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In re H.N.H.

Court of Appeals of Texas, Fourth District, San Antonio

July 10, 2019

IN THE INTEREST OF H.N.H. and H.J.H., Children

          From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 15-179CCL Honorable Bill R. Palmer, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Beth Watkins, Justice

         Appellant Robert Joseph Heath appeals from the trial court's order in a suit affecting the parent-child relationship. In a single issue on appeal, Robert argues the trial court abused its discretion by modifying the geographic restriction on appellee Ashley Nicole Heath's exclusive right to designate the primary residence of Robert's and Ashley's children. We affirm the trial court's modification order.

         Background

         Robert and Ashley were married in 2009 and had two children. After Ashley filed for divorce, the parties entered into a mediated settlement agreement dated August 18, 2015. The agreement named Robert and Ashley joint managing conservators of the children and granted Ashley the exclusive right to designate the children's primary residence, subject to a geographic restriction to Kendall County and contiguous counties. On December 7, 2015, the trial court entered an agreed final decree of divorce incorporating the terms of the mediated settlement agreement.

         In 2018, Ashley filed a petition to modify the terms of the final decree to permit her to relocate with the children to Kansas City, Kansas. After holding a three-day hearing on the petition, the trial court entered a modification order granting Ashley the right to designate the children's primary residence in Johnson County, Kansas or any contiguous county. On Robert's request, the trial court entered findings of fact and conclusions of law. Robert appeals.

         Standard of Review

         We review the trial court's decision to modify the terms and conditions of conservatorship for abuse of discretion. In re B.L.J.P., No. 04-14-00015-CV, 2014 WL 5020121, at *1 (Tex. App.-San Antonio Oct. 8, 2014, no pet.) (mem. op.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). The trial court abuses its discretion if its ruling is "arbitrary, unreasonable, or without reference to any guiding principles." Id. (citing K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)). The trial court does not abuse its discretion if some evidence of a substantive and probative character supports its ruling, even if the record contains conflicting evidence. Id. (citing Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.-Dallas 2003, no pet.); Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.-Austin 2002, no pet.)).

         Discussion

         Robert argues the trial court abused its discretion by modifying the terms of conservatorship contained in the agreed final decree of divorce.

         A. Applicable law

         A trial court may modify the terms and conditions of conservatorship, including a geographic restriction, only if: (1) modification is in the children's best interest; and (2) the circumstances of the children, a conservator, or another party affected by the order have materially and substantially changed since the earlier of (a) rendition of the order, or (b) signing the mediated settlement agreement on which the order is based. Id. (citing Tex. Fam. Code Ann. § 156.101(a)(1)). Where the trial court does not expressly find a material and substantial change in circumstances, we may presume such a finding if it is supported by some evidence in the record. See In re P.M.G., 405 S.W.3d 406, 413 (Tex. App.-Texarkana 2013, no pet.); In re H.N.T., 367 S.W.3d 901, 904 (Tex. App.-Dallas 2012, no pet.) (citing Tex.R.Civ.P. 299).

         "In deciding whether a material and substantial change of circumstances has occurred, a trial court is not confined to rigid or definite guidelines." In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.-Houston [14th Dist.] 2009, no pet.). The trial court's determination "is fact-specific and must be made according to the circumstances as they arise." Id. "[T]he law does not prescribe any particular method for a showing of ...


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