NUMBER 13-14-00032-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

IN THE INTEREST OF M.K.T. AND B.S.T., MINOR CHILDREN

 

On appeal from the 52nd District Court 

of Coryell County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Longoria 

Memorandum Opinion by Justice Rodriguez

 Appellant J.T., the father of M.K.T. and B.S.T., appeals from an order modifying the 

geographical restriction on his children’s primary residence.1 See TEX. FAM. CODE ANN.

§ 156.101(a)(1) (West, Westlaw through 2015 R.S.). By five issues, J.T. claims that the 

trial court abused its discretion in modifying the order because there had not been a 

 

1 We use initials for the family members to protect the child's identity. See TEX. R. APP. P. 9.8; 

TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2015 R.S.).
2

material and substantial change and the modification was not in the children’s best 

interest. We reverse and remand.2

I. BACKGROUND3

M.K.T. was born January 26, 2006, and B.S.T. was born December 3, 2007. 

Proceeding pro se, the parents, J.T. and C.T., divorced in Coryell County, Texas on July 

8, 2010. The final decree named the parents as joint managing conservators of the 

children and, among other things, granted C.T., the mother, “[t]he exclusive right to 

establish the primary residence of the children within the following geographic area: 

Coryell County.”

In April 2013, C.T. filed a petition to modify the parent-child relationship, and on 

May 24, 2013, C.T. amended her petition, requesting the following: (1) the removal of 

the geographic restriction to Coryell County; (2) the modification of the possession order 

to a standard possession order; and (3) an increase in child support. In support of her 

geographical modification request, C.T. claimed that “[t]he circumstances of the children, 

a conservator, or other party affected by the order to be modified have materially and

substantially changed since the date of rendition of the order to be modified” and that the 

modification “is in the best interest of the children.”

 

2 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to 

an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw 

through 2015 R.S.).

3 Following the withdrawal of her appellate counsel, C.T., the children’s mother, proceeded pro se. 

She has not filed a brief to assist us in the resolution of this matter. Without an appellee’s brief, we will 

accept as true the facts J.T. presents if they are supported by the record. See TEX. R. APP. P. 38.1(g).
3

In response, J.T. filed a counter-petition denying that there had “been any material 

and substantial change in circumstances since the date of divorce.” He claimed that 

“[n]o change ha[d] occurred in anyone’s situation.” In support of his assertion, J.T. set 

out that he “liv[ed] in the same house” and that C.T. had “the same job. Neither ha[d] 

remarried. The children attend[ed] the same school.”4 In the alternative, should the trial 

court find a material and substantial change of circumstances, J.T. requested that the trial 

court appoint him “conservator with the right to establish the children’s primary residence,”

award C.T. “possession of the children pursuant to a [s]tandard [p]ossession [o]rder,” and 

order C.T. to pay child support according to the family code guidelines. J.T. asserted 

that these modifications would be in the best interest of the children.

At the hearing on the petition to modify, C.T. testified, in relevant part, that she 

“would like to move at least 60 miles” and that the furthest she would want to go was “75 

miles away” in order to “better her own position.” When asked “what would you say the 

significant change has been that you need the ability to move now?”, C.T. responded, 

“The prices of everything is rising. I’m stuck at the same rate. There is no 

advancement. I have been applying. Everything is from Temple on to Georgetown and 

Round Rock.” C.T. agreed that she thought that she had exhausted her ability to move 

forward in Coryell County. C.T. also explained she had found a job in Georgetown and 

one in Round Rock that had full benefits. And she had “recently [been] offered an eBay 

job working at one of their offices in north Austin,” a job that started at $14.00 an hour 

 

4 J.T. established these facts at the hearing on C.T.’s petition to modify. The testimony also 

revealed issues related to J.T.’s health that had not changed since the date of the divorce decree.
4

with full benefits. According to C.T., members of her family lived “in the Austin, Round 

Rock area and Pflugerville.”5 She agreed that she was “not seeking to move out of the 

State of Texas” or “out of the country” and that she would be “okay with a simple 

geographical restriction in Texas.” C.T. also agreed, “at most or even at least . . . a 

hundred miles would allow [her] to take these [job] opportunities” and “would . . . allow 

[her] to be around [her] family” and “provide a better school system for [her] children.”

The trial court took the matter under advisement and, on December 9, 2013, 

entered its written order, granting a modification and imposing a geographic restriction to 

Coryell and adjoining counties, a restriction J.T. claims no one requested. By ordering 

the modification of the geographical restriction, the order impliedly found that a material 

and substantial change had occurred and that the modification was in the children’s best 

interest. The trial court denied all other requested relief.

On December 9, 2013, the trial court filed findings of fact and conclusions of law 

that had been requested by J.T. The court began its findings and conclusions by 

repeating the procedural history of the case. The trial court explained that it “considered 

the following facts in determining the material and substantial change and the best 

interest of the children”:

the Petitioner's testimony regarding her current employment, her 

employment opportunities, and the effect it has had on her, the Respondent, 

and the children; the Petitioner's testimony of the educational, health, and 

leisure opportunities afforded the children by lifting the restriction; both 

parties' testimony regarding the Respondent's gun possession and use 

currently versus prior to the Divorce; the Petitioner's testimony of the effects 

on the Respondent's visitation, communication, and access with the 

children if the Court lifted the geographic restriction; the Petitioner's 

 

5 C.T.’s brother, Michael Reppert, testified that he lived in Temple, Texas, but had not seen the 

children “for a while.”
5

testimony of the parties' past ability to share duties and responsibilities of 

the children, and both parties' testimony of the Respondent's involvement

with the children.

After setting out relevant propositions of law, the trial court concluded that “[b]ased on the 

credible evidence presented and the application of the law, the Court finds the children's 

primary residence should be modified to Coryell and contiguous counties.”

6

 Based on 

this language, the trial court again impliedly found that a material and substantial change 

had occurred since the date of the rendition of the divorce decree in 2010. It also 

impliedly found that the modification was in the best interest of the children.

On December 20, 2013, the trial court made additional findings, some of which 

were proposed by J.T., some by C.T. The following findings are those relevant to our 

review of the trial court’s geographic modification:

[J.T.] resides in the same home that he lived in at the time of the divorce.

[C.T.] has the same job she had at the time of the divorce.

The children attend the same school they have attended since prior to the 

divorce.

[J.T.] was medically retired from the US Army at the time of the divorce and 

continues to be so.

. . . .

Neither [C.T.] nor [J.T.] have remarried since their divorce from each other.

. . . .

[C.T.] has provided a safe and stable environment for the children since the 

divorce.

 

6 The contiguous or adjoining counties to Coryell County include Hamilton, Bosque, Lampasas, 

McLennan, and Bell.
6

. . . .

The requested modification of the geographic restriction is fair and equitable 

to both [J.T.] and [C.T].

The modification would place a minimal if any burden on [C.T.] and [J.T.]'s 

ability to communicate and share in the care of their children.

The modification would still allow [J.T.] to visit his children on a daily basis 

if necessary.

The modification would allow [C.T.] a significant ability to expand her 

employment opportunities.

The employment opportunities offered outside of the previous geographic 

restriction would significantly increase [C.T.]'s ability to provide for the 

children.

Affording [C.T.] better work hours and opportunities would be in the best 

interest of the children.

The modification would allow the children to be closer to their extended 

family and friends.

. . . .

[J.T.] does not have any close family in Coryell County or any contiguous 

counties.

. . . .

The modification would not disrupt [C.T.] and [J.T.]'s ability to communicate 

significant problems or emergencies.

There was significant evidence presented that the children's after-school 

and extra-curricular activities would not be affected by the modification of 

geographic restriction.

The modification would allow the children access to a larger variety of extracurricular and after-school activities.

. . . .

[C.T.] is forced to work longer hours at lower paying jobs as a result of the 
7

previous geographic restrictions.

The modification would allow [C.T.] more time with her children as a result 

of the better opportunities for an expanded geographic restriction.

. . . .

[J.T.] has history of treatment for emotional disorders, including Post 

Traumatic Stress Disorder.

[J.T.] has a history of “blackouts”.

[J.T.] has a machine for Sleep Apnea that he must wear while he sleeps.

[J.T.] continues to suffer from physical disabilities that prevent full range of 

movement.[

7

]

This appeal followed.

II. DISCUSSION

By his first two issues, J.T. challenges the trial court’s implied finding that a material 

and substantial change had occurred since the 2010 final decree of divorce, warranting 

a modification of the geographical restriction. In his fourth issue, J.T. asserts that the 

trial court abused its discretion when it created a new geographical restriction that neither 

party pleaded or requested. And J.T.’s third and fifth issues complain of the trial court’s 

finding that the geographical restriction imposed was in the children’s best interest.

A. Standard of Review

We reverse a trial court's modification order only when it appears from the record 

as a whole that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 

449, 451 (Tex. 1982); In re C.R.O., 96 S.W.3d 442, 446 (Tex. App.—Amarillo 2002, pet. 

 

7 The trial court also made a number of findings relevant only to the court’s best-interest 

determination, a determination we do not reach because of our disposition of J.T.’s first two issues. See 

id. at R. 47.1.
8

denied). “Per that standard, we cannot interfere with the decision so long as some 

evidence of a substantive and probative character supports it and the ruling comports 

with the law.” In re C.M.G., 339 S.W.3d 317, 319 (Tex. App.—Amarillo 2011, no pet.)

(citing In re C.R.O., 96 S.W.3d at 447). In other words, we must inquire: (1) whether 

the trial court had sufficient information upon which to exercise its discretion; and (2) 

whether the trial court erred in its application of discretion. See In re T.D.C., 91 S.W.3d 

865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh'g); see also In re T.W.E., 

217 S.W.3d 557, 559 (Tex. App.—San Antonio 2006, no pet.) (“An appellant challenging 

the sufficiency of the evidence must show that the evidence or lack thereof, caused the 

court to act without reference to any guiding rules or principles or to act arbitrarily or

unreasonably.”). Under this abuse-of-discretion review, sufficiency of the evidence is 

only a relevant factor for asserting error, not an independent ground. See In re T.D.C., 

91 S.W.3d at 872. The sufficiency review in this case is related to the first inquiry—

whether the trial court had sufficient information upon which to exercise its discretion. 

See id.

“Findings of fact entered in a case tried to the court have the same force and dignity 

as a jury's verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d 791, 

794 (Tex. 1991); see In re Davis, 30 S.W.3d 609, 613 (Tex. App.—Texarkana 2000, no

pet.). “The trial court's findings of fact are reviewable for legal (and factual) sufficiency 

of the evidence by the same standards as applied in reviewing the legal (and factual)

sufficiency of the evidence supporting a jury's finding.” Anderson, 806 S.W.2d at 794; 

see In re Davis, 30 S.W.3d at 613.
9

In conducting a legal sufficiency review, we consider the evidence in the light most 

favorable to the trial court's judgment, disregarding all evidence and inferences to the 

contrary unless a reasonable factfinder could not do so. City of Keller v. Wilson, 168 

S.W.3d 802, 810–11 (Tex. 2005). Anything more than a scintilla of probative evidence 

is legally sufficient to support the trial court's finding. In re T.D.C., 91 S.W.3d at 872. If 

we determine that there was sufficient evidence to support a decision on modification, 

then we must address the second inquiry and determine whether the trial court made a 

reasonable decision. Id.

B. Applicable Law

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

significant hurdles before a conservatorship order may be modified. In re H.N.T., 367 

S.W.3d 901, 903–05 (Tex. App.—Dallas 2012, no pet.). One attempting to modify an 

order establishing conservatorship, possession, and access to a child must show that (1) 

there has been a material and substantial change in circumstances since the rendition of 

the existing order, and (2) the modification would be in the best interest of the child. TEX.

FAM. CODE ANN. § 156.101(a). Here, J.T. disputes both prongs.

“To prove a material change of circumstance has occurred, a movant must show 

the conditions as they existed at the time of entry of the prior order.” In re C.C.J., 244 

S.W.3d 911, 919 (Tex. App.—Dallas 2008, no pet.) (citing In re T.W.E., 217 S.W.3d at 

559). “Once such conditions have been established, the movant must show what 

material changes have occurred in the intervening period.” Id. (citing In re T.W.E., 217 

S.W.3d at 559); see In re A.L.E., 279 S.W.3d 424, 428–29 (Tex. App.—Houston [14th 
10

Dist.] 2009, no pet.) (identifying a non-comprehensive list of material changes, as 

described by other courts, to 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 other words, “the record must contain both 

historical and current evidence of the relevant circumstances,” otherwise “the court has 

nothing to compare and cannot determine whether a change has occurred.” Zeifman v. 

Michels, 212 S.W.3d 582, 594 & n.1 (Tex. App.—Austin 2006, pet. denied). In this case, 

we examine the evidence to determine what conditions existed on July 8, 2010, the date 

of the order sought to be modified, and what material changes occurred in the intervening 

period. See In re C.C.J., 244 S.W.3d at 919; Zeifman, 212 S.W.3d at 594 & n.1. When 

the moving party, who has the burden of showing a material and substantial change in 

circumstances, has not met that burden, the trial court must deny the motion. See In re 

T.W.E., 217 S.W.3d at 559.

Regarding the second prong—whether the modification would be in the best 

interest of the children, see TEX. FAM. CODE ANN. § 156.101(a), the family code is silent 

as to the specific factors the trial court should consider when determining whether a 

geographic restriction on residency is in the best interest of a child. In Lenz v. Lenz, the 

Texas Supreme Court provided a variety of factors relevant to the determination of 

whether a geographic restriction is in the best interest of the child, including: (1) the 

reasons for and against the move, including the parents' good faith motives in requesting 

or opposing it; (2) health, education, and leisure opportunities afforded by the move; (3) 
11

the degree of economic, emotional, and educational enhancement for the custodial parent 

and child; (4) the effect on extended family relationships; (5) accommodation of the child's 

special needs or talents; (6) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child; (7) the 

possibility of a visitation schedule allowing the continuation of a meaningful relationship 

between the non-custodial parent and child; and (8) the ability of the non-custodial parent 

to relocate. 79 S.W.3d 10, 15–16 (Tex. 2002). In doing so, the supreme court 

recognized that cases such as these are intensely fact-driven and therefore involve the 

balancing of these numerous factors, as opposed to formulaic tests. Id.

C. Challenge to Modification of the Geographical Restriction

1. Request to Extend Restriction to Adjoining Counties Tried by Consent

By his fourth issue, which we address first, J.T. asserts that the trial court abused 

its discretion in ordering a new geographical restriction to include Coryell and adjoining 

counties because C.T. did not request such a modification. We agree that C.T.’s 

petition requested only that the trial court lift the geographic restriction. C.T. did not 

specifically request a restriction to Coryell and adjoining counties. However, at the 

hearing on her motion to modify, C.T. testified that she sought a variety of modifications. 

She requested that the trial court lift the geographic restriction; she asked that the 

restriction simply be limited to the State of Texas; and, she asked for a restriction of 

seventy-five to one hundred miles from Coryell County. Based on this testimony, C.T. 

requested, among other things, that the trial court broaden the restriction to include 

counties within a hundred-mile radius of Coryell County. This would include counties 
12

adjacent to Coryell County. J.T. did not object to this testimony. So we conclude that, 

although not in C.T.’s petition, this modification was requested and tried by consent. Cf. 

Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.) 

(concluding that the record did not reflect that the geographic-restriction issue was tried 

by consent.). We overrule J.T.’s fourth issue.

2. Material and Substantial Change

By his first and second issues, J.T. asserts that the evidence did not establish that 

a material and substantial change supported the trial court’s modified restriction. We 

agree.

At the hearing on her modification request, C.T. focused her testimony on moving 

with her children to Travis or Williamson County. She testified about job opportunities in 

those counties and about activities available to her children there. C.T. agreed that she 

was seeking to lift the geographical restriction so that she could better the life of her

children and promote her own well-being and her children’s benefits. C.T. testified 

generally that she had “been offered several jobs this past year alone that [she had] 

turned down” and that “[e]verything [was] from Temple on to Georgetown and Round 

Rock.” According to C.T., the job opportunities, including one offer from an eBay office, 

came from the Georgetown, Round Rock, or Austin areas—cities located in Williamson

County or Travis County, not in Coryell or its adjoining counties. But this testimony 

relates only to current circumstances. Absent is testimony regarding conditions that 

existed in July 2010. And the record must contain historical evidence of relevant 

circumstances for comparison in order to determine whether a change has occurred. 
13

See Zeifman, 212 S.W.3d at 594 & n.1.

From our review of the record, the only evidence suggesting that conditions had 

changed since 2010 were C.T.’s responses that “prices [are] rising,” she is “stuck at the 

same rate,” and “[t]here is no advancement,” and her agreement that she thought she 

had exhausted her ability to move forward in Coryell County. But this is not historical 

evidence upon which a trial court can make a determination that a material and substantial 

change in circumstances has occurred. See In re T.D.C., 91 S.W.3d at 872. 

Moreover, our review of the trial court’s December 9, 2013 findings reveals only 

the following factual basis for its determination that a material and substantial change of 

circumstances occurred: C.T.’s “testimony regarding her current employment, her 

employment opportunities.” We find no mention of historical facts from which it could 

have made that determination.

We reach the same conclusion after reviewing the trial court’s December 20, 2013 

additional findings. The majority of its findings support the court’s best-interest 

determination. For example, the trial court found the geographical modification would 

allow C.T. to expand her employment opportunities, afford her better work hours, and 

increase her ability to provide for her children. In addition, the court found that “[t]he 

modification would allow the children to be closer to their extended family and friends”

and that J.T. could still visit his children daily if necessary, communicate with them and 

share in their care. There are also a number of findings that show circumstances have 

not changed. For example, J.T. resides in the same home. C.T. has the same job. 

The children attend the same school. J.T. remains medically retired from the Army with 
14

the same health concerns. Neither parent has remarried. C.T. has provided a safe and 

stable environment for the children since the divorce. Only the following finding appears 

to address a material and substantial change: “[C.T.] is forced to work longer hours at 

lower paying jobs as a result of the previous geographic restrictions.” And even for this 

finding, the record offers no historical fact or even circumstantial evidence that allows for 

a comparison of the “longer hours” and lower-paying jobs. See In re T.D.C., 91 S.W.3d 

at 872; see also In re A.L.E., 279 S.W.3d at 429 (explaining that because the law does 

not prescribe any particular method for a showing of changed circumstances, 

circumstantial evidence may be used to establish that change, and concluding that, even 

in the absence of direct evidence, “[t]he record is replete with evidence that [the mother’s] 

substance-abuse problems have significantly, and negatively, affected A.L.E. since she

came to reside with her mother). Instead, the facts that support this finding appear to be 

the job opportunities near Austin that existed at the time of the modification request.

Because there is no evidence of conditions as they existed on July 8, 2010, the 

trial court had nothing with which to compare the present circumstances. See In re 

C.C.J., 244 S.W.3d at 919. So the trial court could not determine whether a change

occurred in the intervening period. See id.; Zeifman, 212 S.W.3d at 594 & n.1. 

Therefore, reviewing the record as a whole, see Gillespie, 644 S.W.2d at 449, we 

conclude that the trial court abused its discretion in ordering the modification of the 

children’s geographical restriction because it did not have sufficient information upon 

which to exercise its discretion. See Zeifman, 212 S.W.3d at 594 & n.1; In re T.D.C., 91 

S.W.3d at 872; see also Downer, 701 S.W.2d at 241. C.T., who had the burden of 
15

showing the occurrence of a material and substantial change in circumstances, did not 

meet her burden, and the trial court should have denied her motion. See Zeifman, 212 

S.W.3d at 589. We sustain J.T.’s first and second issues.8

III. CONCLUSION

We reverse and remand for proceedings consistent with this opinion, including the 

entry of an order denying C.T.’s proposed modification of the geographical restriction.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 24th

day of September, 2015.

 

8 Because this analysis is dispositive of this appeal, we need not address J.T.’s remaining issues,

which challenge the trial court’s best-interest finding. See id. R. 47.1; TEX. FAM. CODE ANN. § 156.101(a) 

(West, Westlaw through 2015 R.S.).