NUMBER 13-19-00057-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF K.L.M. and J.A.M., Children

On appeal from the County Court at Law No. 5

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Justice Longoria

Appellant Mother appeals the trial court’s final order in appellee Father’s suit to 

modify the parent-child relationship.1 By three issues, Mother argues that the trial court 

abused its discretion by: (1) ordering Mother and Father to exchange the children in Alice, 

Texas instead of their respective homes; (2) removing the Soberlink monitor device 

1 To protect the identity of the children, we refer to the children and their parents using aliases. See 

TEX. R. APP. P. 9.8(b).
2

requirement; and (3) granting Father unsupervised overnight access to the children. We 

affirm.

I. BACKGROUND

Mother and Father were married in May 2009. They had two children together 

during their marriage: their daughter K.L.M. was born in 2013 and their son J.A.M. was 

born in 2015. During their marriage, they lived in Von Ormy, Texas. In August 2015, 

shortly after J.A.M.’s birth, Mother moved to McAllen, Texas and filed for divorce. The 

trial court entered a final divorce decree on March 28, 2017. The final divorce decree, 

which was based on a mediated settlement agreement between Mother and Father, 

required Father to utilize a Soberlink alcohol monitoring device before and during each 

visitation period with the children. The decree also stated that Father’s visitation with the 

children should occur in Hidalgo County and that it should be supervised. The decree 

also ordered that Father would be allowed unsupervised visits starting in August 2018 

when J.A.M. turned three.

However, in July 2017, Mother filed a petition to modify the parent-child 

relationship seeking to postpone Father’s unsupervised visits with the children. According 

to Mother, it would not be in the best interest of the children to have unsupervised visits 

with Father because K.L.M. was demonstrating significant speech delays and J.A.M. was

experiencing allergies and lacked emotional maturity. Additionally, Mother asserted that 

Father had failed a Soberlink alcohol test.

In August 2017, a temporary restraining order was signed to prevent Father from 

having overnight visitation with the children. Later the same month, Father filed a counter 

petition to modify the parent-child relationship. Father requested that he and Mother be 
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granted standard visitation pursuant to the Texas Family Code. He also requested that 

the parties meet at a midpoint to exchange the children at the beginning and ending of 

possession periods instead of exchanging children at their respective homes. At the time, 

Father lived in Von Ormy and Mother resided in McAllen. Father averred that the 

requested modifications were in the best interests of the children and that the 

circumstances of the children and the parties had materially and substantially changed 

since the divorce decree was issued.

In November 2017, the trial court ordered a mental evaluation of Father. Mother 

was ordered to arrange an appointment with a psychiatrist for Father but failed to do so. 

At a hearing in February 2018, Father notified the court that Mother had failed to arrange 

a mental evaluation appointment for him even though he had made himself available on 

numerous occasions. The trial court reiterated its instruction that Mother quickly arrange 

a mental evaluation for Father. In April 2018, based on a review of Father’s mental health 

evaluation, the trial court ordered that Father be allowed to have unsupervised overnight 

visitation.

In August 2018, a final hearing was held on the dueling petitions to modify the 

parent-child relationship. The trial court’s final order, which was signed in November 

2018, granted standard unsupervised visitation to both parents, omitted the Soberlink 

monitoring device requirement, included a provision on electronic and video 

communication, and required that Mother and Father meet in Alice, Texas to exchange 

possession of the children.

In December 2018, Mother filed a motion to modify judgment or for new trial. In 

January 2019, the trial court denied her motion. This appeal followed.
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II. ANALYSIS

In three issues, Mother argues that the trial court abused its discretion in modifying 

the parent-child relationship by: (1) ordering the exchange of the children for visitation 

purposes to occur in Alice, Texas; (2) deleting the Soberlink monitoring device condition;

and (3) granting Father overnight unsupervised visitation.

A. Standard of Review and Applicable Law

We give wide latitude to a trial court’s decision on custody, control, possession, 

and visitation matters. See In re H.N.T., 367 S.W.3d 901, 903 (Tex. App.—Dallas 2012, 

no pet.); see also In re L.G.K.S., No. 12-18-00178-CV, 2019 WL 4462693, at *2 (Tex. 

App.—Tyler Sept. 18, 2019, no pet.) (mem. op.). We will only disturb the trial court’s 

judgment when the record as a whole demonstrates that the court abused its discretion. 

See In re H.N.T., 367 S.W.3d at 903. “In family law cases, the abuse of discretion 

standard of review overlaps with traditional standards of review. As a result, legal and 

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

factors relevant to our assessment of whether the trial court abused its discretion.” Id. 

Thus, to determine whether the trial court abused its discretion, “we consider whether the 

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

exercise of that discretion.” Id.

“In an effort to ensure stability and continuity for children, Texas law imposes 

significant hurdles before a conservatorship order may be modified.” Id. at 904 (citing In 

re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). 

Specifically, a trial court may only modify a conservatorship order if modification would be 

in the child’s best interest and “the circumstances of the child, a conservator, or other 
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party affected by the order have materially and substantially changed” since the previous 

order. TEX. FAM. CODE ANN. § 156.101. Examples of material changes include: “(1) 

marriage of one of the parties, (2) poisoning of the child’s mind by one of the parties, (3) 

change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, 

or (5) a parent’s becoming an improper person to exercise custody.” In re A.L.E., 279 

S.W.3d at 429.

B. Setting Alice, Texas as the Exchange Location was not an Abuse of Discretion

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

Mother and Father to exchange the children in Alice. Regarding the dropping off and 

picking up of children, § 153.316 of the Texas Family Code states the following terms 

shall apply in a standard possession order, absent a mutual agreement to the contrary: 

the court shall order the following general terms and conditions of 

possession of a child to apply without regard to the distance between the 

residence of a parent and the child:

(1) the managing conservator shall surrender the child to the 

possessory conservator at the beginning of each period of the 

possessory conservator’s possession at the residence of the 

managing conservator;

. . .

(3) the possessory conservator shall be ordered to do one of the 

following:

(A) the possessory conservator shall surrender the child to the 

managing conservator at the end of each period of 

possession at the residence of the possessory 

conservator; or

(B) the possessory conservator shall return the child to the 

residence of the managing conservator at the end of each 

period of possession.
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TEX. FAM. CODE ANN. § 153.316(1), (3)(A), (B). However, § 153.316 only guides the 

creation of the original possession order. The trial court’s order that Mother is appealing 

was based on petitions to modify an existing possession order, meaning § 156.101, not 

§ 153.316, is the applicable section. See Weldon v. Weldon, 968 S.W.2d 515, 517 (Tex. 

App.—Texarkana 1998, no pet.) (“[Appellant’s] reliance on Section 153.316 and its 

mandatory language is misplaced. The trial court’s decision was on a motion to modify 

an existing possession order, not an initial possession order. Therefore, Section 

156.301[, which has been recodified to § 156.101,] . . . is the appropriate section under 

these circumstances.”).

Under § 156.101, the court may modify the possession order as long as the 

modification would be in the best interest of the children and the circumstances of Mother, 

Father, or the children have changed. TEX. FAM. CODE ANN. § 156.101. Concerning the 

element of changed circumstances, “[o]ne party’s allegation of changed circumstances of 

the parties constitutes a judicial admission of the common element of changed 

circumstances of the parties in the other party’s similar pleading.” In re L.C.L., 396 

S.W.3d 712, 718 (Tex. App.—Dallas 2013, no pet.). Thus, Mother’s allegation of changed 

circumstances in her original motion to modify the parent-child relationship constituted a 

judicial admission of changed circumstances for purposes of Father’s counter-petition. 

See id.

Mother argues that ordering the exchange of the children to occur in Alice was not 

in the best interest of the children; instead, Mother argues that the trial court’s decision 

was purely punitive in nature. In January 2019, when the trial court denied Mother’s 

motion to modify judgment or for new trial, the trial court declared:
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Based on the evidence presented and the argument of counsel and 

[Father], [Mother] has filed misdemeanor criminal charges against [Father] 

in another Court of this county. Pending the charges there, that Court has 

ordered as a condition of [Father’s] bail that [Father] have no contact with 

the children. [Father] testified that he has had no contact with the children 

since last July. This Court is not aware of what evidence was presented in 

the other Court. But, if the evidence is identical to or close to the evidence

presented in this case, this Court does not see any basis prohibiting [Father] 

to exercise his visitation rights with his children. Accordingly, this Court 

finds and concludes that [Mother’s] filing criminal charges against [Father] 

was done to circumvent the Orders of this Court. Accordingly, setting the 

exchange point at a half-way point is appropriate.

However, at the final hearing on the motion to modify, the trial court heard testimony that 

could support the trial court’s conclusion that meeting in Alice to exchange the children 

was in the children’s best interests. First, Father contended that the original divorce 

decree stipulated that Mother was to drop off and pick up the children in Alice for summer 

visitations. Also, Father testified as follows:

And [Mother] does not allow me to—I have not exercised—first of all, I have 

not exercised the right to electronically communicate with my children since 

it became very aware that [Mother], through her writing in an e-mail saying 

that she would not allow me to communicate with the children via Skype or 

video-teleconference, which is allowed. I have not exercised that right, so I 

took the phone back because then I wasn’t able to talk to my daughter 

anymore on the phone. She was always consistently finding reasons.

This is—it is not—they have not shown one case where the children have 

been endangered, harmed, emotionally, physically, not one piece of 

evidence to show that.

My children and I, we have a great relationship and it’s only being impeded 

by [Mother]. They’re doing everything in their power to prevent me and the 

children and myself to have a strong relationship.

. . .

Furthermore, if allowed to have standard visitation with the children, we 

have previously agreed to meet in Alice, Texas, because it’s halfway. I think 

that is best.

....
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Your Honor, I would like to—if standard visitation is granted, for us to meet 

in Alice, Texas, on mutual ground. It’s a little more than halfway for 

myself. . . . I believe it’s in the best interest of the children to have me in

their lives and vice versa. And every—it’s—many times I’m at a loss of 

words for the actions that [Mother] continuously does to prevent that 

relationship. In two and a half years of going through every hoop that I’ve 

been told to do—and no offense to any judge. I’ve done everything, every 

single thing I’ve been ordered to do to show who I am as a father. And for 

that to be taken away from me, from the children, it’s just absolutely wrong, 

in my opinion.

Mother asserted that it would be impossible for her to get the children to Alice because of 

her work obligations. The following exchange occurred: 

[Mother’s Attorney]: She’s going to be doing practicum, Your Honor. She’s 

going to be obligated to be at a facility to get her 

master’s degree. She’s working on a master’s in 

clinical psychology. And what she does is she works 

as needed through the year, but her practicum would 

require her to be there all day long. She can’t have the 

children in San Antonio at 6 o’clock on Friday. It’s

impossible when she’s working.

[Trial Court]: He’s asking that they meet in Alice.

[Mother’s Attorney]: Well, she can’t have them in Alice at 6 o’clock if she’s 

working till 5:00.

[Father]: Your Honor, I’ll change it to 7:00. I mean, I’m willing to

move things around, you know, to accommodate her. 

But for two and a half years, I’ve taken an entire 

financial brunt [sic] burden of everything. And I’m just 

asking to meet in the middle. I mean, if she needs 7 

p.m., I’ll do 7 p.m. on Friday night. It’s just—I don’t 

think it’s really that big of a deal for them to be fighting 

about just for us to meet in the middle. We’re talking

one time a month, you know, that she has to go up 

there Friday and then on Sunday to Alice, Texas, and 

for the long vacations. I mean, she’s not doing it every 

other weekend.

[Mother’s Attorney]: The decree provided that she would meet him once in 

the summer. She wasn’t obligated under the decree to 
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be doing all the driving. And we respectfully request 

that since he doesn’t have any other obligations—

[Trial Court]: Well, on a matter of fairness, this will be once a month, 

and I will order that for that weekend visitation that the

exchange of the children be in Alice.

We cannot say that the trial court acted arbitrarily or without reference to guiding 

principles. See In re H.N.T., 367 S.W.3d at 903. The record as a whole reflects that the 

trial court heard testimony concerning the best interests of the children in seeing their 

father more often. Therefore, we conclude that the trial court did not abuse its discretion 

in setting the exchange location in Alice. See id. We overrule the first issue.

C. Deletion of the Soberlink Requirement was not an Abuse of Discretion

In her second issue, Mother argues that the trial court abused its discretion in 

removing the Soberlink condition. Both the mediated settlement agreement and the final 

divorce decree required Father to submit to Soberlink sobriety testing twenty-four hours 

before the beginning of any possessory period with the children and twice during each 

possession period. This requirement was to last for five years from the date of the 

divorce. However, in its final order, the trial court removed the Soberlink testing condition, 

even though Father never requested that such condition be removed.

Mother asserts that the trial court abused its discretion because under the Texas 

Rules of Civil Procedure, the judgment must “conform to the pleadings” of the parties. 

TEX. R. CIV. P. 301. However, “[i]n child custody cases, where the best interests of the 

child are the paramount concern, technical pleading rules are of reduced significance.” 

Messier v. Messier, 389 S.W.3d 904, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.); 

Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied) (holding that a 

trial court can place conditions on visitations even when such conditions were not 
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requested in the pleadings); see also Cain v. Cain, No. 14-07-00115-CV, 2007 WL 

4200638, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (“[T]he trial court’s 

efforts to exercise broad, equitable powers in determining what will be best for the future 

welfare of a child should not be hampered by narrow technical rulings.”). Thus, it does 

not matter that Father did not specifically request the deletion of the Soberlink testing 

requirement. The trial court may unilaterally impose conditions not requested and does 

not abuse its discretion as long as it does not act arbitrarily. See In re H.N.T., 367 S.W.3d 

at 903.

Mother testified that maintaining the Soberlink requirement was in the children’s 

best interest because it assured that Father was sober before and during visitation 

periods. Father testified that he already utilizes a portable breathalyzer machine twice a 

day for a different court and that he has had no violations. Mother attempted to introduce 

evidence of an alleged positive test result on the Soberlink that occurred on April 7, 2018. 

However, Father testified as follows:

For my next exhibit, Your Honor, I want to show the breathalyzer test that 

[Mother] brought into question.

On—it was a false positive, Saturday, April 7th, 2018, at 9:40 a.m., had a 

BAC of a 0.031. A mandatory test had to be completed. And that was 

completed at 9:56 a.m., and it was confirmed as 0.000.

It was a false positive due to having hand sanitizer on my hands prior to 

taking the test. And as soon as [Mother] got a copy of the test result coming 

back as 0.000, Your Honor, she immediately dropped off the children to me.

So this shows that she was not concerned about any alcohol in my system.

Ultimately, the trial court held:

With regard to the motion for enforcement, . . . [t]he allegation that he tested 

positive 0.031 on Soberlink, I’m convinced is a false positive. Subsequent 

testing that resulted in a 0.000 shows he—that [Father] did not consume 

any alcoholic beverages.
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The respondent has testified that he has continued his psychological and 

psychiatric treatment through various VA programs. And so based on that 

evidence, I find that he has not violated those orders of the Court.

Thus, there was some evidence before the court that the Soberlink testing 

requirement was no longer in the best interests of the children. We conclude the trial 

court did not abuse its discretion in removing the Soberlink testing requirement. See id. 

We overrule Mother’s second issue.

D. Granting Overnight, Unsupervised Visitation was not an Abuse of Discretion

In her third issue, Mother argues that the trial court erred by granting Father

overnight visitation “against the great weight of the evidence and against the interest of 

the children.” Mother makes this assertion based on the testimony of Dr. Maria Cristina 

Quilantan-Diaz, the children’s counselor. Quilantan-Diaz testified that K.L.M. is “very 

attached to her mom.” She also opined that K.L.M. has a semi-significant speech delay. 

Regarding J.A.M., Quilantan-Diaz opined that he is not very developed emotionally and 

he can’t verbalize his wants or needs. Thus, in her opinion:

It would be very difficult and traumatic for them to be away from their mother 

at night. At this—at the age that they have, and being that they are not at

their development, because they cannot communicate verbally, and 

because they are not able to convey their emotions, or their needs or their 

wants.

Father argues that he had been granted unsupervised, overnight visits with the children 

in the original divorce decree. The trial court had also granted Father unsupervised 

overnight visits in a temporary order signed on May 8, 2018. Mother maintained that 

overnight visits with Father were not in the best interests of the children because 

Quilantan-Diaz had instigated a CPS investigation against Father. Quilantan felt 

compelled to file a CPS report because after spending the night with Father on one 
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occasion, K.L.M. put a banana in her panties and exclaimed, “now I look like daddy.” 

However, the CPS letter indicated that the purported allegations of sexual abuse had 

been ruled out. The trial court also received a psychological evaluation of Father from 

Richard Theis, which stated:

[Father] voluntarily submitted to a psychological evaluation with Modern 

View Clinical and Forensic Services in 2016, for the purposes of displaying 

that he was emotionally and mentally capable of taking care of his children. 

During the course of this evaluation, [Father] was interviewed twice and was 

studied at one of his visits with his children.

Modern View determined that [Father] was properly oriented, cooperative, 

and capable. His memory was determined to be intact, and he displayed no 

evidence of delusions or paranoia. He was found to not display any 

symptoms of mental distress that would negatively impact his ability to 

parent his children, and the evaluation indicated no risk facts to himself or 

his children. It noted that, while he does have mental health diagnoses, 

they are well managed, and he has taken proper responsibility for their 

management.

In addition, [Father] was seen with his children. The examiner, Norma 

Villanueva, recorded that [Father] provided support to both of his children 

equally and has properly “child-proofed” his house. In addition, she 

reported that both of [Father’s] children are positively bonded with him and 

seek him out without reservation. She saw no evidence of coaching or 

coercion by [Father].

Modern View recommended that he “be allowed full access to his children 

without reservation,” and begin standard visitation. It found that, while 

several risk factors were present in the past, [Father] has adequately 

litigated [sic] them, and reported “Mr. Father and his lifestyle do not pose 

any risk for his young children.” It recommended that [Mother] and [Father]

form a positive co-parenting bond, particularly because the children’s youth 

makes the formation of proper parental bonds crucial.

Given the evidence in the record, the trial court possessed “sufficient evidence 

upon which to exercise its discretion.” In re H.N.T., 367 S.W.3d at 903. Although there 

was some evidence that it would be “traumatic” for the children to be separated from their 

mother, there was also evidence that it was in the children’s best interests to grant Father 
13

overnight, unsupervised visits. Therefore, we conclude the trial court did not abuse its 

discretion in granting Father unsupervised overnight visitation with his children. We 

overrule Mother’s third issue.

III. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA

Justice

Delivered and filed the

23rd day of January, 2020.