficulty coparenti ng at t he time

2 Dr. Kell ey Baker made a r eport i n 2019 b efo re the MSA

. T h ough that rep ort w as in th e clerk ’ s record attached to pre h earing motions, it was not offer ed or admitted at the hearing. Accord ingly, we cannot consider it in our re vie w of the cou r t ’ s 2022 Order

. See Celadon Trucking S e rvs., Inc. v

. T ita n Textile Co. , 130 S.W.3d 30 1 , 30 7 (Tex. App.

— Houston [14th Dist.] 2004, pet. denied) ; No ble Expl

. , Inc. v. Nixon Drilling, Co. , 794 S.W.2d 589, 592 (Tex. App.

— Austin 199 0, no writ)

. Nevertheless, her testimo ny address ing s ome of her ob s e rv ations provides a baseline against whi ch to asse ss subsequ ent change s in cir cumst ances.9 of the MSA

. S he recommended and the court o rdered that the parents use a parenting facili tator to help bridge t h eir com munication issues

. Baker t estified that her primary conce rn was that
S pence would continue to dist ort Davis ’ s parenting abilit ies and his relationship wi th the child , presenting false facts to professionals and the child. Baker testified at the 2 0 2 1 h ear ing that sh e had thought in 2019 that it was very importan t th at Spence engage in fairly significant individual therapy to explore why she formed relationships with people based on lies about herself and why
she lied a bou t Davis

. Baker testified t h at t he th erapy was essential to change her relationships
and re c omm ended equ al possession of the child with the expectation that Spence would improve. Baker testified that Spence would need to improve to be a healthy parent and make t h e evenly split poss e s sio n w o rk

. Baker s aid she did not have specific concerns about Spence contact ing the
p olice ab out violations of court orde r s. Finding 11(c) states that Baker ’ s “ primary concern at the time of signing the mediated settlement agreement in July 2019 was MO L LY SP ENCE ’ s contin ued distortion of
facts and false realities to others in her life and in the child ’ s life ; ” this includ e d presenting fals e facts about herself and her background to the chi ld, romantic partners , and Davis. Baker said
that her concerns a b ou t S pence ’ s disto rtions abou t Davis centered on presenting false facts to professional s or the child himself. She described as very importan t Spence ’ s need to engage in fairly si gnificant therapy to assess why she was telling others sig nificant in her l i fe fa lse
informati on about where she was born or lived. Fin ding 11 (c) is supported by factu ally
sufficient eviden ce
. 3

3 Spence also challenges Fin d ings of Fact 11(a) , (b), (d) , and 12.10 Crouse provided occup ation al therapy to the child begi nning in Mar ch 201 9 working on fine , visual, and gross motor cont ro l and ad a ptive r esp onses to sensor y input. She

tes t ified that he has made progress and recommended a redu ction in the f requency of his sessions

Finding 11(a) state s that Baker recommended increased po ssession for Davis “ with the understan d i ng that MOLLY SPE N CE would imp rove and be a he althy parent to the child. ” Spence asserts that insufficient evidence supports a finding that Baker “ only recommended 50/50 possession bas ed on the goal that Molly wo uld improve with therapy

. ” ( Emphasis add e d

. ) No finding of fact states t he p ropos ition that Spence d isputes , and factually sufficient evidence supports F inding 1 1(a). Finding 11(b) states that Baker sign ed the MSA which “ si gnificantly formed the basis o f ” the 2019 Order

. Spence is corre c t that t he clerk ’ s recor d shows that Baker sig ned the 2019 Order based on the MSA , no t the MSA i tself

. Which document Baker signed does not affe ct our re view of whether the trial court abused its d iscretion by modi fying th e 20 19 Order. Finding 11( d) sta tes tha t “ Baker was of th e opinion at the time of the first modification that individual therapy for MOLLY SPENCE was an essential part of Dr. Baker ’ s recommendations and was expected in order for the equa l possession sch edu le t o work and for MOLLY SPENCE to bec o m e a healthy paren t to the child. ” Baker testi fied that she recommended 50 / 50 possession and expect ed that Spence would get better , that Spence “ would nee d to get better in order for such a sc hedu le to be workable , ” and that Spence “ would need to g et bett e r in order to be a healthy par ent ” to the chi l d. F actually sufficient evidence sup ports the f inding regarding Bak er ’ s opini on. Fi nding 12 states that
The Court heard evidence an d found that MOLLY SPENCE e ngage d a th erapist that was not on the re commen d e d list from the p sychological evaluation, did not start therapy for six months following Dr. Baker ’ s recommendation, an d her chosen therapist reportedly did not believe MOLLY SPENC E required the therapy recommend ed by the psychological evaluator. Spenc e contends that no evidence supports a finding that Spence ’ s therapist cl eared her of continued therapy or that Spe nce aban doned her t herapy

. T he court did not make such finding s
. Factually sufficient evidence su ppo rts Finding 12.11 from twice a week to once a week

. Spence challenges several findings about Crouse ’ s
tes timony

. Spence challenges Finding 1 4 (h ) th at “ the child w ou ld be more likel y to run away from the compu ter and hide or cry ” d u ring virtual therapy appointments while t he child was at Spence ’ s house

. Spence contends that it is not unusual for a 4

- year - old to have challenges during a virtual th e rap y appointment , that Crouse did no t testif y that challeng es did not occur at
Dav is ’ s hous e, and that this diff erence is a differenc e i n parenting that is not sufficient support for modifying the parti e s ’ MSA. Spence ’ s assert ion about what is usua l for a 4

- year - old or tha t any difference was due to a parenting styl e is not part of the chal le nged finding , nor did the court
find that the child h ad no problems at Davis ’ s house. Find in g 14(h) is consistent with Crouse ’ s
t estimony th at the child wa s more lik e ly to run away at Spence ’ s home

. This finding is similar to Finding 14(f) that the child was more dysregulated , soug h t out sensory inpu t more , and h ad more
difficult y controlling his body and where it was in space when Spence brought him to appointments. It is also consis tent with Finding 14(g) that he needed more redirection, had more
difficult y focusing, and made less progress when brought by Spence than when brought by Davis. Spence c hallenges Finding 14( i ) that Spence reported the child having diff i c u lty
with grooming tasks more tha n Davis did; this finding acc urately describes Crouse ’ s testimony

. Spence contends tha t this testimony was not tied to a spe cific date, but it immediat ely foll ow ed a question about the parents ’ annual reports of the child ’ s pr o gress , which f irst occurred in March
2020. Crouse no ted discrepancies betwee n the paren ts ’ assessments of the c hild ’ s behavior

. Davis reported that the ch ild could brush his teeth in dependently, while Spence reported sensory
difficul ties, meaning th a t h e would not put t he bru sh in his mouth. Crouse desc ribed Davis ’ s12 observations of the chi ld ’ s progress as more accurate or consistent with her observations than

was S pence ’ s reporting

. Even if it did not show a change in circumstances, t his findi ng of a d iscrepancy betw een the child ’ s perfor mance of skills with each parent an d/or the parent ’ s

re porting of those skills is relevant to the best

- i nterest conclusion discussed below

. T h is finding
i s consistent with Crou se ’ s tes timony and Findin g 14 (j) that D avi s ’ s observation s of the child ’ s skills were more con sis tent with Crouse ’ s observations

. Spence c hallenges Finding 1 4 (e) that Crouse observed that Davis is more like ly to
communicate about the child ’ s progress than Spence on gr ounds that it conflicts wi t h testimony
that b oth parents turn in an nual progress notes. The fac t that S pence communic ates with Crouse does not disprove that Crouse t estified that Davis was m ore likely to communicate with her. Indeed, t he finding is suffi ciently supported by Cro us e ’ s response to the question “ how do you
know that Dad is doing more o f the home carryover [ of strategies, skills, and techniques practiced during the therapy session s ] in his house ? ” Crous e re sponded , “ There ’ s more parent report and also e

- ma ils regardin g [ the child ’ s ] pro gress sent to me. ” The finding is f urther supported by Crouse ’ s testimony that Davis, but not Spence, reached out to her following
Bunner ’ s examination

. Spence chall enges Finding 14(n) that “ [t] he most importan t component to seeing pro g re s s with occupati onal therapy is home carryover of stra tegies, skills, and

te chniques practice d during the rapy ses sions, which the Court found could be best me t i n MATTHEW DAVIS ’ s home. ” Spence dismisses this finding as mere sur mise and based on
Davis ’ s be ing a better com municator , but the finding is sufficient ly supported by Crouse ’ s
te st imony based on her obs ervations of the child ’ s performance in therapy sessions a nd impressio ns developed while treatin g the child

.13 Mary Ann Howell, the child ’ s p re - kind e rg arten teache r, t estified r egarding the
child ’ s progress from September 2020 through August 2021. While she did n ot testif y regarding
his skills and nature in 2019, her testimony pr ovid ed information reg arding the chil d ’ s changing
circumstances over the 20 2 0

- 21 period and some indi cations from which the court c ould inf er changes from 2019. Howell testified tha t the child gen erally had chall enges with interacting
with other children. He had a tendency t o physi cally contact other children when he wanted t o interact with th em rather than asking; he did not seem t o understand it was inapp ropriate.
Howell testifie d that the child was more engaged overall by the end of the year but that t here was
still a noti ceable difference in his b ehavior depending on whi c h parent brought h im to scho ol. The divergence in the chi l d ’ s behavior depending on which parent brought him in
grew over the course of his year with Howell. She testified that the child was “ truly a different personality ” depending on which par ent broug h t him to school , s upporting Finding 1 3 (e)

. Howell testifi ed that t he school preferred that ch ildre n not brin g an item fr o m hom e but made an exception for this child

. If Spence brought him , he carried an object like a stuffed animal and
would be reluctan t t o put it away ; h e would go through a dialogue about the a ni mal w ith whoever greeted hi m at the door , which s upports Finding 13(f)

. By the end of the year, the child did not bring an o bj ect f rom home when Davis or his fiancée , M argaret Paulson , brought h im

. On the playgr ound, he would sta nd by himself when Spe n ce brought him but would move around the playground w hen Davis brough t him

. T he child was more conc e rned that he be ready

to l eave when Spence was picking him up

. How ell testified that the chi ld ne eded t ime to war m up and re

- eng age with the class a fter v acation ing with Spence , but there was no re

- ent ry ph ase after a vacation w i th Davis.14 Spence also challenge s t he court ’ s Finding 13 (h) that “ Howell observed that
MOLLY SPENCE was no t as involved wi t h the child ’ s pre - kindergarten as MATTHEW
DAVIS. ” Whe n a sked how involved Spence was , Howe ll responded , “ No t as involved because
f reque ntly I get with the father o ver the fen ce. ” Howel l expla in ed that while COVID restrictions
preve nt ed parents from en te r ing the classroom, she interacted with parents over a pla ygro und
fence and “ I did meet hi s father more tha n his mother, and that wa s just because I ’ m sure of her
work schedule. ” Spence also challenges Finding 13(i) that Howell believed that having join t

c onferences with th e parents was not productive due to Spe nce ’ s b eing upset and insisting that
the conf erence end , caus ing Howell to f or go joint conferences . Spence expla ins why she was upset, but Finding 13(i) is a finding of what “ Howell believed , ” no t w hether How ell ’ s be lief was justified. F actually suff icien t evidence supported Finding s 13(h) and 13(i).
B. P olice calls Spence challenges findings of fact regarding her calls and threats to call law
enforcement , all of which occurred after the 2019 Or d er:

• Finding 14(l ) : Spe nce “ called police to the c hild ’ s occ upation al therapist ’ s office. This was disruptive to the therap ist ’ s o ffice

. ”

• Finding 15: Spence “ repeatedly and unnecessa rily involved or threatened to involve law enforcement duri ng exch ang e s of poss ession of the child and in matter s that di d not warr ant law enforcement involvement ”

• Finding 16 : Spence was “ untruthf ul to law enforcement of ficials

. ”
Davis testified that Spenc e called or threatened to call the police half a dozen t imes, wh i le Sp ence a r gues that Find ing 15 is not supported by f ac tually or legally suffic ient evidence15 because she called the police only f our t imes , the police appeared only tw ice , and the child was present only on ce. Sufficient evidence supports the findings.
Th e f irst incident occu rred on August 18, 2019, a few we eks af ter the parties signed the MSA that extended Davis ’ s poss ession to standard possession beg inning August 1,
2019

. T he MSA , signed July 2, 2019, states t hat it is “ effective immediat ely as a con tra ct [and] shall supers ede any temporary orders or other agreements of the parties with resp ect to the subject matter hereof. ” The MSA called for the ex change to occur at school , which had not begun, wi th a fallback of the South Congress Hotel. Neverthe le s s, Spence asserted th at she would pick up the child from Davis ’ s home under pr evious arrangements. S he asserted that the
MSA was not eff ective because it had not been approved by a judge. Davis re spon ded that the attorneys had agreed to a n exchange th e n ex t morning at 9 a .m. at the child ’ s therapist ’ s office
i nstead of 8 a.m. at the hotel. Spence asserted that her attorney did not agree and that she would pic k the child up under th e pre - MSA order . S he called police to Davi s ’ s condomin ium where they w ait ed in the building lo bby. Davis allowed Sp ence to take th e child. Spence threaten ed to involve p olice o n September 21, 2019, when she had a
Fac eTime call w ith the child and did not rec ognize the background

. She a ccused Davis of
ha ving visitation so me w her e other than the ad dress listed in their court order , taking the child
somewhere e lse without notice, and not giving notice of cha nge of residen ce. She ask ed , “ Do I need to call the polic e to attempt to locate where you ’ ve taken our son ? ” Davis res pon ded that
the child was with him at his home , giving the addres s that he said she was told of at their July 2,
2019 medi ation whe n the y were discussing schools

. On November 22, 2019, Davis had a work commitment and told Spence that
Paulson wo uld be tak ing th e chi ld to his ther apy appointment. Spence did no t like that because16 she did n ot want contact with Paulson ; Spence sug gested she might call police to be pr esent because Davis ’ s plan viol ated their 2019 Order. Davis denied that Paulson ’ s taking the chi ld t o therapy violated th eir order a nd suggested that he could take the child to th e hotel at 8:30 a.m.
before his work commit ment

. Spence replied that she wou ld be at the therapist ’ s offic e with Austin police officer s. Davis suggested that Spence cou ld wai t to go t o the ther apist ’ s office
until after Paulson lef t the child , which woul d avoid disruption of the therapist ’ s office and

tr auma to the child

. Spence respon ded that the child “ love s firemen and policeman and EMS. He knows they ’ re helpers. ” Dav i s r esponded by rec app ing the options he had presented,

w ondering why Spence had ch osen the most disruptive option, and telling her that he had chosen
the leas t d isruptive option of taking the child to school instead of therapy. Spence responded ,

“ Keep y o ur e motional outbursts and f abrications to yourself. T hey can ’ t be good for your health. Many thanks. ” What neither party knew was that Spence ’ s call to the police resulted in po lice
app earing at the therapist ’ s office, w hich Crouse said disrupt ed th eir wo r k

. On March 30, 2020, Spence was late for their 8 a.m. exchange at the hotel. Davis sent an OFW message at 8:1 7 a.m. tel ling Spence they were leaving t he hotel to avoid further
exposure to the virus during the early weeks of the declared pande mi c. Spe n ce responded by
ap ologizing and a sking for a 9 a.m . exchange, but Davis h ad a work call that he needed to joi n ; he later explained that the call was a reh ear sal for a presentation in which he played a maj or and
critical role. H e offered th at Pau ls on coul d take the child at 9 a

. m. to deliver the child to Spence
or someone she t rusted or that Davis could make the exchange at 11:15 a.m. Spence suggested a

consta ble escort to facilitate a 10 a.m. exchange. Davis asserted that police involvem ent wa s n ot

nece s sary because it co uld tra umatize the child. Spence ag ain asserted that , because the child saw police as helpers a nd seeing them would not traumatize him, she would call the police to17 come to Davis ’ s home “ and help facilitate visita tion exchange wh ere it i s s upposed to be. ”
W hen Davis wro te that Spence ’ s mes sage was unclear and recounted the options he had presented including adding some “ makeup time ” to the e nd of Spence ’ s possession, Spence responded at 9:48 a.m. that Davis ’ s o ffered 11 :15 a.m. e xch ange was three hours la te “ which I
find unreasonable , and A PD finds un reasonable. They ’ re willing to send an officer to your
house to talk to you about follo wing our court order. They stand by. ” According to a police report from that date, Spence cal led the police at 10:1 2 a. m. and asserted that Davis fai led to
appear a t the hotel at 8 a.m. because he had a phone call to take ; there is no in dication whether the p olice went to the hotel

. The accusations in the police r eport attributed to Spence confli ct with her OFW messages to Davi s
. T h e exchange occurred at the h ot el at 11:15 a.m.
with out incident.
S pence asserts that the child never saw the police a nd that she has not called the police since the parent ing facilitator has been involved. Nei ther of thes e a sser t ions addres ses the
fact that factually sufficient evid ence supports Findings 14(l), 15, and 16

. C
. Inf antiliza t ion Spenc e c hallenges Findings of Fact 27, 28 , and 29 regarding Spence ’ s acti ons af

fecting the child ’ s progression in breastfeeding, to il e t tra i ning, c rib sleepin g, and th umbsucking

a nd regarding the ir effec ts on the child. She also con te sts Finding 11 (e ) that former gu ardian ad
litem Baker was aware of concerns about infantilization in 2019 but that these were not significant issues bec au s e t he child w as too youn g for infantilization to be a concern in 2019

. Spence contends that the fact that Davis in 2019 had concerns about inf an ti lization means t hat
infantilization in 2021

- 22 was not a changed circumstance . This argument ignores the fa c t tha t circumstances tha t are age

- appropriate for a three

- year - old could be in appropriate for a six

- year -18 ol d and could con stitute a material ly and subst antial ly changed circumstance. Factually sufficient evidence support s Finding 11 (e) . We will examin e e viden c e supporting findi ngs regarding infantilizing behavior.
1. Breastfeeding
Findi ng 27 summarized testimony about indicati on s that Spence cont inued to
breastfeed the child while telling the chil d to tell others that he is not being breastfed . The court
f o und “ c redible concerns t hat MOLLY SPENCE encourages the child to say he is not br eastf eeding. This negatively affects the child’s development, as it creates confusion for
the child. ” Spence testifie d that the child stopped nursing in September 2019

. He r f iancé , Shawn Lloyd , test ified in his July 2021 deposition that he has never se en S pe nce nurse the child.
H e testified that t he c hild asks to breastfeed and S pence te lls him no and that they have not done
that for a year
. Lloyd testifie d that the chi ld c r ies b u t says he is oka y with Spence ’ s response. Davis testified that he suspect ed t he chil d i s still breas tfeeding

. He testified that
he had no t seen the child breastfeedin g recently but that the ch ild frequently touched Paulson ’ s breasts indicating a de s ir e t o breastf eed. Paul son testified that the child tries to touch her breasts, point s at his mo uth, then her breast, and then back to his mouth , and has tried to put his mouth
over her nipple through her shirt . S he said he had engaged in that behavi o r w it hin t hree months
of th e November 20 21 hearing. Paulson testified that the child also has touche d th e babysitt er ’ s bre asts and talk ed about “ nursies ” as something that he is do ing with his mother at night

. Davis
testif ied that he wa s concerned that S pe n ce cl a i med she had stopp ed breastfeeding but had not and was instructing th e chil d to hide that fact.19 While H owell testified that she had no dir ect kn owledge that Spence was breastfeeding the child, Howell said she was conce rned by indic a tions that br eas t feedin g continued b e cau s e a previous student who was nursing had a di ff icult transition to kindergart en. Forensic ps ychological expe rt Alissa She rry 4 t e stified t hat , in t he domina nt culture here, most mother s wean their children from breastfeeding by a ge t wo and tha t mothers
who c ontinue beyond that time (1) often serve their own need for comfort and secu rity and feeling loved and want ed by their c hild a nd (2) send a messa ge that the ch ild is not safe to explore o utside the mother

- child relationship

. S her r y test i fied that , when a child is doing one thing, but a parent says that another thing is happening or tells the child to tell others that another thing is happening , it confuses the chi ld and causes them to be insecurely attached to th e parent.
F ac tua lly suffi c ient evidence supp ort s Finding 27

. 2. Other i nfantilizing beha viors In Finding 28, the court found , The Court heard eviden ce thr ough testimony of MATTHEW DAVIS and documentary evid ence supporting concerns that MOLLY SPENCE k ept the child in a di ape r m any mo n ths after he was t oilet

- trained, kept him in a crib for an extensive period which m ade it more difficult for him to use the ba throom at night after he was toilet

- trained, and sup ported the child in continuing to suck his thumb and in other way s a ct and be h ave younger than h is years.
D avis test ified that , when sig ning the MSA , he had not been concerned about how S pence was handling the ch ild ’ s transition f rom todd lerhood but that concer ns aro se as the child entered what
Davis called a critical dev elo pment p eriod

. F or exampl e, D a vis said h e was not concerne d when

4 S herry did not m e et wit h the child, Spence, Davis, or any of th e fam ily members or witne sses but did testify th at she read depositions of D avis, Spence, and two of S pence ’ s companions, plus Baker ’ s report, fo ren sic psychologist Dr. Da phne Ainslie ’ s pre - MSA evaluation s of t he parties , and so me other exhibits.20 the child was three years old and slee ping in a sleep sack in a crib, weari ng dia pers, and
breastfeedin g, but his concerns grew when Spence did not share his con cern regarding the
timel ine fo r phas i ng out th o se behav iors

. S pence con cedes in her brief that Davis transiti oned
the child out of a crib several months before she did

. Spe nce testified that the child was in a crib

con verted to a toddler bed by July 2019 ; D avis testified that h e l ast saw a crib in Spence ’ s h ome in a Fac eTi me call in December 2019.
Davis testified that the child was potty

- trained at hi s house a year before Spence reported that the child was potty

- trained at her house. 5 In Dece mber 2019, Davis asked Spence why th e c hil d ar ri v ed at his home wea ring a diaper and said th e child expre s sed em barrassment when Davis pointed out the diaper ; Sp ence said she allowed the child to pick out his clothes

. Davis reported to the child ’ s pediat rician in March 2020 that the child w as 90% po tty

- trained. In
Ma y 2 020, Davis reported to Spence by OFW me ssage that the child said in a FaceTime call that
he wa s wearing a diaper before the call and did not seem to know where to find his underwear

. Da vis a lso reported that the child h ad we eks pr e vious l y said he got a di aper rash when he pooped
while wearin g a di aper. Davis stated in the OFW message that the c hild had not used diapers at
Davis ’ s home in at least a year or pullups for many, many months. Spence testified that the child
was f ull y p o tty

- t r ained at her home by June 2020. Davis testified that S pence reported in the fall

5 Spence did not obj ect to D avis ’ s testimony at trial ; he r appellate compla int under Texas Rule of Evidence 602 that Davis lack ed person al knowledge of whether the child had be en wearing a diaper or got diap er rash wh e n he pooped while wearing a diaper was not pre serve d and cannot b e raised for the first time on appeal. See Tex. R. App. P. 33.1(a ) ; Tex. R. Evid. 103(a). Similarly, S pence did not preserve her appellate complain t t hat Da vis ’ s test imony that he

“ believe d ” that Spence repo rted by OFW message that the chil d was potty

- tr ained in the fall of 2020 was i nadmissible

.21 of 2020 that the child was p otty

- trained at las t, though he offered n o OFW message or email to
th at effect

. B oth parents t ried to curb the child ’ s thumbsucking a lbe it throug h diff erent

m ethods

. Davis said that he brought it up as an issue in January 2020 and suggested using a
bi tt er nail polis h in April 2020 but that Spence did not agree ; he said they agreed to try putting
banda i ds on the child ’ s thumb to dis suad e h im. In M a y 2021, Spence sen t D avis a message accusing him of coaching th e child to believe tha t he deserves to be called a baby because he ha d not stopped sucking his thumb

. In messages in August 202 1 preparing for a dent al appointment,
Davis ask ed Sp enc e t o brin g up thumbsucking a nd to get advice on how to curb it and offer e d to join the appoint m ent. Spence replied that s he would bring it up with the dentist and asked Davis
to discontinue att e mp ting to interven e in her parenting time for routine even ts lik e doct o rs ’ checkups. Aft er t he appointment , Spence reported that th e dentist suggested pu tting bandaids on
the thumb s at night

. Dav is agreed th at bandaids were a good idea and suggested not redirect ing
the chi ld because that could cause sh ame ; he a ske d i f Spen c e would consider u sing bitter nail polish if bandaids did not curb the habit. Spen ce replied that her redire c tion involved dis cussing why the child was thumbsucking and what he might do instead

. Spence said that the dentist recommended again st the nail p olish , but Davis t es ti fied that when he call ed the dentist ’ s office
he was told that the dentist had recommend ed trying the nail polish as a last resort before putting an apparatus on the child ’ s hand. T he parenting facilitator testified that th umb suckin g treatment

was a s ub ject of disagreement in October 2021. Sp ence t estified in November 2021 that she
would co nsider the bi tter n ail polish if the child continued to suck his thumb.
Factuall y suffic ient e vidence sup ports Finding 28.22 3. Sherry ’ s opi nio n on i n

f

antilization Sp ence does not challenge the substance of Fin ding 29 that summar ized Sherry ’ s testimony that i nfantilizing the child can cause him “ to feel and think as though he needs his
mother to feed himself, go to the bathroom, to be com for ted , etc. , ” which the court found to be

an unhealthy message . I n stead, Spence contend s that S herry ’ s evidence is inapplic able , irrelevant , and unhelpful because there is insufficient evidence of infantilizing

. Spe nc e did not
raise the relevance object ion at trial

. Having conclu ded that s ufficient evidence supports the finding s that Spence engaged in infantilizi ng behavi o r , Spence ’ s complaint that Sherry ’ s evid ence and Finding 29 are inap plicable and irrelevant fai l.
The trial court did not abuse it s d iscr etion b y determin ing that the facts underlying Findings 2 7 and 2 8 mark a substantial and material change in circumstan ces because , while infantilizing b eh avior s were not a concern in 2 019 when the child was thre e years old , they
became a problem whe n t hey persis t ed as the child gr ew older

. D. Pre
- existing con ditions and a nticipat ed changes Spence contends that her emb ellish m ent of facts about her life after the 2019
Order was n ot a change from conditions a t t h e time of the MSA or the 2019 Order

. S h e cont ends

t h at the MSA a nd 201 9 Order show that her behavior was expected to continue to some extent
while she underwent therapy. She argues th at, i f a change in circumstances was conte mplated by the parties to su ch a degree that it was factored into the order or ag r eement, the realiz ation of that anticipated change may not constitute a material and substantia l change. Z e i

fman , 212 S.W.3d at
587 , 593 ( child ’ s aging was not alone material and substantial change; orde r anticipated child ’ s aging and esta bli shed d ispute

- re solution proceed ing for school choice ) ; Wiese v. AlBakry , No. 03

- 14

- 00799

- CV, 2016 WL 3136874, at * 4 (Tex. App.

— Au stin Jun. 1, 2016, no pe t.)23 (mem. op.) ( children ’ s aging and starting school was anticipa ted an d is not alone mater ial or

su bst an tial chang e in circum stance)

. Spence challenge s Findings 20

- 23 on grounds that the poor commu nicatio n between her and Davis was not a material and substantial change in circumstances. While Spence and Davis ’ s communication issues plainly predate the 2019 Or der, D a vis testif ied that
the ir coparenting and the intensity of her disparagement of him had gotten worse sinc e the MSA

. Factually sufficient evidenc e supports the co urt ’ s Finding 20 that Spence ’ s communications to Davis were often inappropria te, mislead ing, o r factually inaccur ate in contrast to Davis ’ s appropriate communications ; Finding 21 that Spence ta unted and threatened Davis t hrough OFW
messages and refused to call him Matt despite his repeated requests that she not call him
Matthew ; Fi ndi ng 22 th a t Spe n c e got Ins tagram t o remove Paulson ’ s account because she did not consent to her posting p ic tures of the child; and Finding 23 that Davis unsu ccessf ully attempted for the most part to collaborate with Spence about parenting issues on OFW

. T he trial c ourt h a d before it suffic ient evidence on which it reasonably determined
that circum stance s , including the child ’ s development , materially and substantially changed in ways that were no t built into the 2019 Order. While the parties expected t he child to a ge, f a c tually sufficient evidence support ed finding that actions by Spence

— creating an envir on ment that diminished the child ’ s capacity to participate in therapy, delaying developmental milestones, lying, and calling police in the absence of d ang er

— constit ute d a material and subst antial change
in circumstance s , particularly as those actions intersect e d with the developing child ’ s needs. The
chil d continued to need therapy and his educational enviro nment was getting more structured

. Evidence s how e d that he engag e d in therapy and s chool more productively when staying with
Davis and that Davis more accurate ly assessed and reported the chi ld ’ s progress
. Spence did not24 show that the trial court abus ed i ts discretion by concluding in Conclusion 5 that cir cumsta nces had m aterially and sub stan t ially changed since the July 2019 MSA and that they had materially
and su bstantially changed since the 2019 Order

.

III. Child ’ s best interes t
In Co nc lusion 6 , the tr ial cou rt stated th at modification of the 2019 O rder is i n the
child ’ s best interest. Spence cha ll enges that conclusion and a rgues that legally and fa ctually
sufficie n t evidence do not support Finding 9 in which the court found that the child has significant social , behavioral , and emotion al need s that Davis ca n bes t me e t

. 6
T he te stimony of the child ’ s pre - kindergarten teach er and his occupational
th era pist support s th e finding that the child ’ s needs are better met by Davis. As set out ab ove, Howe ll testified th at the child was “ truly a d ifferent personality ” d epend ing on which par ent brought him to school , with more signs of anxiety on Spence ’ s days

. By t he end of th e school year, t he child continued to need a stuffed an imal from hom e when brought by Spe nce but did not bring one when Davis or Paulson brought h im

. After a vacation with Spence , the chi ld

ne eded t ime to warm up and re

- eng age with the cla ss, but there wa s no re - entry ph ase after a
vacatio n with Da vis. Spence unsuccessfully challenges some findings about Howell’s testimony.
Crous e reported simi l ar di fference s in the child ’ s behavior . She t esti fied that the
child wa s more dysregulated wh en Spence brough t him , sought more s e ns ory input , had more

6 Spen ce also asserts that the substance of Finding 9 does not show a material an d substa ntial change in cir cumstances. While the chil d ’ s issue s may not be a chang e in cir cumst ance s , the part ies a g reed and the court found that t he 2019 Orde r was in the chi ld ’ s best interest, in cluding its provision s stepping up to evenly split possession and full y shared dec isi on making. As we have held, f actuall y sufficient eviden ce supports a f inding of cha nged circumstan ce s as the child developed and the effects of each parent ’ s guidance be gan to manifest in the child ’ s behav ior. Thus, Davis ’ s meet ing his need s better is a changed circumstance

.25 difficulty controlling his body, needed more r edirecti on to task , an d had mo re difficul ty focusing , sup porti ng Findi ng s 14(d) and 14 (f). T he child go t more done and could progress through more
ski lls on days that Davis brought him , supporting Finding 14(g)

. Crouse tes tified that simil ar results o ccurred whe n the thera py was remote due to the pandemic. He had more difficulty participating at S pence ’ s hou se, was more reluctant to engage in thera py, and frequently r an away from the c omputer to hid e or cry. The child was abl e to have productive ap po intments
wh en staying with Davis , supp orting Finding 14(h )

. The child was able to get haircuts w ith
Davis at a barbersh op bu t struggled to complete th em with Spence and c ould have his toen ails clipped and could brush h is teeth ind ependently at Davis ’ s hom e but was s till “ getti ng used to ” nail clipping and had s ens ory a version to t oo thbrushing (m eaning an avers ion to the too th brush in his mouth) at Spenc e ’ s home , supportin g Finding 14(i)

. C rouse testi fied that Davis ’ s
assessment of the child ’ s abilities was more in line with her observations

. She testified th at it

was important for the child to have congruenc e between the household s to progress t oward h is
g oals. She test i fied t hat dysregul ated children will walk on their toes to soothe themselves;
P auls on testified that the child w alked on “ tippyt oes ” a lot a fter stayi ng at Spence ’ s house. Factually sufficient evidence supports these finding s. Spence challenges F inding 13(g) that “[t]he Court was aware that MA TTHEW DAVIS’ equ a l poss ession sched ule with the child coincided with the period in which significant impro vemen t was seen by Ms. Howell.” Spence contends that there is insufficient evidence that the improvem ent was “because Matthew was getting equal po sse ssion time.” T h e C ourt found

c oinc idence, not causation , in Finding 13(g); even if it found causation, th e evi den ce of a
noti ceable and growing divergence in the child ’ s behavior also supports a causal link.26 Sherry ’ s t e stimony about the e ffect on a c hil d of living with a n adult who lies

re asonabl y explained the diffe rence in the child ’ s behavior. She testifi ed th at living with a dults who regularly lie create s a false s ense of reality during a developmen ta l period in which chi ld ren are trying to under sta nd the w orld. C hi l dren recognize tha t the liar is telling the world one th ing but living another , and th os e chil dren st op t rusting their ability to perce ive the world around

t hem

. She said that liv ing in an al ter nate reality makes it hard for a lying par ent to be attuned t o the child ’ s need s and c auses an insecurely attached child. Sherry also test ified that a c hi ld wh o is insecurely attached to a parent would have distress a t separation from the p arent and wi ll developmentally regre ss; the child m igh t a ct youn ger than ex p ected and might ac t more aggressively with other children or might shut down and avoid co ntact with other children. She
testified that having police show up at a n exchange when no t need ed signi f ies to the child that

t hey should be a f rai d when fear is not r equired. Finding 30 regarding Sherry ’ s testimony is supported by legally and factually suffi c ient e vidence.
E vidence support ing Finding s 17 and 18 that S pence was untruthful to Davis
about the nature of Doug Zell ’ s relationship with he r and the child is evidence of the ty pe of discrepancy between statem e nts and observed reali ty that could cr eate the insecur i ty that
manifested in the child ’ s dysregulation described by witnesses. Davis testifie d at tr ial that Sp ence told him in July 2 019 that Zell was her boyfriend, that th ey were coparen ting and tryi ng to conceive a chil d together, and that Z ell w as goin g to be her partner. I n an October 2019 OFW

ex change, Davi s wrote that he wa s glad to hear th a t “ things are going well with you and Dou g ; ” asked if Doug w ould be put on the scho ol pickup / dro poff list ; speculated that at some point they
would b e at school for a function ; an d w rote , “ I ’ m sure you know this but I just wanted to reconfi rm that I look f or ward to making his acquaintance and it will be very cordi a l and chil l. ”27 Spe nce rep lied , “ To be q uite frank, Doug and I believe that tho u gh he is m y par tn er, and a part of [ the c hild] ’ s life, there exists a pretty high risk to his profile with you or Marg ar et [Paulson] having access to him i n a ny way. ” Spence l a te r filed a motion fo r enforcement i n part becaus e Davis went to a café owned by Zell , wh om sh e described as her significa nt other

. At another time, s he told Davis that Zell would step out o f the room durin g Davis ’ s Zoom calls with

t he ch ild.
But Zell te s tified in his depo sition that he consi dered his r elationship with Spe nce casual , that Spe nce w as not his girlfr iend , and that they w ere not trying to integrate their lives
and conc eive a child. He test ifi ed that he saw the child on ly at the café and was n ot formally
introd uced to him , was not present at Spence ’ s home durin g the child ’ s Zoom c all s with Davi s ,

wa s not coparenting th e child , and did not recall discussing his daughter with Spence

. He als o said he di d not object to Davi s ’ s coming to the café b ecause Zell “ like [ s] paying customers. ” He did not know that Spence sought judicial acti on to bar Davis from coming to the café

. At trial, Spence clar ified that she and Zell were not intentionally tr yi ng to have a
child , but that he r sta tement wa s “ not a complete lie ” bec ause unprotected sex could have led to

con ception

. She also said that Zell was a co pa rent through conversations about their children but
did not coparent the child in person. Sh e testified that she was surprised th at Zell did not
descr i be her as his girl friend.
W he n Spence ’ s fiancé Lloy d wa s to pick up the child in August 2 020 , Spence
refused to give hi s conta ct information to Davis

. At trial, Spence testified that Lloyd told her he
did not wan t Davis to have hi s c ontact information ; s h e said Lloyd had D avis ’ s information and
could have cal led him if needed

. At his deposit ion, however, Lloyd had testif ied that it would be impor tant f or a parent to have the contact information of a p erson pic k in g up his child. H e s aid28 he did not know t h at Davis asked for his information and that Sp ence refu sed to provide it

. Lloyd testifie d tha t he did not r emember if he told Spence that he did not want Davis to have his information because Lloy d felt un safe ; h e testified that h e w as more focused on be i ng on time.
Ther e was other evidence that Spen ce embellish ed the tru th or lied about he r bac kground , ed ucation, and employme nt history to Lloyd

. While t his behavior generally may not be a changed circumstance since th e 2019 Or der , it is relevant to the determination of t he
child ’ s best i nterest. Factually s ufficient evidence supports Fin di ngs 1 7, 18, and 19. Spence t esti f ied that she regrets some of her ac tions and is working in thera py on telling the truth

. She t estified tha t s he feels like she can n o w interact respect fully and pea cefully
with Davis and Paulson regarding coparenting

. Suff icien t evid ence sup ports the tria l court ’ s Finding 26 that Spence ’ s untruthfulness increased parenting confli cts with Davi s and played a sig nif icant part in causing

t h is litigation. 7 S pence ’ s apparent lies to the police (that Davis failed to appear with t he ch ild at
the appointed ti me at the hotel) and to Davis (that she had called the police and that they agreed
with her an d were standing by ) s urrounding the March 30 , 2020 exchange and Spence ’ s embellishment of her relationship with Zell leadin g to her mo tion to enf orce the non

- cont act
p rovision of the 2019 Or der provide plain support for Fin ding 26. There is no e vidence th at her

untr uthfuln ess eased parenting confli c ts or had no role in causi ng Davis to seek modif ication.

7 Fi nding 26 a l so states that Spe nce ’ s untr u thfulness had neg ati v e effe c ts on her personal and s ocial rel ationshi ps. Because that portion of the finding does not bear directly on the issues requ ired to modify the 2019 O r der, we ne ed not explor e the support fo r that as p e ct of Fi nding 26.29 More critically , sufficient ev id ence suppor ts Finding 25 tha t Spe nce ’ s untruthfulness indicates her inability to put the child ’ s need s b efore her own , inc luding as shown by th e following incidents:

• h er communication s to Davis and police on March 30, 2020 ;

• h er description of Da vis to the p arenting facilitato r as someone del usiona l who fabricat es situation s , as fou nd in Fi nding 24, was incon sistent with the facilitat or ’ s o bse rvations ; 8

• h er threat to call police whe n she did not recognize the background of a Face Time call claiming in co rrect ly that Davis had no t told her his new add ress ; and

• h er description of Zell as her boyf riend and coparent that formed t he basis of her en for cement action against D a vis ;

W hile S pe nce may hav e put the child ’ s interests first i n other situations, t he s e in cidents suppor t the trial court ’ s finding that Sp ence more than once was unable to giv e prece dence to his needs. 9 In sum, factually sufficient evidence support s concluding that the tr ial court did
not abuse i ts discretion by d etermining that the emo tiona l and physical need s of the child now and in the future, the par ental abilit ies of Spence a nd Davis, and the acts or omissions of a parent

8 Spence testified that Dav is ma nipulates truth , but flatly denied reporting to the parenting facilit ator on the intake for m that Davis is delusional and fabricates situations. W hen shown the paren tin g facilitator intake form o n which s he described Davis ’ s behavior as “ erratic and delu s ional ” and wrote that he “ shows a de ep willi ngness t o fabricate situa tions and instances to victimize himself and to p ortray me as erratic ” and “ has fabricated agreem ent between attorneys that have not ta k en place , ” Spence testified , “ I thought we wer e tal king about Dr. Ravenscroft ’ s intake papers, not Lesl ie ’ s , ” and “ I do n ot remember writing that, bu t it seems that I did

. ”

9 While not directly related to di shonesty, sufficient evidence supported Finding 14(m) that she video

- recorded within the chil d ’ s s ight when Paulson brought th e child to therapy. Crouse agreed in testimony that the recording was “ a lit tle bit distracting to the office ” which is not in the child ’ s best interest.30 supp ort the modifications to the 2019 Order

. See Holley , 544 S.W.2d

. a t 371

- 72. Factual ly
sufficient evid en ce suppo rts both Finding 9 and Conclusion 6.

I V . Mo dific ations of the o rder
T he trial court modified the 2019 order by awarding Da v is :

• greater time of possession tha n the stand ard possess ion order awards ;

• exclusi v e decision

- ma king rights after me aningful cons ultation with Spence on matt ers such as consent to psychological treatment, consent to invasive medical treatment s, ed ucation , legal matters, and maintaining a passport ;

• exclusive r igh t to schedule medical an d therapeutic appoi ntm ents fo r the child, excep t in an emergency while Spence has possessi on ;

• e xclusive right to determine the child ’ s reside nce within Travis C oun ty, Texas , and its c ontiguous counties ; and

• c hild support of ze ro dollars , and no obligati o n to pay Spence ch ild support

.

The court rene wed Smith ’ s appoi nt ment as paren ting facili tator for an additional year and issued
a perm anent injunc tion replacing the personal

- conduct orders provision in the 2019 Order.
A. Departu re f rom standard poss ession o r der Spence challen ges th e trial court ’ s f i n d in gs and conc lusions supporting its award
to her of somewhat less than standard p ossession

. She cont e sts the sufficien cy of the evidence to support Finding 31 that the 201 9 Order ’ s equ al possession terms are un w orkable or inappro priate
under the totali ty of the circumsta nces ; Finding 32 that limi ting her possession time with th e child limits the differen t scenarios under which the child will be exposed to her lying and
mani pulative b eha vior ; Finding 33 that limi t ing her possession time with the child in creas es t he time during which Davis can meet the child ’ s serious developmenta l, social, emotional, and o ther
needs ; and Fi nding 34 and part of Conclusion 15 , both stating that the sched ule limits Spence ’ s31 possessio n only to the exten t necessary to protect the b est interest of the child

. S he challenges
Conclu sion 13 that D a vis rebut t e d the pr esumption that the s tandard p ossession o rder (SP O) set
out in Texas Family Code section 153.312 i s i n the best inter est of the chi ld and Conclusi on 15
that deviation fr om th e SPO is in the child ’ s best int erest.
J oi nt managing conservators hip does not re quire the award of equal or nearly equal period s of physical possession of and access to the chil d b y each of the joint conserva t ors , but there is a rebuttable p resumptio n tha t t he SPO provides reasonable minimum possession of a child for a parent named jo int managing conservator an d is in the best inte rest of the child. See Tex. Fam. Code § § 153.135 , . 252

. When ordering terms ot h er than the S PO , t he trial court must

con sider the guidelines of the SPO and may consider (1) the age, developmental status,
ci rcumstances, needs , and bes t interest of the chi ld; (2) the circumstances of the managing

conserv a to r and of the parent named as a possessory conse rvator ; and (3) any oth er re levant
factor. Id. § 153.256.
S pence does not detail the departures fr om the SPO , but our review of t he reco rd
reveals th ree deviations . D uring the school year, sh e has the chi ld on Thursdays from the end of
school until 6 p.m

. that same day, plus t he fi rst , third , and fifth week ends from Fri day at the end
of school unt il 5 p.m. on Sunday. During the su mmer , she is entitle d to one fourteen

- day period of p ossession

. By contrast , u nder the SPO , Thursday posse s sion i s from 6 p .m . to 8 p.m., weekend po ssess ion begins at 6 p.m. on Friday and last s until 6 p.m. on Sunday, and the
extende d summer possession lasts thirty da ys with slightly ear lier than usual notice required for
des i gna tin g th e dates for tha t possess i on
. Se e id. § 153 .312.
The trial court d id no t abuse its discretion by awarding the modified Thursday and weekend possession times because the mo difications reaso nabl y a ddress concerns in the re cor d32 about minimiz ing disrupt ion to the child from poss essio n ex c hanges

. The r ecord is replete with

e viden ce of the parties ’ di fficulties in exchanging possession that d id not occur before the 2019
Order . T hough the dis putes appe ared to reduce as time passed , evidence support s that the y are a material and substan t ial change in c irc umstance s
. The Thursda y s ch edule eliminates one change in pos session by h aving Spence pick up the child from school instead of having Davis pi ck up the child , ced e p ossession to Spence at 6 p.m., then reta k e possession at 8 p.m. S imila r ly, on Fridays of Spence ’ s weekend posses sion, she takes posse ssion at the end o f school , and her possession is uninter rupted until one hour earlier on S unday than under the SPO; this avoids a
Frid ay after

- school exchange of po ssession and accords Spence l onger weekend poss ession even
with th e ea rlier Su nday exchange. Evidence supports that these changes are in the child ’ s best interest.
The trial court did not abuse its discretion by reducing the l ength o f Spence ’ s extended su mmer possession

. W hil e th er e is evidence that Spence lie d and manipul ated bef ore the 2019 Order, factually sufficient evidence supports a finding tha t since that order her lies began to involve and affect the child who by then had gre ater capacity to b e a ware of them

. T he

court is w it hin its power a s factfinder to draw rea sonab le inferenc es from the evidence, and
evidence that the child is attempting to breastfeed a year after he was suppo sedly weaned supports a f inding that Spence exposed the chil d t o dissonance between his liv e d exper ience and

t he version of events told t o oth ers ; evidence showed that such dissonance was harmful to the
child i ndepende ntly of whethe r Spence lied directly to him

. The e vidence that he is more dysre gulated after her pos session dev eloped after the 2 019 Order awar ded Davis greater
posse ssion , a s did eviden ce that the child perf ormed better in therapy when at Davis ’ s home and after his po ssession periods than he did when at Spence ’ s home or after her po ssession.33 Factual ly sufficient evidence supports Finding 3 1 that th e even ly split poss ession w as in appropriate , Finding 3 2 tha t the limitation of th e sum mer period redu ce s the different scenarios under which the child will be exposed to Spence ’ s lying and manipulative be ha vio r , and Finding
33 that limit i ng her possession increases t he time during w hich Davis can meet the child ’ s serious needs

. T he trial court did not ab use its discretion by reaching Conclusion 13 that the
pr esumption t hat the SPO is in the best in terest o f t he chi ld has been rebutted or C onclusion 15
that deviation from the SPO is i n the child ’ s best int erest. T he trial court did not abuse its discretion by making Finding 34 that its order limits Spence ’ s possession only to the extent necessary to protec t th e best interest of the child

. B. E xclusive r ight to make decisions for child af ter m eanin gful consul t ation
In Findings 35 and 36 , the court sta t ed that awarding Davis exclusive d ecision

making rights and the exclusive right to schedule medical appointme n ts (except in emergenc y) and therap e utic appointments

— all after mean in g ful consul tati o n with Spence

— was in the child ’ s best interest s
. Spence argues that these fi ndings are not su pported by sufficient evidence and do not represent a material and substant i al change.
Davis testi fied that , ev e n with parenting f acilitator Smith ’ s help , th e p ar ties took

s ix months to agree on a n ind ividual therapist and that their indecision caused them to miss a window for a neuro psy ch ological evaluation. C oncerning the firs t pr oposed evaluator in June
2020 , D a vis testified that S pence scheduled an appoin tment an d filled out inta ke paperwork
before infor ming Davis about the appointment

. Davis asked to review Spence ’ s comments on the intake paperwork , but Spence said she did n ot have the form , then in a later m e ssage said she
fi l led out her p aperwork with a pen , which she said would prevent Davis from fill ing it out.34 When Davis replied that he wanted to add his perceptions for the doctor , to avoid providing separate paperwork and ultim ately to ha ve a productive p rocess , he said h e would share his intake pa perwo rk and still hoped to see Spence ’ s document. Spence repl ied , “ L ol

. ” W hen Davis questioned that respon se, Spence rep lied:

T o be clear, I alwa ys find the stories you writ e t o me v ery clownish, and it ’ s hea l thy to laugh when things are funny. S omethin g so simple as intake forms forgotten to be share d, that you could easily ask for from the office yourself, turns int o a tale of interference and v ictimization.
Som ething so sim ple as fil l i ng o ut double forms t urns into your ins istence that you be shared the s ame forms to

. . . . write in the margins.
Somethi ng so simple as two forms turns into you insinuating a Ph. D

. can ’ t read two of and understand both house ho lds concerns

... . So I laugh

. Yo u so silly.
(ellipses in or iginal). Dav is testified that the evalu ator ’ s office was initially reluctant to share Spence ’ s form because of Health I n surance Portability and Account ability Act ( HI P A A ) priv acy

concerns but eventually provided th e f orm. T h e parents then could not agree o n how they bo th
could participate in t he ap pointment; COVID restrictions permitted only one parent to attend in
p erson , and Spence rejected Davis ’ s offer to participate by video or for each parent to attend half

t he appoi ntment. Spence cha l lenges F i nding 14( k) that S pence did not follow Crouse ’ s

re commendations for scheduling the child ’ s ap p o i n t me n t s and made scheduling appo intments
dif ficult at times

. OFW message threads in evidence show a conversation about sche dul ing that
concerned sche duling ar o und su mm er camps a nd both parents ’ vacations and c amps
. A threa d
also track s Spence ’ s request to discuss Crouse ’ s determination that t he child needed only one35 weekly appointment in light of the recommendation by Bunner tha t t he child have t wo we ekly

occu p ationa l therapy ap pointments to prepare for k inder garten

. The parents discussed how many appointments the child missed and why, though Spence did not in the exhibits admitte d explain why the child missed one of the ap po i nt men ts during her posses sion time

. Th e process also included errors by the the rapis t ’ s s che duler regarding availab ility. Crouse wrote t hat she had
reviewe d Bunner ’ s recommendation but determined that , in light of progress in over two years of therapy, t he child needed onl y one session p e r week. Crouse te stified that she was pulled out of providing therapy t o get involved in a scheduling dispute betwe en the parent s, which she said
does not happen with a lo t o f pa ti ents. The parties had differing views o f e vents, but factu ally
sufficien t ev idenc e supports Find ing 14(k )

. S pence arg ues t h at th e record do es not show a m aterial or substantial change from
the 2019 Or der. But the parties agreed in 2019 not to ap point a primary parent and to sha re the
decisi on - making as to medica l , dental, su r gica l, invasive, p sychologic al, p sych iatric , e duca tion al
issues and all other rights and dut ies and that th ose arrangements were in the child ’ s best interest

. Davis testified that the coparenting that occurred was not w hat he envisioned when agreein g to
t he MSA

. There is evidence that Spence re sist ed co operating with Davis in seeking and attending an evaluation and that the par ents ’ difficult ies in reaching ag reement was unusual and pulled the occupational ther apist awa y f rom treating other patients

. Ev i dence also showed that
Davis ’ s observations o f the child ’ s abilities are more aligned with th e child ’ s therapist ’ s observations and tha t the child ’ s behavior i s better regulate d when he is with Davis

. Factually
sufficie nt evidence supports finding t hat c i rcumstances change d meaningfully and substant ially
since the 2019 O r der and that award ing Davis exclusive decision

- making and appointment

scheduling rights was in the child ’ s best interest, supporting Findings 35 and 36.36 C. G eographic restriction
Da vis re q uested t hat the ge ogr aphic restriction clau se of th e order that lim its
where he can establish the child ’ s residence be modified

. T he 20 19 Order establishes th e site of
the ch i ld ’ s residence as Travis County, Te xas, and den i es both parents the right to es t ablish the
child ’ s residence els ewhere absent court order or signed agreement filed by the parties , while the
202 2 Order allows Davis the right to establish the child ’ s primary residence and to move with the
ch ild to any of the co unties contiguo us t o Trav i s County , Texas , a nd lifts the restriction ent irely
if Spence moves away from Trav is County , Texas. The change in granting Davis the ex clusive right to es tablish the child ’ s primary
residence is consistent with F inding 9 that D avis is best a ble to meet t he child ’ s needs , which we have found supporte d by sufficien t evidence. All owing the c hild ’ s residen c e to be in Travis
Cou nty, T e xas , is not a change from the 2019 Order.
B ut no evidence support s expan ding the size of the geographic range for th e child ’ s r esidence to inc lude contiguous counties

. D avis testified t hat he does not pl an to mov e away from Travis C ounty, Texas , which does not support expansion of the geographic range
. Bec ause no evidence support s a chang e i n circumstance tha t sup po rt s the e x pansion of the
geo graphic region in which D avi s can es tablish the child ’ s primary residence, we concl ude that
the trial court abused its discretion by modifying the previous order in that res p ect, sustain Spence ’ s issu e i n th is regard, and modify the 2 022 Order to rei nstate the prior restriction of th e chi ld ’ s residen ce to Travis County, Te xas
. D

. Child support Spence does not dispute determinations that, because Davis waive d his right to
receive monthly child suppo rt and the parties ’ incomes ar e largely disparate , applica tio n of the37 percentage gui de lines would b e unjust (Finding 37) , nor does she contes t the con clusion that her paying no child support is in the child ’ s best interest ( Conclu sion 20)

. She contests Co n cl usion 19 that terminating D avis ’ s ob l igation under the 2019 Order to pay child supp ort a nd to maintain
a life

- insurance policy on himself is in the child ’ s best interest. She contend s that there has been

no material or substantial change in ci rcumstanc es and argues for the continua tion of t h e terms of
the MSA and 2019 Order under which she r eceived $3,000 per month in child support

. Though the parents ’ income s remain disparate, we have co ncluded above that factually sufficient e vidence supports findin g t hat ther e has been a material and sub stantial change in the child ’ s c ircums tances , and t he shift in the p roportionate time of possession means the child will spend more ti me with Davis compared to the even split awarded by t he 2019
Order. T he record sh ows that Spence has income to sup port t h e child during her possession
time. Factually suff icient evidence supports Conclusion 19 that terminating Davi s ’ s obligation to pay Spence child support is in the child ’ s best interest. 10
E. Appointment of a parenti ng fa c ilita tor
T he trial court in 2019 or d e red th at the pare nts use a parenting faci lita tor t o help
the m address issues affecting the child

. It later ap pointed L e sl ie Smit h as facilitator

. The 2022
Order renews that appointment and describes t he facilita tor ’ s duties as it did in the 2019 Order.
S pence conte nds that there is a conflict bet ween Finding 23 that Da vis attempted,

“ un successfully for the most part, to collabor ate with MOLLY SPENCE about parenting issues
on Our Family Wizard an d in par enting f aci litations s essions ” and Findi n g 38 tha t “ i t appeared to

10 Spence challenges Conclusion 18 that awar din g Davis t he exclusive righ t to rece i ve child support i s in th e child ’ s best interest , but review of th at conclusion is unnecessary b ecause t he court awarded no child support

.38 t he C ourt as though Les lie Sm ith w as effective with both parents and that the parents had previously agreed to wo rk with her. ” T hough there was evidence of disagreement s in the nee d
for facilitati ons , schedulin g facilitations, setting th e ag enda fo r fa cili tations, communication
durin g the facilitations, and reaching resolutions, we need not determine whether suffici ent evidence supports th e portion of Finding 23 regarding th e succes s of facilitatio n. Any error in that finding is harmless bec ause factually sufficient evidence supports Find ing 38 and
Co nclusion 23 th at Smith should be appointed as the parenting facilitator because this is a high

conflict case and Leslie Smith h as previously worked we ll wit h the family. T he trial court did

n ot abuse its discr etion by extending the faci l itato r requirement or by reappointing Smith.
F. Permanent injunction Spence contend s th at Conclusion 21 , which provides that the evidence su pports imposition of a perma nen t injunction , conflicts with the M SA pr o vision that does n ot impose a permanent injunc tion and include s the personal

- conduct order from the parties ’ California order
and the child ’ s bill of rights. She argues that the mo dification is not supported by a ma terial and

s ubstan tial cha nge of cir c um s tances.
T he MSA provides that the C alifornia orde rs are superseded except for “ the
in

junction s from t he personal conduc t order w hich will be incorporated int o an Agreed Final
Order. ” In rele vant p art, the 2019 Ord er enjoins the parties from co ntactin g i n any way the
fami ly, friends, significan t oth er s, and business associates of the othe r party and bars the pa rties from having in

- person contact except for custodial exchanges. T he 2022 O rder deletes provisions p roh ibiting stalking o r similar activities ( which Davis had re quested in 2019 because
of S pence ’ s actions that had not persisted ) but retains provisions against disparag ement of the other paren t; it also enjo i ns the parents from going within 150 yards of th e o ther party or their39 significant other, t heir resid ence, or their place of employment e xcept to f a cilitate exchanges but
allows proxim ity to at tend the child ’ s appointments or education al /extracu rricular e vents and appointments with the parenting facil it ato r. Testimony indicated that the child ’ s ag ing and prog re ssion into kindergarten
woul d en t ail more public eve nts that parents m ight atte nd and that having both parents and their significan t others a ttend those events civilly would benefit the child

. We cannot say th a t the trial

court abused i t s discretion by co nclu ding both that this evid ence demo n strates a change in
circ umstances and that the 2022 terms are in the child ’ s best interest. W e find no legal barrier to
or abuse of discretion in the tria l c ourt ’ s imposition of a permane nt injuncti o n in the 2022 Orde r
.

CONC LUSION
We sustai n in part and overrule in part Spence ’ s sole issue on appeal . T he trial
court abuse d its disc retion by expanding the permissible location of the child ’ s residence t o i nclude counties contiguous to Travis Coun t y, T exas , in its F inal Order in Suit to Modify the
Paren t

- Child Relationship signed January 10, 2022

. We modify the resi dence provi sion on p age four of the order by striking the language “ and contiguous countie s ” and any other similar provisions. Fi ndin g no o ther abu se of dis cretion presented , we af firm the or der as modif ied.

______ _________ _____ _______ _______________ Darlene B yrn e , Chief Just ice

Befo re Chief Just ice Byrne, Justices Tr iana a nd Sm ith
Mo dified in Part, Affirmed as Modified
Fil ed : January 27, 2023