Opinion filed March 27, 2014

In The

Eleventh Court of Appeals ___________

No. 11-12-00155-CV

___________

IN THE INTEREST OF K.B.K, M.A.K., AND J.C.K., CHILDREN

On Appeal from the County Court at Law

Midland County, Texas

Trial Court Cause No. FM-49,310

M E M O R A N D U M O P I N I O N

This appeal involves a modification request by Donald Kirk Kimbrell to 

have his three children, from his marriage to Cindy Burnside (formerly Cindy 

Kimbrell), live with him in Texas rather than with Cindy in Colorado. The 

children, K.B.K., M.A.K., and J.C.K., originally lived with Cindy in Midland, 

Texas, following Donald and Cindy’s divorce, but Cindy later moved the children 

to Colorado Springs, Colorado. Donald filed a motion seeking an order to have the 

children return to Midland to live with him. The trial court entered an order that 

K.B.K. and M.A.K. reside with Donald in Midland, but that J.C.K. continue to 
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reside with Cindy in Colorado Springs. Donald appeals that part of the order that 

provided J.C.K. would continue to reside with Cindy in Colorado. We affirm.

I. The Evidence at Final Hearing

The record showed that Donald and Cindy were divorced on July 30, 2009, 

but the decree was not signed until April 23, 2010. In the decree of divorce, the 

trial court appointed Donald and Cindy as joint managing conservators and ordered 

that Cindy could decide the children’s primary residence. Cindy and the children 

initially remained in Midland, Texas, at the former marital residence. Cindy 

worked as a substitute teacher and received child support payments from Donald. 

Donald also worked in Midland and had frequent contact with the children and 

took them during nearly all of his visitation periods.

During the pendency of her divorce, Cindy had communicated with 

Lieutenant Colonel Jeff Burnside, a United States Air Force officer stationed in 

Colorado Springs, Colorado. Lieutenant Colonel Burnside was an old high school

boyfriend, who also was going through a divorce. Cindy and Lieutenant Colonel 

Burnside communicated frequently through Facebook, a webcam, and other 

means; Lieutenant Colonel Burnside first visited Cindy in Midland in September 

2009. Although the divorce decree specified that neither Donald nor Cindy would 

have members of the opposite sex stay in their homes when they had the children, 

Cindy had Lieutenant Colonel Burnside stay overnight in her home when he 

visited in September 2009. Soon, Cindy and Lieutenant Colonel Burnside saw 

each other every two weeks with some visits in Colorado Springs, some in 

Midland and Amarillo, and some in other places. 

Cindy continued to see Lieutenant Colonel Burnside throughout 2009 and 

2010, and she moved to Colorado Springs, Colorado, in June 2010. A month later,

Cindy moved the children to Colorado after they completed their summer visitation 

with Donald. When Cindy moved to Colorado with the children, she moved into a 
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home at 3720 Birdie Court, Colorado Springs, Colorado. Donald was a frequent 

visitor to Colorado and often stayed several days to visit with his children, take 

them to school, and spend time with them. Donald said that Cindy once let him 

stay at her house to visit with the children, while she stayed at Lieutenant Colonel 

Burnside’s house. Donald testified that the distance between Colorado Springs and 

Midland required frequent trips and created visitation difficulties and that the 

children did not appear to enjoy living in Colorado. Donald also testified about his 

perceptions that the children were not adjusting well to the new residence and 

schools, and that prompted him to request the court modify the child custody

arrangements to have the children return to Midland to live.

Cindy married Lieutenant Colonel Burnside in April 2011, and the final 

hearing took place in July 2011. The trial court held that there had been a material 

and substantial change in circumstances and that it was in the best interest of two 

of his children, K.B.K. and M.A.K., to return to Midland, Texas, and live with 

their father, who would have the right to designate their primary residence. But the 

trial court held it was in the best interest of J.C.K. to remain in Colorado Springs, 

Colorado, with his mother, Cindy, who would retain the right to designate his 

primary residence.

In explaining its decision, the trial court commented in open court that 

Cindy’s failure to adhere to the “morals” clause of the divorce decree and her 

behavior regarding a change of address and exchange of medical bills were 

troubling. The trial court also commented that Donald may have created angst and 

consternation on Cindy’s new family with his inflexibility in visitation 

arrangements and demands for strict adherence to details in the decree. The trial 

court stated that it expected Cindy and Donald to treat each other with respect and 

to follow the court’s orders so the children could move forward. The trial court 

also commented that the children seemed to have adjusted to the new family 
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arrangements but that the frequent and unnecessary drama by the parents during 

visitation exchanges was not in the children’s best interest. The trial court noted 

that Lieutenant Colonel Burnside had primary custody of his daughter and 

interviewed K.B.K. and M.A.K. on their desired living arrangements.

The trial court noted that no evidence was provided on J.C.K. and that it

could not interview J.C.K. Although the trial court noted it was opposed to 

splitting up siblings, the trial court thought that, in the best interest of all of the 

children, K.B.K. and M.A.K. should live in Texas with their father and that J.C.K.

should remain with his mother in Colorado. The trial court adjusted child support 

to reflect the new arrangements and ordered Donald to pay $749 a month for 

J.C.K. and Cindy to pay $200 a month for K.B.K. and M.A.K. The trial court also 

ordered Donald to pay for the health insurance coverage of all three children. The 

trial court noted that the parties were agreed on each parent having one weekend a 

month for visitation with the children and that the children will have two weekends 

a month with no travel. The trial court entered its order modifying the parent-child 

relationship on March 9, 2012, and issued findings of fact and conclusions of law 

on May 1, 2012. Donald does not appeal the trial court’s orders on child support 

or his wife’s visitation with her daughters, but has appealed the trial court’s split 

custody order that had J.C.K. remain with his mother in Colorado.

II. Issue Presented

Donald contends that the trial court abused its discretion when it modified 

the custody provisions of the divorce decree and ordered that K.B.K. and M.A.K. 

would live with him in Midland, Texas, but that J.C.K. would reside with Cindy in 

Colorado Springs, Colorado. Donald argues that the trial court had no evidence or 

clear and compelling reason that supported its decision on the living arrangements 

for J.C.K. 
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III. Standard of Review

We review a trial court’s decision to modify conservatorship under an abuse 

of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); 

Child v. Leverton, 210 S.W.3d 694, 695 (Tex. App.—Eastland 2006, no pet.). A 

trial court abuses its discretion if it acts arbitrarily and unreasonably or without 

regard to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 242 (Tex. 1985). The trial court has wide discretion when it 

determines issues involving custody. See Peǹa v. Peǹa, 8 S.W.3d 639, 639 (Tex. 

1999); Gillespie, 644 S.W.2d at 451. The court’s primary consideration always is 

the best interest of the child. Child, 210 S.W.3d at 697.

We apply an abuse of discretion standard to a modification suit, and because

the traditional sufficiency standards of review overlap the abuse of discretion 

standard, we apply a hybrid analysis to the issue asserted by Donald in this case. 

See Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.—Austin 2002, no pet.); In 

re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). 

Legal and factual sufficiency challenges to the evidence are not independent 

grounds of error but are relevant factors to consider in determining whether the 

trial court abused its discretion, and we use a two-pronged inquiry: (1) whether the 

trial court had sufficient information on which to exercise its discretion and (2) 

whether the trial court erred in its application of discretion. Child, 210 S.W.3d at 

696. Although traditional sufficiency review focuses the initial inquiry, we also 

determine, based on the evidence, if the court made a reasonable decision. Id.

When we analyze the legal sufficiency of the evidence, we consider the 

evidence in the light most favorable to the verdict and indulge every reasonable 

inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex.

2005). If the evidence would permit reasonable and fair-minded people to reach 
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the verdict under review, then the evidence is legally sufficient. Id. at 827–28. On 

a no evidence challenge, we may sustain such a challenge only if:

(1) the record discloses a complete absence of evidence of a vital fact, 

(2) the court is barred by rules of law or of evidence from giving weight 

to the only evidence offered to prove a vital fact, 

(3) the only evidence offered to prove a vital fact is no more than a mere 

scintilla, or 

(4) the evidence conclusively establishes the opposite of a vital fact. 

Id. at 810. 

When we analyze the factual sufficiency of the evidence, we consider and 

weigh all of the evidence and set aside the verdict only if it is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. 

Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661 

(Tex. 1951).

IV. Discussion and Analysis

Donald contends that the trial court abused its discretion when it modified 

the custody provisions of the divorce decree and ordered that K.B.K. and M.A.K. 

would live with him in Midland, Texas, but ordered that J.C.K. would remain with 

Cindy in Colorado Springs, Colorado. Donald argues there were no clear and 

compelling reasons to separate the siblings and no evidence to support split 

custody.

Section 156.101 of the Texas Family Code allows a court to “modify an 

order that provides for the appointment of a conservator of a child, that provides 

the terms and conditions of conservatorship, or that provides for the possession of 

or access to a child if modification would be in the best interest of the child” and if 

“the circumstances of the child, a conservator, or other party affected by the order 
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have materially and substantially changed” since the date of the rendition of the 

order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West Supp. 2013). 

Section 153.251 of the Texas Family Code, titled “Policy and General Application 

of Guidelines,” states a general preference, based on public policy, that “all 

children in a family . . . be together during periods of possession.” Id.

§ 153.251(c) (West 2008). The primary consideration of the court in deciding 

possession is the best interest of the child. Id. § 153.002.

The Code contains no requirement that a party show or trial court find “clear 

and compelling reasons” for separating children during periods of possession. See

Gardner v. Gardner, 229 S.W.3d 747, 754 (Tex. App.—San Antonio 2007, no 

pet.). The policy favoring keeping children together during periods of possession 

is simply a factor the trial court considers in deciding what is in the child’s best 

interest. See FAM. § 153.251(c); Gardner, 229 S.W.3d at 754 (citing In re K.L.R.,

162 S.W.3d 291, 306 (Tex. App.—Tyler 2005, no pet.), and MacDonald v. 

MacDonald, 821 S.W.2d 458, 463 (Tex. App.—Houston [14th Dist.] 1992, no 

writ)). 

The trial court issued eighteen findings of fact and nine conclusions of law. 

The relevant findings of fact are as follows:

2. Subsequent to the divorce rendered on July 30, 2009, 

CindyBurnside remarried Jeff Burnside on April 22, 2011, and the 

couple moved to Colorado Springs, Colorado.

3. Jeff Burnside is a Lieutenant Colonel in the United States Air 

Force and has custody of his 8-year-old daughter, Isabella.

4. Donald Kirk Kimberly is in a relationship with Crystal 

Wright, who has custody of 2 children (one boy and one girl, age[s] 

16 and 13[,] respectively).
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5. Donald Kirk Kimbrell utilized most of the visitation in 

accordance with a prior Standard Possession Order[,] which involved 

numerous trips to Colorado.

6. Contrary to some of the live testimony in court and due 

largely to discussions held with children in chambers[,] it appears that 

all 3 children have adjusted well to the new relationships of both 

father and mother in Midland and Colorado[, respectively]. 

7. The son, [J.C.K.] has bonded well with both his stepfather, 

Jeff Burnside, and his [Burnside’s] daughter, Isabella.

8. [J.C.K.] has formed a strong attachment to his new pet puppy 

in Colorado and has adjusted well to the change in residence from 

Midland, Texas.

9. The 2 daughters, [K.B.K.] and [M.A.K.] continue to have 

strong ties with family and friends in Midland, Texas, and it is their 

sincere desire to live in Midland with their father as long as they can 

continue to have visitation with their mother.

10. Cindy Burnside has had technical violations of the Decree 

of Divorce with respect to the morals provisions, medical billings, 

required forwarding addresses, and visitation periods on certain 

designated holidays.

11. It would appear to the Court that Cindy Burnside has 

allowed more liberal visitation with the children’s father as opposed to 

Donald Kirk Kimbrell’s rigid adherence to the Standard [Possession] 

Order in the past.

12. Cindy Burnside has discontinued her use of prescribed 

medications after her move to Colorado and her marriage to Jeff 

Burnside. 

13. It is in the best interest of the children that Donald Kirk

Kimbrell and Cindy Burnside be appointed joint managing 

conservators of the children and that Donald Kurt (sic) Kimbrell have 

the right to designate the daughters’[,] [K.B.K.] and [M.A.K.’s,] 
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primary residence. Cindy Burnside shall have the right to designate 

[J.C.K.’s] primary residence.

14. The periods of possession vary from the Standard 

Possession Order for the following reasons:

(a) The presumption of keeping the siblings 

together is overcome by the sincere desire that the 

daughters have with respect to their return to Midland 

combined with a positive relationship made by the son 

with respect to the stepfather, his [stepfather’s] daughter, 

and the son’s pet in Colorado.

(b) The parties live approximately 10 to 12 hours 

driving time from each other leaving very little time for 

visitation on weekends.

(c) The split custody arrangement necessitates 

monthly alternative one-weekend visitation by the 

parents in order to give both sets of children some 

stability and prevent them from some form of travel on 

every weekend during the month.

(d) The arrangement within the judgment will 

allow each parent at least one protected weekend with all 

children and further allow the children at least two 

weekends without travel.

(e) The deviation from the Standard Possession 

Order also allows and encourages visitation by all 3 

siblings together.

The relevant conclusions of law are as follows:

 1. The circumstances of all of the children and both parents 

affected by the prior Decree of Divorce have materially and 

substantially changed since the rendition of the divorce.

 2. Child support, possession and access should be modified as it 

is in the best interest of the children to do so.
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 3. Donald Kirk Kimbrell and Cindy Burnside (formerly Cindy 

Kimbrell) should be named joint managing conservators of the 

children with the rights and duties stated in the judgment, and Donald 

Kirk Kimbrell should be named as the conservator with the right to 

designate both daughters’ primary residence, and Cindy Burnside 

should be named as the conservator with the right to designate the 

son’s primary residence.

 4. There is clear and convincing evidence that split custody 

involving a split of the siblings between the parents would be in the 

best interest of the children and Donald Kirk Kimbrell is entitled to 

periods of possession and access as stated in the judgment and Cindy 

Burnside is entitled to possession and access as stated in the judgment.

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

jury’s verdict upon jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994). The trial court’s findings of fact are reviewable for legal and factual 

sufficiency of the evidence using the same standards applied in reviewing the 

sufficiency of the evidence underlying jury findings. Id.

A party may not challenge conclusions of law for factual sufficiency, but we 

may review conclusions of law to determine their correctness based upon the facts. 

Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161, 167 (Tex. App.—Fort

Worth 2007, pet. denied). We will uphold a conclusion of law if the judgment can 

be supported on any legal theory supported by the evidence. Id. at 167; Tex. Dep’t 

of Pub. Safety v. Stockton, 53 S.W.3d 421, 423 (Tex. App.—San Antonio 2001, 

pet. denied). We review conclusions of law de novo, and we will not reverse 

unless they are clearly erroneous as a matter of law. BMC Software Belgium, 

N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Rischon Dev. Corp., 242 

S.W.3d at 167.

The trial court appointed Donald and Cindy as joint managing conservators 

and split the custody of the children between them, in large part, due to the sincere 
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desire of the two daughters to live in Midland with their natural father. In a joint 

managing conservatorship, the trial court must designate which managing 

conservator will have the exclusive right to designate the child’s primary 

residence. FAM. § 153.134(b)(1); Gardner, 229 S.W.3d at 753. The paramount 

consideration is the best interest of the child. FAM. § 153.002; Gardner, 229 

S.W.3d at 753; Albrecht v. Albrecht, 974 S.W.2d 262, 265 (Tex. App.—San 

Antonio 1998, no pet.).

Both Cindy and Donald presented evidence of the other’s faults and 

presented evidence they were devoted parents that loved their children and only 

wanted what was best for each of them. The trial court heard evidence of Cindy’s 

failure to adhere to several provisions of the divorce decree and Donald’s rigid 

application of the decree’s standard possession order. The trial court heard 

evidence that the children had some trouble with the new living arrangements, and

it interviewed both of the daughters and solicited their sincere desires about where 

they wanted to live. The trial court also heard evidence about the parents’

relationships with their children; the parents’ relationships with their new spouse or 

significant other and their children; and the children’s relationships with their new 

stepparents and stepsiblings.

The trial court heard evidence of the current and proposed living 

arrangements in Texas and Colorado and the current and proposed school

arrangements for the children. The trial court heard about J.C.K.’s attachment to 

his new puppy and his bond with his stepfather and heard from K.B.K. and M.A.K.

and others about the daughters’ friends and activities and their family roots and 

connections in Midland. Donald testified about the trips he took to visit his 

children in Colorado and be present in their lives there.

The trial court noted that, at the time of decree in 2009, everyone lived in 

Midland, Cindy was not married to Lieutenant Colonel Burnside, and Donald was 
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not in a relationship with Wright. The trial court learned about Lieutenant Colonel 

Burnside’s background and work and his custody of his daughter, Isabella. The 

trial court also heard about Wright’s custody of her two children. The trial court 

heard evidence on revising child support and visitation.

The trial court reviewed and weighed all of this evidence and noted the 

children were well-adjusted to the new familial relationships and that K.B.K. and 

M.A.K. sincerely wanted to return to Midland. The trial court noted it had not 

heard much information about J.C.K., but concluded he had adjusted well to home 

and school in Colorado, had bonded with his stepfather, and was very attached to 

his new puppy. The trial court, as factfinder, is the sole judge of the credibility of 

the witnesses and the weight to be given their testimony. See City of Keller, 168 

S.W.3d at 819. 

After reviewing the record, we conclude the trial court had sufficient 

information to exercise its discretion and did not abuse that discretion in finding it 

was in the children’s best interest that K.B.K. and M.A.K. live with their father in 

Midland and that J.C.K. remain with his mother in Colorado. See Gardner, 229 

S.W.3d at 753–54; see also Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.—

El Paso 2005, no pet.); In re Gonzalez, 993 S.W.2d 147, 155 (Tex. App.—San

Antonio 1999, no pet.) (holding abuse of discretion does not occur as long as some 

evidence of substantive and probative character exists to support trial court’s 

decision). We find that some evidence of substantive and probative character 

supports the trial court’s decision, and we overrule Appellant’s single issue.
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V. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE

March 27, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.