IN THE INTEREST OF K.A.M.S. & K.A.S., CHILDREN
Appeal from the 311th District Court Harris County, Texas
Trial Court Cause No. 2006-26052
consists of Justices Wise, Zimmerer, and Spain.
Charles A. Spain Justice
Gilberto Sanchez (Father) appeals from a final order in a
suit to modify a parent-child relationship. See Tex.
Fam. Code Ann. § 109.002 (Supp.). He argues that the
trial court abused its discretion when it: (1) appointed
appellee Crystal Farrow (Mother) sole managing conservator;
(2) modified Father's standard possession order; (3)
increased Father's monthly child-support and
medical-support payments; and (4) awarded Mother's
attorney her attorney's fees. We conclude that the
attorney's-fee award was not supported by
legally-sufficient evidence. Therefore, we reverse the
portion of the trial court's final order regarding
attorney's fees, and remand the case to the trial court
for further proceedings limited to Mother's
attorney's-fee discovery-sanction claim. We otherwise
2006, Mother filed the original SAPCR, and on December 18,
2006, the trial court signed an order adjudicating Father the
parent of two children born to Mother, K.A.M.S. and K.A.S.
See Tex. Fam. Code Ann. §§ 101.023,
160.636(a). The trial court ordered that Mother and Father
have joint-managing conservatorship, Mother has the exclusive
right to determine the children's primary residence
within Harris County, and Father has standard possession and
access. See Tex. Fam. Code Ann. §§
101.016, 101.029, 153.002, 153.134(b), 153.251; Act of Apr.
6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen.
Laws 113, 147, amended by Act of May 12, 2015, 84th
Leg., R.S., ch. 117, § 3, 2015 Tex. Gen. Laws 1119, 1120
(current version at Tex. Fam. Code § 153.005(a)(1)).
Father was ordered to pay Mother $615.00 per month in child
support and to provide the children with health insurance or
reimburse Mother for the cost of their insurance.
See Tex. Fam. Code Ann. §§ 101.015,
154.001(a) (Supp.); Act of May 24, 2001, 77th Leg., R.S., ch.
1023, § 3, 2001 Tex. Gen. Laws 2240, 2240, amended
by Act of May 27, 2015, 84th Leg., R.S., ch. 1150,
§ 8, 2015 Tex. Gen. Laws 3868, 3869 (current version at
Tex. Fam. Code § 154.008).
September 18, 2013, the trial court signed an order that
Father pay Mother his child-support and medical-support
arrears. See Tex. Fam. Code. Ann. § 157.263.
The order also modified Father's child-support obligation
based on a material and substantial change in circumstances
to $440.00 a month, plus $60.00 a month in cash medical
support. See Tex. Fam. Code Ann. §§
156.001, 156.402; Act of May 16, 2011, 82nd Leg., R.S., ch.
508, § 3, 2011 Tex. Gen. Laws 1264, 1264, amended
by Act of May 27, 2015, 84th Leg., R.S., ch. 1150,
§ 29, 2015 Tex. Gen. Laws 3868, 3875-76 (current version
at Tex. Fam. Code § 156.401(a)(1)).
filed the current SAPCR as a modification petition in 2017.
Mother requested that she be named sole managing conservator
of the children, Father be ordered to pay increased child
support and the health-insurance premium for the children,
Father have possession of and access to the children at times
and dates reached by agreement of the parties, and Father pay
reasonable attorney's fees to Mother's attorney.
See Tex. Fam. Code Ann. §§ 106.002,
156.001, 156.101, 156.402; Act of May 16, 2011, 82nd Leg.,
R.S., ch. 508, § 3, 2011 Tex. Gen. Laws 1264, 1264
filed a motion to compel discovery and for sanctions. The
trial court signed an order granting Mother's motion to
compel and ordering Father to pay attorney's fees,
expenses of discovery, and court costs totaling $2, 011.65 to
bench trial, Mother, Father, and Mother's attorney
testified. Before rendering judgment, the trial court
interviewed K.A.M.S., then fourteen-years old, and K.A.S.,
then twelve-years old, in chambers. See Tex. Fam.
Code. Ann. §§ 153.009, 156.101(a)(2). Mother
requested a record of this interview, but it is not included
in the reporter's record before us. See Tex.
Fam. Code Ann. § 153.009(f).
trial court concluded there had been a material and
substantial change in circumstances since the 2006 paternity
order and that modifying the order was in the best interest
of the children. See Tex. Fam. Code Ann.
§§ 153.002, 156.101(a)(1). The trial court named
Mother sole managing conservator and Father possessory
conservator. See Tex. Fam. Code Ann. §§
153.005 (Supp.), 153.006. The trial court concluded that a
standard possession order was inappropriate or unworkable
under the circumstances, a modified possession order was not
more restrictive than necessary to protect the best interest
of the children, and Father shall have possession at times
mutually agreed to in advance by the parties. See
Tex. Fam. Code Ann. §§ 153.193, 153.252-.253,
trial court also concluded there had been a material and
substantial change in circumstances since the 2013
modification order. The trial court concluded that Father was
intentionally underemployed, and his actual income was
significantly less than his earning potential. See
Tex. Fam. Code Ann. § 154.066(a). The trial court
concluded that Father's potential gross income was $3,
333.33 per month, with guideline support at a rate of $500.00
per month. The trial court further concluded that
application of the guideline support for Father's
potential income was not in the best interest of the children
and was unjust or inappropriate under the factors outlined in
Family Code section 154.123(b)(1), (2), (3), (4), (5), (7),
(12), (13), (15), and (17). See Tex. Fam. Code Ann.
§§ 154.122-.123. The trial court therefore set
Father's child support at $650.00 per month for both
children and $520.00 per month for one child after
emancipation of the older child. The trial court ordered
Mother to maintain health insurance for the children and
Father to reimburse Mother cash medical support of $132.00
trial court concluded that reasonable and necessary
attorney's fees of $9, 800.00 were incurred by Mother in
retaining the services of her attorney, including $2, 000.00
Father previously was ordered to pay in the order on
Mother's motion to compel discovery and for sanctions.
The trial court ordered Father to pay Mother's attorney
trial court signed its final order on January 2, 2018. Father
did not request findings of fact or conclusions of law or
file a motion for new trial. Father appealed. See
Tex. Fam. Code Ann. § 109.002 (Supp.).
courts have wide discretion with respect to determining the
best interest of a child and over custody, control,
possession, support, and visitation matters. Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re
A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th
Dist.] 2009, no pet.). We therefore review the trial
court's granting of Mother's petition to modify for
an abuse of discretion. See Gillespie, 644 S.W.2d at
451; In re A.L.E., 279 S.W.3d at 427.
trial court abuses its discretion when it acts arbitrarily,
unreasonably, or without reference to any guiding rules or
principles. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990). The trial court does not abuse its discretion if
there is some evidence of a substantive and probative
character to support its decision. In re A.L.E., 279
S.W.3d at 428; see Worford, 801 S.W.2d at 109.
this abuse-of-discretion standard, legal and factual
sufficiency are not independent grounds of error, but instead
are relevant factors to determine if the trial court abused
its discretion. In re A.L.E., 279 S.W.3d at 427;
see Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223,
226 (Tex. 1991). When examining legal sufficiency, we review
the entire record, considering evidence favorable to the
finding if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not.
Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018);
In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.-Houston
[14th Dist.] 2016, pet. denied). We indulge every reasonable
inference that would support the challenged finding.
Gunn, 554 S.W.3d at 658. Evidence is legally
sufficient if it would enable reasonable and fair-minded
people to reach the decision under review. Id.
factual-sufficiency review, we examine the entire record and
consider evidence favorable and contrary to the challenged
finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986) (per curiam); In re P.A.C., 498 S.W.3d at 214.
We may 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, 709 S.W.2d at 176.
bench trial, the trial court is in the best position to
observe and assess the witnesses' demeanor and
credibility, and "to sense the forces, powers, and
influences that may not be apparent from merely reading the
record on appeal." Taylor v. Meek, 276 S.W.2d
787, 790 (Tex. 1955); In re A.L.E., 279 S.W.3d at
427 (internal quotation marks omitted). As a result, an
appellate court defers to a trial court's resolution of
underlying facts and to credibility determinations that may
have affected its determination, and will not substitute its
judgment for that of the trial court. Walker v.
Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
Modification of conservatorship and of possession and
construe Father's first and second issues as challenging
the trial court's discretion in modifying (1) the
conservatorship of the parties from joint managing
conservators to sole managing conservator (Mother) and
possessory conservator (Father) and (2) Father's standard
visitation order to possession at times mutually agreed to in
advance by the parties. Father acknowledges that
"[c]ourts have particularly wide latitude in
establishing the specific terms and conditions of visitation
and conservatorship." However, according to Father, the
trial court's decision "was based on a narrow review
of the law, and needs to be reversed." We disagree.
addressing Father's arguments, we remain mindful that
"[t]he best interest of the child shall always be the
primary consideration of the court in determining the issues
of conservatorship and possession of and access to the
child." Tex. Fam. Code Ann. § 153.002. Family Code
section 156.101, "Grounds for Modification of Order
Establishing Conservatorship or Possession and Access,"
in pertinent part provides:
(a) 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 the earlier of:
(A) the date of the rendition of the order ...