Affirm and Opinion Filed September 29, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01223-CV

IN THE INTEREST OF I.S., A CHILD

On Appeal from the 469th Judicial District Court

Collin County, Texas

Trial Court Cause No. 469-55837-2013

MEMORANDUM OPINION

Before Justices Osborne, Partida-Kipness, and Pedersen, III

Opinion by Justice Pedersen, III

This is an appeal from the trial court’s order (1) denying any and all relief 

requested by I.S.’s mother in her Second Amended Petition to Modify Parent Child 

Relationship and (2) denying her Application for Temporary and Permanent 

Injunctions (the “Order”). We affirm.

Background

I.S.’s parents (“Mother” and “Father”) resolved the termination of their 

relationship through a mediated settlement agreement, which became the basis for 

the trial court’s April 14, 2015 Agreed Final Order in Suit Affecting the Parent-Child 

Relationship (the “Agreed Order”). At all relevant times, Father has resided in 

Tennessee, and Mother has resided in Texas; I.S.’s primary residence is in Texas 
–2–

with Mother. I.S. is the parents’ only child. He was ten years old at the time of trial.

The Agreed Order named the parents his joint managing conservators. The Agreed 

Order also set forth an agreed schedule for access to and possession of I.S. For our 

purposes, the significant provisions included the following terms of possession for 

Father: every other weekend during the school year; every Spring Break; and I.S.’s 

entire summer vacation from school, except that Mother has the right to possession 

every other weekend during that time.

The Petition for Modification

On March 15, 2016, Mother filed her Petition in Suit to Modify Parent Child 

Relationship. Under the heading Modification of Conservatorship, Possession, and 

Access, she asserted:

The circumstances of the child, 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. There is severe 

conflict between the child’s parents escalating to the point that the 

parents can no longer reach shared decisions about the child and are 

unwilling to communicate.

Petitioner requests the Court to appoint a parenting facilitator to resolve

parental conflicts. This case is a high-conflict case. There is good cause 

for appointment of a parenting facilitator because there is severe 

conflict between the child’s parents, and the appointment would be in 

the best interest of the child.

Mother also filed an independent motion asking to have a parenting facilitator 

appointed; the trial court granted the motion, and both parents began sessions with 

Linda Threats, Ph.D.
–3–

Shortly after, Mother filed an amended petition in the modification 

proceeding. The amended petition included the above-quoted request for a parenting 

facilitator, and it added the following after the assertion that the parents could no 

longer reach shared decisions and were unwilling to communicate:

Consequently, the present order and summer possession schedule are 

unworkable and are not in the child’s best interest.

* * *

Petitioner requests that the Court modify the current summer 

possession schedule to a standard summer possession schedule under 

section 153.313 of the Texas Family Code. Specifically, Petitioner 

requests that Respondent designate his summer possession by April 1 

and if designated, be allowed to have possession of the child for fortytwo (42) consecutive days with two non-consecutive weekends allotted 

to be exercised [by] Petitioner if designated by April 15.

The requested modifications are in the best interest of the child.

This issue of summer possession dominated discovery and was a significant issue 

during trial. 

In addition, approximately a week before trial, and over Father’s objection, 

Mother amended her petition a final time, expanding her requested modifications to 

include, among a number of additional proposals, limiting Father during the school 

year to eighteen overnight periods of possession in DFW, alternating Spring Break 

possession, and requiring Father to submit to drug testing. 

The Non-Disclosure Agreement

Shortly after mediating the Agreed Order issues concerning I.S., the parties 

also entered into a Non-Disclosure, Non-Disparagement, and Confidentiality 
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Agreement (the “Non-Disclosure Agreement”). The parties agreed not to disclose 

confidential information about each other, significant others, or family members. 

Mother contended below that Father disclosed confidential information referenced 

in subsection (b) of the Non-Disclosure Agreement, which states:

[1] Private and confidential information which is not generally known 

to the public pertaining to the parties, family, friends, spouses, 

significant others or business associates, including without limitation 

the parties' health and medical information, business, financial and 

legal information, and information concerning the parties’ future 

relationships (and the existence thereof), professional and personal 

relationships, sexual matters, religious practices and beliefs, private 

residences (and the details thereof), private email addresses, Personal 

Identification Numbers, social security numbers and credit card 

information. [2] Without limiting the aforementioned, the parties agree 

that they will not publish any book or article, blog, make any post on 

the internet or in any form of social media, give any interview, appear 

in or on any media production or give information to the media wherein 

or whereby they disclose any Confidential Information. [3] The parties 

recognize that, as a general rule, any information regarding the other 

party to this Agreement and his or her respective family members, 

spouse, and/or significant other is private and confidential. [4] Even if 

any Confidential Information shall have been somehow disclosed in the 

public domain, the parties agree that they will not confirm or deny the 

existence of the Confidential Information in the matter or the truth or 

falsity of the disclosed Confidential Information and such disclosed 

Confidential Information shall remain subject to the terms of this 

Agreement.1

Mother’s allegations stem from publication online of an article on the website 

Radar Online that concerned Mother’s relationship with a celebrity. The first portion 

 

1

 Mother does not allege that Father disclosed tangible material (e.g., documents, emails, photographs) 

prohibited by subsection (a) of the Non-Disclosure Agreement or information related to their legal 

proceedings prohibited by subsection (c). We number the sentences in the quoted provision for reference 

in our discussion below.
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of the brief article includes quotes from Father that were obtained in a telephone 

interview.

2 The article suggests that Father gave a critical reason for why Mother

was dating the celebrity and that Father had “rip[ped]” her for that reason. The article 

also asserts that Father “wants nothing to do with” the celebrity and that he 

“revealed” that his relationship with Mother was “rocky.” The article goes on to 

repeat information about Mother’s relationship that had already been published on 

that site.

Proceedings Below

Mother called the parties’ parental facilitator, Dr. Threats, to testify first. She 

had worked with Mother in person and Father by telephone and Skype. She 

identified the parties’ relationship as “high conflict.” She presented lengthy “clinical 

assessments” of both parties, identifying positive, negative, and neutral 

characteristics of both parents. Counsel questioned her concerning Mother’s 

allegations against Father. A number of them, Dr. Threats asserted, had been 

discussed and were not concerns for her—she included Mother’s allegations 

concerning corporal punishment in this group. Among her concerns involving Father 

that remained were allegations of “extreme punishment” and a drug test that was 

positive for marijuana. She said that if she had a concern about Mother, based on the 

 

2

 Father quarrels with identifying the conversation as an interview and asserts that he did not know the 

caller was a reporter. Mother correctly responds that the Non-Disclosure Agreement, on its face, restricts 

disclosure of confidential information to any person, not only to media representatives. 
–6–

high level of conflict between the parents, it would be that she can be overprotective. 

When asked whether the parties had “a good handle” on what is in the best interest 

of I.S., Dr. Threats answered that Mother did, but that Father did “[n]ot at all times.” 

Mother testified concerning her allegations that Father refused to 

communicate with her and interfered with I.S.’s communications with her when the 

child was with Father. She described incidents of Father’s punishing I.S. that she 

objected to, and she expressed concern about lack of supervision and a regular 

bedtime when I.S. was with Father.3 She explained that she wanted the modification 

so that she could have time with I.S. outside of the school year and so that he could 

spend more extended time with her family.

Father responded to Mother’s allegations and described I.S.’s time with 

Father, his wife, and I.S.’s half-brothers as happy. He believed it would be harmful 

to I.S. to lose that extended time with his family. Father testified that the parties had 

purposefully structured their parenting plan: they agreed to Father’s extended 

visitation during I.S.’s vacations because Mother wanted to move with I.S. from 

Tennessee to Texas.

The parties introduced emails and texts that exemplified their communication

and communication issues. Father’s wife also testified concerning I.S.’s time with 

their blended family.

 

3

 We address specific examples of Mother’s allegations and Father’s responses below.
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The trial court issued a memorandum containing a single finding: “The Court 

finds that there has not been a material and substantial change to warrant a change 

in the possession and access schedule.” The trial court incorporated that finding into 

its Order, denied Mother’s request for modification, and denied all requested relief 

in her injunction application. Mother appeals.

Modification of the Agreed Order

In her first issue, Mother argues the trial court erroneously determined that 

there had not been a material and substantial change in circumstances warranting 

modification of the Agreed Order. We review the trial court’s decision to deny 

Mother’s request for modification for an abuse of discretion. Seidel v. Seidel, 10 

S.W.3d 365, 368 (Tex. App.—Dallas 1999, no pet.). “There is no abuse of discretion 

so long as some evidence of a substantive and probative character supports the trial 

court’s decision.” In re M.M.S., 256 S.W.3d 470, 476 (Tex. App.—Dallas 2008, no 

pet.). In determining whether some evidence supports the decision, we review the 

evidence in the light most favorable to that order, and we indulge every presumption 

in its favor. See In re G.E.D., No. 05-17-00160-CV, 2018 WL 258982, at *5 (Tex. 

App.—Dallas Jan. 2, 2018, no pet.) (mem. op.). 

The Texas Family Code permits a trial court to modify possession of a child 

if the modification is in the child’s best interest and the circumstances of the child, 

a conservator, or other party affected by the existing conservatorship order have 

materially and substantially changed since the rendition of the existing order. TEX.
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FAM. CODE ANN. § 156.101(a)(1)(A).

4 To prove that a material and substantial 

change of circumstances has occurred, the evidence must show the conditions that

existed at the time of the entry of the prior order as compared to the circumstances 

existing at the time of the hearing on the petition to modify. In re L.C.L., 396 S.W.3d 

712, 718 (Tex. App.—Dallas 2013, no pet.). As the party seeking modification, 

Mother had the burden below to show the requisite material and substantial change 

in circumstances since the entry of the previous order. In re C.C.J., 244 S.W.3d 911, 

918 (Tex. App.—Dallas 2008, no pet.). “A court’s determination as to whether a 

material and substantial change of circumstances has occurred is not guided by rigid 

rules and is fact specific.” Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.—

Austin 2006, pet. denied). 

Mother alleges that “severe conflict” has arisen between the parties since the 

time of the Agreed Order. She contends that Father is unwilling to communicate 

with her and gives two examples: (1) having I.S. give her messages about scheduling 

 

4

 The statute states:

The court may 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:

(1) the circumstances of the child, a conservator, or other party affected by the order have 

materially and substantially changed since . . . 

(A) the date of the rendition of the order.

FAM. § 156.101(a)(1)(A).
–9–

such as pick-up times, and (2) arguing with her at one of I.S.’s football games—

when I.S. was present—concerning whether I.S. could spend the night with Father.5

Mother characterizes this conduct as “hostile” and “aggressive.” Mother also alleges 

that Father has intentionally attempted to harm her relationship with I.S. She 

complains that Father has prevented I.S. from contacting her while in Father’s 

possession and that he has monitored I.S.’s calls with her. Mother’s remaining 

arguments suggest that Father mistreats I.S. And she charges that Father “began to 

smoke marijuana,” engaged in abusive discipline of I.S., and failed to enforce an 

appropriate bedtime for the child. 

Father’s testimony responded to Mother’s allegations; the following are 

examples of his testimony.

 Mother alleges that Father thwarted contact between her and I.S. But 

Father and his wife both testified that when I.S. is with them, they 

encourage I.S. to call Mother every day as the Agreed Order requires. 

Mother did not refute that testimony. 

 Mother testified that Father took away I.S.’s cell phone; Father 

explained he did so only when I.S. and Father’s other children would 

not settle down for bed. 

 

5

 Father had come to town to see the game. The Agreed Order required Mother to “make every effort 

to allow Father additional time with the child, upon reasonable notice, when Father is in the area of the 

child’s residence.”
–10–

 Mother complained that I.S. had no set bedtime. Father acknowledged 

this is true but pointed out that when I.S. is with him, it is the child’s 

vacation, and strict schedules are not necessary.

 Mother stated that Father monitors I.S.’s calls and texts with Mother; 

Father denies ever doing so.

 Father acknowledged that he occasionally uses marijuana, away from 

the house, to address the pain he experiences following his football 

career. 

 Father also acknowledged being placed on administrative leave by his 

current employer, a high school where he worked as the football coach, 

for conduct that included his use of vulgar language around students 

and his having students practice contrary to medical advice. 

 Mother’s complaints about abusive or “extreme” punishments were 

strongly disputed. She alleges that Father uses corporal punishment; 

Father says he may have spanked I.S. once—with his hand—but that 

was when the parents were together. Dr. Threats testified that she did 

not believe corporal punishment was an issue. Likewise, Dr. Threats 

acknowledged that performing household chores—cleaning up after 

family pets and washing the car—could be appropriate punishments. 

And while she expressed concerns about Father’s punishing the boys 

one time by burning their shoes, which Father said was an effort to 
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address his concerns about their behavior and materialism, Father 

agreed it had not been a good idea and stated he would not repeat it. In 

the end, Dr. Threats testified that while Father’s punishments might 

make the child unhappy, they were not abusive.

We conclude that there is conflicting evidence concerning Mother’s charges 

of inappropriate conduct by Father toward her and I.S. The trial court does not abuse 

its discretion when its decision is based on conflicting evidence and some evidence 

in the record reasonably supports the trial court’s decision. In re J.M., No. 05-15-

01161-CV, 2017 WL 563341, at *2 (Tex. App.—Dallas Feb. 13, 2017, no pet.)

(mem. op.). We conclude that Father presented some evidence of a substantive and 

probative character that supports the trial court’s decision. See In re M.M.S., 256 

S.W.3d at 476.

Moreover, Mother’s burden was to establish that circumstances—in this case, 

Father’s behavior— had materially and substantially changed since the Agreed 

Order. FAM. § 156.101(1)(A). To carry this burden, she had to show what conditions 

existed at the time of the entry of the Agreed Order and compare those conditions to 

the circumstances at the time of the hearing in this case. See In re A.B.P., 291 S.W.3d 

91, 96–97 (Tex. App.—Dallas 2009, no pet.). Mother’s testimony concerning 

conditions at the time of the Agreed Order is scant and was elicited primarily from 

Father’s counsel’s questioning. She testified that the break-up had engendered 

“extensive litigation.” She conceded that, at that time, she made allegations that 
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Father was emotionally abusive to her and that he was controlling. She testified she 

did not then remember making allegations that he was verbally abusive, but she 

agreed that he was. Our record does not support a conclusion that the “high-conflict” 

nature of the parents’ relationship was something new or different after the Agreed 

Order. See id. at 96 (“And although Mother and Father both indicated in their 

testimony that they continued to have difficulty communicating and getting along 

with each other, there is no evidence that the difficulty was new or different since 

the entry of the prior order.”).

Finally, in the specific area that Dr. Threats appeared to consider the most 

troubling—Father’s smoking marijuana—Mother also failed to establish changed 

circumstances. Father testified he began smoking marijuana while he and Mother 

were together around 2012 or 2013. Mother acknowledged that she had smoked 

marijuana with him once during that time. While the trial court could have 

disapproved of Father’s behavior in this regard, even for purportedly medical 

reasons stemming from past football injuries, Mother did not establish that Father’s

conduct had changed since the Agreed Order in any material or substantial way. 

Absent evidence of such a change, the evidence does not support modification of the 

parenting plan in the Agreed Order.

We discern no abuse of discretion in the trial court’s determination that there 

had been no material and substantial change in the relationships between and among 

the members of this family. We overrule Mother’s first issue.
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The Non-Disclosure Agreement

In her second issue, Mother contends that the trial court erred in determining 

that Father did not breach the Non-Disclosure Agreement and by denying Mother’s 

request for permanent injunctive relief and attorney’s fees. The Texas Supreme 

Court has recently confirmed that we are to review a trial court’s refusal of a 

permanent injunction—as we do a temporary injunction—for an abuse of discretion.

Pike v. Tex. EMC Mgmt., LLC, No. 17-0557, 2020 WL 3405812, at *23 (Tex. 

June 19, 2020). A party is entitled to a permanent injunction if she proves (1) a 

wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an 

adequate remedy at law. Id. In this case, the wrongful act Mother was required to 

prove was a breach of the Non-Disclosure Act.

Mother contends that the trial court’s Order is contrary to the great weight and 

preponderance of the evidence. We understand her argument to be a claim of factual 

insufficiency of the evidence to support the trial court’s implied finding that Father 

did not breach the Non-Disclosure Agreement.

6 When a party attacks the factual 

sufficiency of an adverse finding on an issue on which she had the burden of proof, 

she must demonstrate on appeal that the adverse finding is against the great weight 

and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 

 

6

 In the absence of findings and conclusions, the judgment of the trial court implies all necessary fact 

findings in support of the judgment. G.T. Mgmt., Inc. v. Gonzales, 106 S.W.3d 880, 883 (Tex. App.—Dallas 

2003, no pet.). When a reporter’s record is brought forward, as it is here, an implied finding is subject to a 

factual sufficiency challenge. Sproul v. Sasser, No. 05-08-00502-CV, 2009 WL 2232240, at *2 (Tex.

App.—Dallas July 28, 2009, no pet.) (mem. op.).
–14–

(Tex. 2001). We consider and weigh all of the evidence, and a finding may be 

overturned only if it is so against the great weight and preponderance of the evidence 

as to be clearly wrong and unjust. In re L.A.F., 270 S.W.3d 735, 739 (Tex. App.—

Dallas 2008, pet. denied).

Mother argues that Father violated the Non-Disclosure Agreement by 

“extensively comment[ing] on his relationship with Mother and his opinion about 

Mother’s dating relationship with a celebrity.” Father testified that he understood the 

phone call at issue to have been looking for information about his football career. 

He stated that when the caller would intermittently ask a question about Mother or 

her relationship with the celebrity she was dating, he would attempt to deflect the 

caller from that subject with his responses. He testified that his answers were then 

misused by Radar Online, which placed his responses in incorrect context. For 

example, when the caller asked Father about Mother’s personal styling business, he 

responded that it appeared to be a good opportunity for her. But the article quoted 

that response as if Father had commented that Mother’s relationship with the 

celebrity was a good opportunity for her.

Only Father testified to the actual exchange between himself and the caller. 

The trial court, as finder of fact in this case, was the sole judge of his credibility. See 

Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). We 

conclude the trial court could have read the quotes attributed to Father to support his 
–15–

testimony that he tried not to talk about Mother or anything substantive about her 

relationship. Those quotes, absent context provided by Radar Online, were:

 “I don’t want to be part of that.”

 “I don’t think he’s a bad guy; I don’t know him.”

 “We have limited communication.”

 “As long as she’s off my back, I’m all for it. If she’s happy, she’s happy. They 

can do whatever they want to do.”

 “It seems like a good opportunity for her; I think that’s working.”

When read in a neutral light, the trial court could have determined that these 

statements by Father did not disclose confidential information concerning Mother or 

concerning her relationship with the celebrity. No quote in the above list discloses 

the kind of personal or sensitive information listed in sentence [1] of the NonDisclosure Agreement.7

Indeed, to the extent Father refers in any way to Mother’s 

relationship with the celebrity, he disclaims knowledge of or concern with the 

relationship. Even given the sweeping breadth of sentence [3]’s assertion that “as a 

general rule, any information regarding the other party to this Agreement and his or 

her respective family members, spouse, and/or significant other is private and 

confidential,” the trial could have concluded that Father disclosed no substantive 

 

7

 Again, that list includes: “health and medical information, business, financial and legal information, 

and information concerning the parties’ future relationships (and the existence thereof), professional and 

personal relationships, sexual matters, religious practices and beliefs, private residences (and the details 

thereof), private email addresses, Personal Identification Numbers, social security numbers and credit card 

information.”
–16–

information concerning Mother in these quotes. And as to sentence [4]’s admonition 

that the parties are not to “confirm or deny” confidential information that has entered 

the public domain, the article itself establishes that Father did not confirm the 

existence of Mother’s relationship with the celebrity—a member of her own family 

did.8

The only evidence contrary to Father’s testimony is the article itself. When 

considering the article, the trial court could have given weight to the tenor and tone

of the site. Following the body of the article, the site invites readers to “EXPLORE 

THIS STORY” and refers them to three earlier articles concerning the relationship 

on the site. It then asks: “Why do you think they’re keeping their romance a secret? 

Tell us in the comments!” And the page concludes with the following 

acknowledgement: 

We pay for juicy Info! Do you have a story for RadarOnline.com? 

Email us at tips@radaronllne.co111, or call us at (866) ON-RADAR 

(667-2327) any time, day or night.

The trial court could have concluded that the site’s emphasis was on promoting a 

“juicy” story in a fashion that would bring readers, comments, and further 

exploration on the site. The court could have determined that Father’s testimony that 

the site misstated the context of his remarks was more credible than the site’s version 

of the quoted remarks.

 

8

 The article states, “Radar broke the relationship news earlier this month when [Mother’s] cousin 

confirmed the secret romance.”
–17–

We conclude the trial court’s implied finding that Father did not breach the 

Non-Disclosure Agreement was not contrary to the great weight and preponderance 

of the evidence; nor is that finding clearly wrong and unjust. See In re L.A.F., 270 

S.W.3d at 739. Factually sufficient evidence supports the finding. We overrule 

Mother’s second issue.

Conclusion

We affirm the trial court’s Order.

181223f.p05

/Bill Pedersen, III//

BILL PEDERSEN, III

JUSTICE
–18–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF I.S., A 

CHILD

No. 05-18-01223-CV 

On Appeal from the 469th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 469-55837-

2013.

Opinion delivered by Justice 

Pedersen, III. Justices Osborne and 

Partida-Kipness participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee Gerald Sensabaugh recover his costs of this 

appeal from appellant Kristin Smith.

Judgment entered this 29th day of September, 2020.