In the Interest of A.P.L. and T.D.L., Minor Children v. the State of Texas

Opinion issued August 21, 2025

In The

Court of Appeals
For The

First District of Texas
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NO. 01-23-00725-CV
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IN THE INTEREST OF A.P.L. AND T.D.L., MINOR CHILDREN

On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 2015-64508

***

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NO. 01-23-00843-CV
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IN RE L.L., Relator
Original Proceeding on Petition for Writ of Mandamus
Harris County, Texas
Trial Court Case No. 2015-64508

OPINION

In this appeal from a final order modifying conservatorship of the parties’ two

children, Mother argues the trial court abused its discretion by granting Father’s

petition to be given the exclusive rights to designate the children’s primary residence

and make medical, mental-health, and education decisions for them. Mother also

challenges, in the appeal and in her related mandamus proceeding, the trial court’s

order requiring her to pay some of Father’s attorney’s fees under section 109.001 of

the Family Code. Because the attorney’s fee issue can be reviewed as part of the

appeal, we deny the mandamus petition. We affirm the trial court’s judgment.

I. Background

A. The parties divorce and agree to be joint managing conservators

Mother and Father divorced in 2017 under a mediated settlement agreement

that provided the terms for conservatorship and support of their minor children,

A.P.L. and T.L.1 The trial court signed an agreed final decree that contained the

1
We use initials to protect the children’s privacy. See TEX. FAM. CODE § 109.002(d).
2
parties’ agreements. Among other terms, the agreed final decree designated Mother

and Father as joint managing conservators of the children and ordered that:

• Mother have the exclusive right to designate the children’s primary
residence.

• The children stay with Father on alternating weekends and at additional
times around holidays and summer break.

• Mother, who is Christian, have the children on Christian holidays, and
Father, who is Jewish, have the children on Jewish holidays.

• Mother and Father have joint rights to consent to (1) non-emergency
medical, dental, and surgical treatment involving invasive procedures, and
(2) mental-health treatment and evaluation of the children, provided that
“no child shall be administered any stimulant or other psychotropic
medication without the express written agreement of the other party or
further order of the court.”

• Mother and Father have joint rights to make decisions concerning the
children’s education.

• Father must pay monthly child support.
The agreed final decree included tiebreaker provisions in the event of a

disagreement between Mother and Father about the children’s medical,

mental-health, or educational needs. For instance, if Mother and Father disagreed

about medical or mental-health treatments, the children’s pediatricians’

recommendation would prevail in most cases. The parties designated specialists for

certain medical conditions—namely, an endocrinologist for treatment of T.L.’s

pituitary dwarfism and an allergist for A.P.L.’s allergies, asthma, and eczema.

3
As for the children’s education, the agreed final decree allowed for their

continued enrollment at the private school they attended (“the Private School”). The

agreed final decree required the children to attend the Private School if either parent

“enrolls and pays,” which the decree defined as registering the child by the school’s

deadline, paying the tuition, and providing written notice to the other parent by a

certain date. If the children were not enrolled in the Private School, then they would

attend the public school zoned for Mother’s residence, unless Mother and Father

mutually agreed otherwise in advance.

B. Father petitions to modify the agreed final decree, and Mother
counterpetitions
A little more than three years after the divorce, Father petitioned to modify

the agreed final decree. He alleged that the parties’ circumstances had materially

and substantially changed and that Mother was engaging in alienating behavior and

disparaging him, his family, and his religion. Father asked the trial court to give him

exclusive rights to designate the children’s primary residence and make medical,

mental-health, and education decisions for them, eliminate his child-support

obligation, and grant Mother a standard possession order.

Mother filed a counterpetition in which she also alleged that the parties’

circumstances had materially and substantially changed. She asked the trial court to

maintain her right to designate the children’s primary residence and give her, not

Father, the exclusive right to make medical, mental-health, and education decisions.

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Mother also asked the trial court to adjust the possession schedule and order the

children enrolled at the public schools zoned to her residence.

C. A trial shows inability to co-parent as the children’s needs changed and
Father planned to remarry

During a ten-day bench trial, the parties offered testimonial evidence and

dozens of exhibits. Both sides presented evidence of the children’s medical,

mental-health, and educational needs, some of which predated the divorce and others

of which had developed since the divorce. The evidence showed that A.P.L. has

been treated for allergies and eczema since she was four, and that T.L. was diagnosed

by his endocrinologist with pituitary dwarfism at three and takes growth hormones

by injection six nights a week.

As the children grew older, these conditions evolved, and the co-parenting

relationship became strained. For example, A.P.L. struggled with anxiety, attention,

and focus at school. In August 2018, speech pathologist K. Musher evaluated A.P.L.

“to get a better understanding of her learning profile.” In her report, Musher noted

A.P.L. was having increasing difficulty in reading and math at school. The Private

School staff had expressed concern for whether A.P.L. could keep up as she

transitioned grades and recommended that she be evaluated to “identify any factors

which could be interfering with her learning” and “receive recommendations for

appropriate intervention.” The evaluation led Musher to conclude that A.P.L. had a

“specific learning disorder with impairment in reading.” She opined that other

5
factors also might be interfering with A.P.L.’s learning, including an

attention-deficit disorder or emotional factors related to family stress. Musher

recommended several intervention therapies, including specific therapies related to

reading comprehension, certain accommodations at school, and tutoring. She also

recommended a formal assessment in those areas if people working with A.P.L. felt

that “difficulty with attention and/or emotional factors [was] interfering with her

optimal learning, performance, and response to intervention.”

In August 2019, the Private School met with Father and Mother to recommend

that A.P.L. undergo a formal psychoeducational evaluation and provided a list of

psychologists.2 Mother and Father disagreed about how to handle this

recommendation. In correspondence with the Private School, Mother dismissed the

school’s concerns as inconsistent with A.P.L.’s academic performance and as being

a private family matter. She attributed A.P.L.’s anxiety to poor parenting by Father,

claiming that A.P.L.’s anxiety stemmed from not being “prepared [for] her

studies . . . the next day after visiting her father.” Father, on the other hand,

approved of the school’s efforts and advice. He described Mother as “[a]bsolutely

2
A school counselor explained that a psychoeducational evaluation is a “complete
evaluation of a child” that provides “information about their academic abilities, their
IQ, behavioral, social, emotional, sort of a whole picture of the child”, along with
recommendations “for school and at home so that everyone . . . on the student’s
team can help put things in place to support the child.” She explained why the
evaluation was important: “If a child is struggling it helps to clarify what’s going
on. So it often provides a diagnosis.”

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against” the professionals and “unappreciative” of their concern for A.P.L.3 In his

view, Mother obstructed the care A.P.L. needed.

A.P.L. was eventually tested and diagnosed with ADHD in 2021, about a year

and a half after the Private School suggested the testing. The neuropsychologist, Dr.

Raizner, expressed that A.P.L. “exhibits clinically significant attention problems and

was rated ‘at risk’ for hyperactivity and conduct problems.” The doctor’s report

recommended “an executive functioning specialist, classroom accommodations, and

consultation with [A.P.L.’s] pediatrician to determine whether she would be an

appropriate candidate for medical management of symptoms.”

Family strife continued over treatment for A.P.L.’s ADHD, with Father

supporting medication, and Mother opposing it in favor of education therapy and

tutors. A.P.L. had also expressed some reservations about medication. The

disagreement was submitted to A.P.L.’s pediatrician, Dr. Koush, who recommended

“both behavioral strategies for ADHD (including accommodations at school) and a

3
There was conflicting evidence on whether Mother’s approach toward the teachers
and staff at the Private School risked A.P.L.’s continued attendance at the school.
Mother claimed that after a meeting at the school to discuss A.P.L.’s needs, school
personnel met with her separately to criticize Father for involving the school in
family disputes. However, staff from the school disputed that characterization of
the second meeting. In an email, they stated that Mother had mischaracterized the
conversation, which was “about [Mother’s] inappropriate tone in emails and the
difficulty [the Private School] had in scheduling the meeting [to discuss A.P.L.’s
needs] with [Mother].” The email closed by requesting that Mother direct any
further emails concerning A.P.L. or T.L. to the administrators, rather than the
children’s individual teachers because of the “growing problem with
communication.”
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trial of medication.” Despite Dr. Koush’s recommendation, Mother and Father

continued to disagree about when A.P.L. should start medication, as well as where

and how often she should take it.

The parties had still not reached an agreement a few months later, when

A.P.L.’s behavioral problems worsened. By then, Father had filed his petition to

modify the agreed final decree, and with the support of the children’s amicus

attorney, obtained a trial court order for A.P.L. to begin a drug trial. The trial began

while A.P.L. was in Mother’s care, but when Mother emailed A.P.L.’s psychiatrist,

Dr. Katic, two days later with a lengthy list of symptoms A.P.L. was experiencing,

Dr. Katic recommended that Mother stop giving A.P.L. the medication and that the

parties find a different psychiatrist “who may be able to help A.P.L.” Father

expressed his belief that Mother had intentionally “sabotaged” the drug trial and

“brainwashed” A.P.L. into opposing the medication. To accommodate A.P.L.’s

needs, Mother and Father eventually made the decision to move A.P.L. to a less

rigorous, remedial school.

T.L. also had specific medical needs about which Mother and Father

disagreed. In August 2022, T.L. had not been formally diagnosed with any learning

disabilities but was showing indicators for dyslexia and dysgraphia. To provide T.L.

with accommodations at school, the Private School required an evaluation by a

psychologist. Dr. Koush recommended the same psychologist who had performed

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A.P.L.’s evaluation, Dr. Raizner, but Dr. Raizner declined because of the pending

litigation. The parties’ disagreement over alternatives worsened, and Dr. Koush, the

pediatrician designated as a tiebreaker, declined any further involvement, making

her the third medical provider to decline further involvement. Dr. Koush explained

via email, “This issue has unfortunately become far too contentious for what should

be a simple decision. Legal has advised me not to comment further.” This delayed

T.L.’s evaluation.

Ultimately, T.L. was evaluated by Dr. Landis in December 2022, and she

diagnosed him with dysgraphia and a learning disorder with impairment in reading.

Dr. Landis recommended two hours of weekly educational therapy, which was less

than a previous recommendation of nine hours. Dr. Landis also believed that T.L.

had progressed beyond a previously recommended curriculum focused on decoding

words rather than reading comprehension, something Father claimed supported his

view that T.L. had outgrown aspects of his condition.

Similar issues arose regarding T.L.’s growth-hormone deficiency and the

injections he was prescribed to support his development until he reaches puberty.

According to Mother, Father disagreed with T.L.’s diagnosis and suggested

alternative treatments that were rejected by T.L.’s endocrinologist. Evidence

suggested that Mother sometimes gave T.L. extra doses to make up for the doses she

believed Father was not giving. But Father expressed at trial his agreement that it

9
was necessary to administer the growth hormone as prescribed. Father conceded

that he had occasionally missed a dose because T.L. was participating in social

activities and was embarrassed to receive an injection in front of others. He claimed

that any long gaps in administering the growth hormone were due to national

shortages or denial of insurance coverage for the injections, which were expensive.

Family strife was not limited to the children’s medical and mental-health

needs. The parties disagreed about where the children, particularly A.P.L., should

attend school, with both accusing the other of involving A.P.L. in the disagreement

and having inappropriate conversations with her regarding enrollment preferences.

Additionally, Father claimed at trial that Mother sometimes made it difficult for him

to exercise periods of possession with the children; had disparaged his Jewish faith,

disparaged his family, which included a new fiancée and her children from a prior

relationship; and threatened to impair his relationship with A.P.L. and T.L. A few

examples include that Mother involved the children in negotiations with Father over

possession schedules and included A.P.L. in a disagreement with Father about

discipline and extracurricular activities. There was also evidence that Mother has

called Father a “low life” and an “incompetent parent,” and “flipped [him] off” in

front of T.L.

For her part, Mother offered explanations for the claimed interference with

Father’s parenting and testified that she was the parent who encouraged a positive

10
relationship between the children and Father. She also offered evidence that she had

primary responsibility for selecting the children’s doctors, taking them to

appointments, and obtaining diagnosis and treatment for their medical conditions,

whereas Father had little involvement in the children’s medical treatment.

A.P.L. and T.L. were interviewed by the trial court under oath. T.L., who was

ten at the time, told the trial court everything at home was “good.” He did not

identify anything he wished to change about either parent’s home, which he

described as being mostly the same. T.L. admitted that he did not like “spending a

lot of time” with Father’s fiancée even though she was “nice.” A.P.L., then fourteen,

expressed a preference to live with Father. A.P.L. explained that while she loved

both parents, Mother sometimes made her feel bad about herself, and A.P.L. could

be “more like a teenager” at Father’s house. A.P.L. was aware of the parental

conflict. Asked if she could remember a time when her parents got along, she

answered: “Nope. Never. They can never agree on anything.”

In closing arguments, the court-appointed amicus attorney acknowledged that

the children’s needs had substantially changed and that the “severe” parental conflict

had reached the point at which the provisions in the agreed final decree no longer

made sense. The parental conflict had “trickled into” the children’s medical

appointments and evaluations, causing more than one of the professionals designated

as a tiebreaker to withdraw from that role. After recognizing the “close, loving

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relationships” between each child and both parents and both parents’ good

intentions, the amicus attorney opined that it would be in the children’s best interest

for Mother to retain the exclusive right to designate the children’s primary residence

and be given the exclusive right to make their medical, mental-health, and education

decisions.

D. The trial court modifies the agreed final decree to give Father exclusive
rights
After considering the evidence and arguments of counsel, the trial court

signed a rendition and, three months later, a modified order granting Father the

exclusive rights to designate the children’s primary residence and, with prior written

notice to Mother, make medical, mental-health, and education decisions for them.

The trial court also terminated Father’s child support obligation and granted Mother

a standard possession order.

The trial court issued findings of fact and conclusions of law in support of its

ruling, including findings under section 156.101 of the Family Code that the

circumstances of Mother, Father, “and/or” the children had materially and

substantially changed and that it was in the children’s best interest for Father to have

the exclusive rights to designate their primary residence, consent to medical

procedures and mental-health care, designate the children’s schools, and make

decisions regarding their education. The trial court further found:

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6. The parents have become unable to co-parent to promote the
children’s best interests;
7. The tiebreaker terms of the [agreed final decree] became ineffective
either because a designated tiebreaker declined to decide an issue,
refused to work with the high-conflict parents, or because one or
more of the parties involved additional professionals besides those
listed in the order;

8. The parties are unlikely to reach agreements about any issue that has
a significant effect on the children’s health and welfare, and
therefore it is in the child’s best interest for one parent to be
primarily in charge of all such decisions;
9. [Mother] has exposed the children to hostility directed at [Father];
[and]

10.[Mother] has attempted to minimize or thwart the children’s contact
with [Father.]
...
12.The relationship between [Mother] and [Father] is a high-conflict
relationship, especially in the context of making medical,
psychiatric/psychological, and educational decisions for the
children. This difficulty is primarily prompted by [Mother’s]
disruptive and combative conduct, which is inconsistent with good
co-parenting.
13.[Father] is the parent who is most likely to encourage a positive
relationship with the other parent. [Father] has demonstrated a
desire, willingness, and ability to engage in proper communication
and cooperation with [Mother] regarding these decisions, which is
consistent with good co-parenting.
14.[Father] has demonstrated the ability to make medical,
psychiatric/psychological, educational, and other decisions for the
children that are in their best interest. [Mother] has failed to
demonstrate the ability to make medical, psychiatric/psychological,
educational, and other decisions for the children that are in their best
interest.

13
Although Mother requested additional findings on how each modification was

connected to the changed circumstances and why it was in the children’s best

interest, the trial court made none.

E. Mother asks the trial court to abate the modification order pending her
appeal

Mother filed an emergency motion to abate and suspend the modification

order under section 109.001 of the Family Code. See TEX. FAM. CODE § 109.001(a)

(authorizing trial court to “make any order necessary to preserve and protect the

safety and welfare of the child during the pendency of an appeal as the court may

deem necessary and equitable”). The motion stated Mother’s intention to appeal the

modification order and requested that her rights to make decisions about the

children’s medical and educational care be restored during the appeal. She alleged

that, since the rendition, Father had not met the children’s medical and educational

needs in several respects, including by not obtaining and administering T.L.’s

growth hormone, not arranging for T.L. to receive educational therapy, and not

arranging for A.P.L. to receive executive functioning tutoring. Mother also claimed

Father had enrolled A.P.L. at a high school that was not A.P.L.’s preferred school

and was “far away from her friends” and “cherished extracurricular activities.” In a

supplement to the motion, Mother also requested that the trial court award her

reasonable and necessary attorney’s fees and expenses she incurred in bringing the

motion to abate.

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Father opposed Mother’s motion and asked the trial court to order Mother to

pay his attorney’s fees. Under section 109.001, Father claimed that an award of fees

was necessary to the children’s safety and welfare during the pendency of the appeal

because he is “the parent with primary responsibility” for the children and has

“insufficient resources” to pay the fees for defending against Mother’s emergency

motion and appeal. Alternatively, Father requested fees “as monetary sanctions for

filing the emergency motion.”

The trial court held an evidentiary hearing, after which it denied Mother’s

motion. Relying on section 109.001, the trial court awarded Father $103,006 in

attorney’s fees for responding to Mother’s emergency motion and an additional

$173,250 in conditional appellate fees.

II. Standard of Review

Mother challenges the trial court’s final order modifying conservatorship of

the children and temporary order awarding Father attorney’s fees. We review both

orders for an abuse of discretion and will set them aside only if the trial court acted

arbitrarily or unreasonably or failed to analyze or apply the law correctly. Smith v.

Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

(modification order is reviewed for abuse of discretion); In re Wiese, No.

03-15-00062-CV, 2015 WL 4907030, at *1 (Tex. App.—Austin Aug. 12, 2015, orig.

15
proceeding) (mem. op.) (temporary order for fees under section 109.001 is reviewed

for abuse of discretion).

In family-law cases, the traditional sufficiency standards of review overlap

with the abuse-of-discretion standard. This means insufficiency of the evidence is

not an independent ground for reversal but an order that is not supported by sufficient

evidence may constitute an abuse of discretion. In re J.J.G., 540 S.W.3d 44, 55

(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting that legal and factual

insufficiency are relevant factors in assessing whether the trial court abused its

discretion); Zeifman v. Michels, 212 S.W.3d 582, 587–88 (Tex. App.—Austin 2006,

pet. denied) (same). To determine whether a trial court abused its discretion because

the evidence does not support its decision, we consider whether the trial court (1)

had sufficient information upon which to exercise its discretion and (2) erred in

applying its discretion. Zeifman, 212 S.W.3d at 588.

The first question is answered by the well-established standards for legal and

factual sufficiency. Evidence is legally sufficient if there is “more than a mere

scintilla” to support a vital fact finding, that is, “the evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions.”

Mehta v. Mehta, No. 23-0507, __ S.W.3d __, 2025 WL 1733267, at *3 (Tex. June

20, 2025) (quotation omitted). We consider the evidence in the light most favorable

to the finding, indulging every reasonable inference that supports it. Id. But in a

16
factual-sufficiency review, we examine all the evidence in a neutral light and

consider whether the trial court’s decision is so against the great weight and

preponderance of the evidence as to be clearly wrong and manifestly unjust. See

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).

As the factfinder, the trial court is the sole judge of the witnesses’ credibility

and the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d

802, 819 (Tex. 2005) (“[Trial courts] may choose to believe one witness and

disbelieve another. Reviewing courts cannot impose their own opinions to the

contrary.”). When there is conflicting evidence, we must presume the trial court

resolved any inconsistences in favor of the order if a reasonable person could do so.

Id. at 821; see also Ceniseros v. Rychlik, No. 03-17-00532-CV, 2018 WL 4265679,

at *3 (Tex. App.—Austin Sept. 7, 2018, no pet.) (mem. op.) (explaining the trial

court can best “observe the demeanor and personalities of the witnesses

and . . . ‘feel’ the forces, powers, and influences that cannot be discerned by merely

reading the record” (internal quotation omitted)).

In answering the second question—whether the trial court erred in applying

its discretion—we consider whether the trial court made a reasonable decision based

on the evidence. Zeifman, 212 S.W.3d at 588. Or stated inversely, we determine

whether there is some basis for concluding that the trial court’s decision was neither

arbitrary nor unreasonable. Id.

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To the extent our review involves questions of statutory construction, those

are questions of law we review de novo. See ExxonMobil Pipeline Co. v. Coleman,

512 S.W.3d 895, 899 (Tex. 2017).

III. Modification of Conservatorship

The law gives every parent a bundle of rights that includes, among others,

rights to designate a child’s primary residence, consent to medical and mental-health

care, and make decisions about the child’s education. See TEX. FAM. CODE

§ 151.001(a)(1), (6), (10). In the first three issues of her appeal, Mother contends

the trial court abused its discretion by modifying the agreed final decree to designate

Father as the parent with the exclusive right to exercise these rights for several

reasons, including that:

• there was no change to “the children’s welfare” that warranted her removal
as the parent with the right to designate the children’s primary residence;

• the only justification the trial court gave for the modifications—parental
conflict—does not suffice because she and Father had always disagreed
and the final decree designated tiebreakers for resolving disagreements;

• the trial court should have tried “less disruptive modifications,” such as
amending the tiebreaker provisions or awarding exclusive
decision-making rights to Mother; and

• the modifications are not in the children’s best interests.
Mother also argues that the trial court’s fact findings are deficient because

they do not specify the reasons for the modifications.

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A. General law on modification

The best interest of the child is always the primary consideration in issues of

conservatorship and possession of and access to the child. See TEX. FAM. CODE

§ 153.002. Relevant here, a court can modify the terms of conservatorship,

possession, or access if the movant shows (1) modification is “in the best interest of

the child” and (2) “the circumstances of the child, a conservator, or other party

affected by the order have materially and substantially changed” since the earlier of

rendition of the order or the signing of the mediated settlement agreement on which

the order is based. TEX. FAM. CODE § 156.101(a)(1).

The question of a material and substantial change concerns “all aspects of a

child’s physical, mental, emotional and moral well-being.” Snider v. Grey, 688

S.W.2d 602, 606–07 (Tex. App.—Corpus Christi-Edinburg 1985, writ dism’d). The

requested modification must be “somehow connected to the changed circumstance.”

Smith, 546 S.W.3d at 741. But the determination of a material and substantial

change is not confined by rigid guidelines; instead, it is fact specific. In re A.L.E.,

279 S.W.3d 424, 428–29 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[T]he

law does not prescribe any particular method for a showing of changed

circumstances, which may be established by circumstantial evidence.”).

The person seeking the modification must show the circumstances as they

existed when the prior order was signed. Nalley v. Quevedo, No. 01-20-00400-CV,

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2022 WL 1547780, at *8 (Tex. App.—Houston [1st Dist.] May 17, 2022, no pet.)

(mem. op.). “Without both historical and current evidence of the relevant

circumstances, ‘the court has nothing to compare and cannot determine whether a

change has occurred.’” Nellis v. Haynie, 596 S.W.3d 920, 926 (Tex. App.—Houston

[1st Dist.] 2020, no pet.) (quoting Ziefman, 212 S.W.3d at 594 n.1).

To review the best interest of the child, we rely on what are known as the

Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The

non-exhaustive factors include (1) the desires of the child, (2) the emotional and

physical needs of the child now and in the future, (3) the emotional and physical

danger to the child now and in the future, (4) the parental abilities of the individuals

seeking custody, (5) the programs available to assist these individuals to promote

the best interest of the child, (6) the plans for the child by the individuals seeking

custody, (7) the stability of the home or proposed placement, (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship

is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.

The trial court is not required to consider every factor, and although no single one is

controlling, a single factor may, in some instances, be sufficient to support a

best-interest finding. Ceniseros, 2018 WL 4265679, at *5.

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B. Modification of the right to designate the children’s primary residence

Mother contends the trial court was “wholly unjustified” in modifying the

agreed final decree to give Father the exclusive right to designate the children’s

primary residence. She asserts there is no evidence of “abuse, violence, drugs,

alcohol, endangerment, mistreatment, poisoning the children’s mind,” no evidence

of “any negative circumstance with respect to the children’s welfare,” no evidence

of a “change in [her] home surroundings,” and no evidence that she “became an

improper parent to exercise custody, like refusing to care for the children.”

We agree with Mother that there is no evidence she abused the children, was

violent, exposed the children to drugs or alcohol, allowed them to go hungry, or

engaged in any parental misconduct of that type. Evidence of such parental

misconduct would be relevant in a modification proceeding, but it is not required.

As noted, the law does not prescribe any particular method of showing changed

circumstances.4 See, e.g., In re R.R.K., No. 02-20-00302-CV, 2022 WL 1257136, at

*5 (Tex. App.—Fort Worth Apr. 28, 2022, no pet.) (mem. op.). And other events

4
Similarly, to the extent Mother argues the trial court must make a finding that
retaining her as the primary conservator would be injurious to the children, we
disagree. Earlier versions of the Family Code required showings that a modification
would be a positive improvement for the child and that retention of the current
conservator would be injurious, but the current version of the Family Code does not.
See In re J.J.L., No. 04-12-00038-CV, 2012 WL 3985798, at *1 (Tex. App.—San
Antonio Sept. 12, 2012, no pet.) (mem. op.). In the current version, the overriding
“best interest of the child” standard takes into consideration whether a modification
is appropriate. See id.; see also TEX. FAM. CODE § 156.101.

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may indicate a material and substantial change, such as the evolving needs of a child,

one parent impeding the other’s ability to participate in joint decisions for the child,

and one parent attempting to impair or interfere with a child’s relationship with the

other parent. See id. at *8–10; Arrendondo v. Betancourt, 383 S.W.3d 730, 734–35

(Tex. App.—Houston [14th Dist.] 2012, no pet.); Randle v. Randle, 700 S.W.2d 314,

316 (Tex. App.—Houston [1st Dist.] 1985, no writ).

There is no real dispute that A.P.L.’s and T.L.’s needs changed after the

divorce, as they got older. Although aging alone does not show changed

circumstances, developing needs may. See Randle, 700 S.W.2d at 316 (recognizing

that a child’s needs may change with age and justify modification of conservatorship

and that modification may bring stability for the child). Mother agreed at trial that

a “host” of evolving issues exists on the educational and medical front for both

children, as well as psychological and behavioral issues for A.P.L.

For example, after the agreed final decree was signed, A.P.L. increasingly

struggled with anxiety, focus, and behavior at school, was moved from a more

rigorous academic program to a remedial school, and now requires specific

interventions for ADHD. The record includes several examples of A.P.L.’s

behavioral issues, including disregarding teacher instructions, acting out during

class, making social-media posts both parents deemed inappropriate, and taking

22
suggestive photographs.5 Additionally, there is evidence that T.L.’s needs related to

his growth-hormone treatment and learning disabilities were evolving as he matured.

Mother asserts that the evidence of the children’s evolving needs goes

exclusively to a different parental right—the right to make medical, mental-health,

and education decisions—and cannot be the basis for eliminating her right to

designate the children’s primary residence. In support, she again cites Smith, which

held that a modification lifting all restrictions on international travel could not be

based solely on a mother’s desire for the child to attend a single funeral overseas.

See 546 S.W.3d at 742. But Smith allows modifications that are “somehow

connected to the changed circumstance.” See id. at 741–42.

There is a connection here, considering evidence that Mother sometimes

impaired Father’s ability to be informed about and contribute to decision-making

regarding the children’s physical health. Father testified that he offered to share in

the responsibility for making and taking the children to doctor’s appointments

because that was part of being involved in the children’s lives. Although he asked

Mother to notify him when the children had doctor’s appointments so that he had the

option to attend, she rarely did so in advance. And sometimes, he found out about

the appointments only after the fact. In his words, “When I don’t know before

5
Any suggestive photographs were not available as evidence at trial because Mother
deleted them. Father testified he had not seen them. Mother also required A.P.L.
to delete the problematic social-media posts.
23
something happens, I can’t be there.” Father also testified that Mother sometimes

acted unilaterally regarding the children’s medications—namely, that she stopped

giving A.P.L. asthma medication without consulting him, which he believed caused

A.P.L. to have an asthma attack, and gave T.L. extra doses of the growth hormone

without consulting Father about whether he had given the medication.6

The record also includes several examples of Mother disparaging Father in

correspondence with the children’s care providers, such as referring to Father as a

“heavy manipulator” in correspondence with Dr. Koush, suggesting to T.L.’s

endocrinologist that Father was not keeping up with the growth-hormone injections

and instead only giving “a shot on occasion, just to say to others that he gave him

growth hormone,” and claiming in emails with the Private School that Father was

seeking meetings to discuss A.P.L.’s needs as “legal maneuvers” to improve his

position for litigation.

Much of this evidence was disputed, with Mother presenting evidence that

Father had not actually made any effort to make medical appointments for the

children, was disinterested in attending appointments, and was the real obstacle to

the children’s wellbeing. But it was the trial court’s responsibility to resolve

conflicts in the evidence, and it could believe Father over Mother in doing so. See

6
Father admitted that A.P.L.’s asthma is “not as significant” now as it was around
the time of the attack, and she no longer takes the asthma medication.
24
City of Keller, 168 S.W.3d at 819. And this Court has recognized similar conduct

as being relevant to a modification in the right to designate a child’s primary

residence. See Epps v. Deboise, 537 S.W.3d 238, 246–47 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (in considering finding of “material and substantial change,”

evidence of mother’s interference with parental relationship impacting joint

decision-making on medical and psychological care through failures to notify father

of doctor’s visits and impairing his ability to be informed supported changing parent

with right to designate primary residence).

There is also evidence that Mother’s conduct interfered with Father’s

relationship with the children. See Champenoy v. Champenoy, No.

01-12-00668-CV, 2013 WL 3327328, at *4 (Tex. App.—Houston [1st Dist.] June

27, 2013, no pet.) (mem. op.) (“A course of conduct by one parent that hamper’s a

child’s opportunity to associate favorably with the other parent may suffice as

grounds for re-designating managing conservators.”). For example, there is

evidence that Mother involved the children in disagreements about possession

periods, discipline, and educational decisions, and questioned the children about the

time they spent with Father. There is evidence that Mother made it difficult for the

children to communicate with Father by confiscating phones he provided. And there

is evidence Mother deprived Father of time with the children by not being honest

about a tutor’s availability to see A.P.L. at times other than during Father’s

25
possession period, by directing tutoring to run long so that A.P.L. was late to softball

games and practices Father coached, and by scheduling activities like dance class

for A.P.L. during Father’s time without his consent. Father testified that for the two

years after the agreed final decree, Mother vacationed in Alabama with the children

on Father’s Day, even though the holiday was his to spend with the children and the

decree required Mother to transfer possession of the children at her Texas home. He

explained that, for one year, he traveled to Alabama to spend Father’s Day there, and

for another year, he flew to Alabama to retrieve T.L. Additionally, there is evidence

that Mother allowed her negative feelings toward Father to spill into view of the

children when she shot Father “the finger in front of T.L.” and slammed a car door.

Such conduct interfering with or impairing Father’s relationship with the

children supports modification of the right to designate the child’s primary

residence. See In re J.W.H., No. 14-09-00143-CV, 2010 WL 1541679, at *7 (Tex.

App.—Houston [14th Dist.] Apr. 20, 2010, no pet.) (mem .op.) (in considering

finding of “material and substantial change,” evidence of mother’s interference with

visitation rights and communication constituted “behavior hamper[ing] the

children’s opportunities to favorably associate with” father and supported changing

conservator with right to designate primary residence).

Again, much of this evidence was disputed, with Mother offering alternative

explanations. But the trial court was free to disbelieve her. See City of Keller, 168

26
S.W.3d at 819. As this case demonstrates, conservatorship decisions are intensely

fact driven and, oftentimes, difficult. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002).

The evidence was hotly contested, with the parties clashing over nearly all matters

of fact. Under the abuse-of-discretion standard, it is not our role to reconcile

disputed facts. We must defer to the factfinder who observed the witnesses’

demeanor and was in the best position to make credibility determinations. See In re

A.L.E., 279 S.W.3d at 427. A trial court does not abuse its discretion when, as here,

it bases its decision on conflicting evidence of a substantive and probative character.

See Townsend v. Vasquez, 569 S.W.3d 796, 808 (Tex. App.—Houston [1st Dist.]

2018, pet. denied). While the evidence was not one-sided, it is sufficient to support

the trial court’s finding of a material and substantial change warranting modification

of the right to designate the children’s primary residence. Mother’s evidence was

not so overwhelming as to make the trial court’s decision against the great weight

and preponderance of the evidence, clearly wrong, or manifestly unjust. See

Francis, 46 S.W.3d at 242.

We overrule that part of Mother’s first issue challenging the material and

substantial change element of the modification of the right to designate the primary

residence of the children.7

7
The evidence discussed above also supports the trial court’s more specific findings
that Mother and Father had “become unable to co-parent”; the tiebreakers “became
ineffective”; Mother had “exposed the children to hostility directed at [Father]” and
27
C. Modification of the right to make medical, mental-health, and education
decisions
Within her first issue, Mother also contends Father failed to prove a material

and substantial change required him to have exclusive decision-making rights as to

the children’s medical, mental-health, and educational needs. More specifically, she

asserts that Father failed to offer evidence of more than mere parental conflict and

disagreement over the children’s medical, mental-health, and educational needs,

which is insufficient to modify the agreed final decree.

But here, Father did not have to prove changed circumstances in connection

with these rights, because both he and Mother asserted in their respective pleadings

that a material and substantial change in the parties’ circumstances required

modification of their previous agreement on medical, mental-health, and education

decisions. See Hill v. Steinberger, 827 S.W.2d 58, 61 (Tex. App.—Houston [1st

Dist.] 1992, no writ) (“A judicial admission is conclusive on the party making it, and

it relieves the opposing party’s burden of proving the admitted fact[] and bars the

“attempted to minimize or thwart the children’s contact with [him]”; Mother and
Father’s relationship was “high-conflict, especially in the context of making
medical, psychiatric/psychological, and educational decisions for the children,” and
the “difficulty is primarily prompted by [Mother’s] disruptive and combative
conduct, which is inconsistent with good parenting”; and Father is “the parent most
likely to encourage a positive relationship with the other parent,” has “demonstrated
a desire, willingness, and ability to engage in proper communication and
cooperation with [Mother] regarding these decisions, which is consistent with good
co-parenting,” and “has demonstrated the ability” to make these decisions as in the
children’s best interest, while Mother has not.
28
admitting party from disputing it.”). These mutual allegations are judicial

admissions of a material and substantial change with respect to the rights they both

sought to modify. See, e.g., Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236,

at *4 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) (“If an appellant

filed her own petition to modify in the trial court and alleged a material and

substantial change in circumstances, her allegation constitutes a judicial admission

that a material and substantial change occurred.”); Burns v. Burns, 434 S.W.3d 223,

228 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (assertions in pleadings can

constitute judicial admissions).

Mother points to section 156.007 of the Family Code, asserting it prevents her

counterpetition from being a judicial admission of any fact. Section 156.007

provides:

A party who files a motion to modify an order . . . based on a material
and substantial change of circumstances may not be considered on that
basis alone to have admitted a material and substantial change of
circumstances regarding any other matter.

TEX. FAM. CODE § 156.007.8 We conclude the statute does not bar judicial

admissions of changed circumstances with respect to the specific rights a party seeks

to modify.

8
This provision applies to motions to modify filed on or after September 1, 2021.
See Act of June 4, 2021, 87th Leg., R.S., ch. 227, § 2–4, 2021 Tex. Sess. Law Serv.
506, 506. Mother’s counterpetition filed on September 27, 2021, is subject to
section 156.007.
29
Our primary objective in statutory interpretation is to ascertain and give effect

to legislative intent. Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015).

“We seek that intent first and foremost in the plain meaning of the text.” Id. Section

156.007’s plain language distinguishes between what is pleaded and what is not

through its instruction that a motion based on changed circumstances “may not be

considered on that basis alone to have admitted a material and substantial change of

circumstance regarding any other matter.” TEX. FAM. CODE § 156.007 (emphasis

added). Affording “other” its common meaning as “not the same,” the statute

protects a party from judicially admitting changed circumstances only as to “other”

rights they do not seek to modify. See, e.g., Other, MERRIAM-WEBSTER.COM,

https://www.merriam-webster.com/dictionary/other.

This construction of the statute is consistent with the pre-enactment law,

which the Legislature is presumed to know, recognizing that when a party pleads

changed circumstances as to one aspect of the parent-child relationship, there is no

admission of changed circumstances as to wholly different aspects. For example, in

Epps, a mother’s allegation of changed circumstances related to visitation and child

support was not a judicial admission of changed circumstances related to the child’s

primary residence. 537 S.W.3d at 245–46; see also In re J.C.J., No.

05-14-01449-CV, 2016 WL 345942, at *6 (Tex. App.—Dallas Jan. 28, 2016, no

30
pet.) (mem. op.) (allegation of material and substantial change for visitation was not

a judicial admission of material and substantial change for child support).

Relying on section 156.007’s plain language and the Epps precedent, we hold

Mother judicially admitted changed circumstances in connection with the right to

make medical, mental-health, and education decisions for the children, because she

sought to modify that right herself based on a material and substantial change.

However, she did not judicially admit changed circumstances regarding the right to

designate the children’s primary residence, because she did not seek to modify that

right.

Mother’s judicial admission disposes of her sufficiency-based complaint

about the trial court’s finding of a material and substantial change related to medical,

mental-health, and education decisions, but even if it did not, we do not agree that

the tiebreaker provisions in the agreed final decree compel a different conclusion.

The crux of Mother’s complaint is less about the evidence of changed circumstances

regarding the children’s medical, mental-health, and educational needs—as noted,

the trial revealed a host of evolving issues on the educational and medical front for

both children as well as behavioral issues for A.P.L.—and more about the trial

court’s appointment of Father as the exclusive decisionmaker. She argues the

evidence of the children’s evolving needs and parental conflict over how to handle

those circumstances cannot support making Father the exclusive decisionmaker,

31
because the parties had disagreed before the divorce, anticipated more disagreement

in the future, and thus included tiebreakers in the final decree.

In support, Mother cites this Court’s statement in Smith that, “[i]f a

circumstance was sufficiently contemplated at the time of an original agreement, its

eventuality is not a changed circumstance, but instead an anticipated circumstance

that cannot be evidence of a material or substantial change of circumstances.” 546

S.W.3d at 740. There, our Court held a mother’s desire to visit family in Kenya did

not justify the trial court’s modification allowing her to renew the child’s passport

because the parties knew before the divorce that the mother would eventually want

to travel abroad with the child yet did not address it in their decree. Id. In other

words, the desire to travel existed both at the time of divorce and during the

modification proceedings and thus was not a change of circumstance. Id.

Smith is distinguishable. Unlike here, there was no judicial admission of

changed circumstances as to the parental right at issue. It is true that Mother and

Father’s agreement to include tiebreaker provisions in the agreed final decree is

evidence that they knew conflict over the children’s medical, mental-health, and

educational needs could arise after their divorce. What is different, however, is the

undisputed evidence that the tiebreaking provisions failed in the time between the

agreed final decree and the modification proceedings. Mother and Father both

recognized at trial that the tiebreakers were not working, and so did the amicus

32
attorney. And more than one of the tie-breaking doctors declined to break ties or

continue with care for the children because of Mother’s and Father’s acrimony.

Mother agreed in her trial testimony that “any tiebreakers that [were] built into the

decree should be thrown out the window, because they failed miserably.”

We do not find support for Mother’s contention that the trial court had to try

something less disruptive, like modifying the tiebreaker provisions, before giving

Father the exclusive right to make medical, mental-health, and education decisions.

When the evidence shows that the parties are having trouble effectively

co-parenting, communicating, or reaching shared decisions, a trial court generally is

justified in selecting one parent as the exclusive decisionmaker to avoid conflict if

doing so is in the child’s best interest, which is a question we address below. See,

e.g., Coburn v. Moreland, 433 S.W.3d 809, 828 (Tex. App.—Austin 2014, no pet.)

(where parties had ongoing conflicts about child’s educational needs and activities,

court did not abuse its discretion in selecting one parent as exclusive decisionmaker).

We overrule that part of Mother’s first issue challenging the material and

substantial change element of the modification of the right to make medical,

mental-health, and education decisions.

D. Best interests of the children

The trial court retains broad discretion in crafting the rights and duties of each

conservator to promote the children’s best interests. See Lenz, 79 S.W.3d at 19–20;

33
Swaab v. Swaab, 282 S.W.3d 519, 532 (Tex. App.—Houston [14th Dist.] 2008, pet.

dism’d w.o.j.). The record evidence (even if conflicting) supports the trial court’s

decision that giving Father exclusive rights to designate the children’s primary

residence and to make medical, mental-health, and education decisions, and

reducing Mother’s time with the children, was in the children’s best interests.

It is clear both parents love the children, and the children love both parents.

As noted, there is no evidence of parental misconduct such as abuse, violence, or

neglect in either home. But it is undisputed that Mother and Father have been unable

to co-parent.9 Each party blamed the other for the conflict. And the trial court heard

overwhelming evidence of the parties’ dislike for one another and opposing views

on custody and possession, as well as their difficulties working together and with

care professionals to address the children’s individual needs, avoid making personal

attacks, and not interfere with the other’s relationship or time with the children.

Given this evidence, we cannot conclude the trial court abused its discretion in

selecting one parent as the exclusive decisionmaker to avoid further conflict and

provide a measure of stability for important decisions about the children’s medical,

mental-health, and educational needs. See Coburn, 433 S.W.3d at 827–28. Based

on the evidence, the trial court could reasonably conclude that it was in the children’s

9
The trial court’s finding that “[t]he parties are unlikely to reach agreements about
any issue that has a significant effect on the children’s health and welfare” is
unchallenged.
34
best interests for Father to be the decisionmaker as to these needs, as well as the

parent with the right to designate the children’s primary residence.

Mother contends that in ordering that the children live with Father, the trial

court ignored T.L.’s preference to stay with her. T.L. told the trial court everything

at home with Mother was “good” and admitted that he did not like “spending a lot

of time” with Father’s fiancée. But Mother’s argument overlooks A.P.L.’s

preference. She told the trial court that she wanted to live with Father in part because

of how Mother made her feel. A.P.L. explained that Mother sometimes made her

feel bad about herself, giving as one example Mother’s comment during a doctor’s

office visit about A.P.L. “gaining weight.” A.P.L. suggested that her negative

feelings about Mother’s comment contributed to weight loss of six pounds the next

week. Asked if she would want to simply flip the possession schedule to see Mother

as much as she was seeing Father, A.P.L. responded: “I want to have more time with

my dad.” It was within the trial court’s discretion to weigh both children’s

statements in making its conservatorship decisions. See City of Keller, 168 S.W.3d

at 819; see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (“The trial

court is given wide latitude in determining the best interests of a minor child.”).

Regarding the children’s welfare needs and the parents’ ability to meet those

needs, there is no doubt Mother was engaged with the children’s care providers and

attended more doctor’s and therapeutic appointments with the children than Father.

35
But there is some evidence that Mother prioritized her negative relationship with

Father in a way that contributed to lapses in the children’s medical and educational

care. For instance, there is evidence that Mother’s opposition to Father’s and the

Private School’s efforts to have A.P.L. undergo a psychoeducational evaluation

contributed to a delay of more than a year in diagnosing A.P.L. with ADHD, which

in turn made early intervention more difficult despite its importance and the impact

on A.P.L.’s quality of life. After the trial court ordered a medicine trial for A.P.L.,

Mother contacted Dr. Katic about stopping the trial on the second day, listing a

variety of negative symptoms A.P.L. was experiencing and then recorded A.P.L.

leaving a voicemail for Dr. Katic expressing the same symptoms. In response, Dr.

Katic suggested not continuing the medication and, instead of considering

alternative treatments, recommended that A.P.L. find a different psychiatrist.10

Based on this evidence, the trial court reasonably could have inferred that Mother

did not participate in good faith in the medication trial or that she delayed A.P.L.’s

access to treatment for her ADHD.

Even though it is conflicting, there is some evidence that Father accepted each

child’s diagnosis, supported medical and educational recommendations, and was

10
Other evidence suggested that Mother also refused to work cooperatively with
Father to promptly address some of the at-risk behavior she observed from A.P.L.
Although she complained that A.P.L. was making inappropriate social-media posts
at Father’s house, Mother waited until litigation began to provide Father copies of
the videos.
36
more willing to engage in proper communication about the children’s needs,

consistent with appropriate co-parenting. And at trial, Father showed himself

capable of recognizing Mother’s importance in the children’s lives, testifying that

Mother “means well,” “does good by the children,” and “wants the best.” In

contrast, Mother expressed her belief that she is more important to the children than

Father and was unconcerned during trial that she had not made any positive

statements about Father. Email and text messages between the parties further

suggest that Mother has called Father a “low life,” “an incompetent parent,” and

suggested he talk to his doctor about “his meds.” From this testimony, the trial court

could reasonably conclude that Father was better able to support a positive

co-parenting relationship in the future.

On this record, keeping in mind that the trial court was the sole decider of

witness demeanor and credibility, and under the highly deferential standard of

review applied in modification cases, we cannot conclude that the trial court abused

its discretion when it concluded, as between the parents, that Father would be better

suited to address the children’s unique needs and to create a positive co-parenting

dynamic, and that it was in the children’s best interests to give him the exclusive

rights to designate the children’s primary residence and make medical,

mental-health, and education decisions.

We overrule Mother’s second issue.

37
E. Additional fact findings

In connection with her complaints about the modification order, Mother

argues in her third issue that the trial court’s fact findings were deficient because

they were not specific enough. In particular, she asserts the trial court was required

to make specific findings explaining how each modification was connected to the

changed circumstances and in the children’s best interests.

In a bench trial, “any party may request the court to state in writing its findings

of fact and conclusions of law.” TEX. R. CIV. P. 296. If a party deems the court’s

findings and conclusions deficient in some respect, she may request “specified

additional or amended findings or conclusions.” TEX. R. CIV. P. 298. However, a

trial court is required to make findings only on ultimate or controlling issues.

Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ

denied). The ultimate or controlling issues in a modification proceeding are the best

interest of the child and whether the circumstances have materially and substantially

changed. See TEX. FAM. CODE § 156.101; In re B.W.S., No. 05-15-01207-CV, 2016

WL 7163866, at *5 (Tex. App.—Dallas Nov. 23, 2016, no pet.) (mem. op.). The

trial court made those and more findings here. Among other things, the trial court

found that “the circumstances of [Mother, Father, and the children had] materially

and substantially changed since the date” of the agreed final decree; that Mother and

Father had “become unable to co-parent to promote the children’s best interest”; that

38
the tiebreaker terms of the prior order [had] become ineffective”; that Mother

“exposed the children to hostility directed at” Father; that Mother “attempted to

minimize or thwart the children’s contact with” Father; that the relationship between

Mother and Father was “high-conflict . . . especially in the context of making

medical, psychiatric/psychological, and educational decisions” and that such

“difficulty [was] primarily prompted by [Mother’s] disruptive and combative

conduct, which was inconsistent with good co-parenting”; that Father was the parent

most likely to encourage a positive relationship with the other parent . . . consistent

with good co-parenting” and had “demonstrated an ability to make medical,

psychiatric/psychological, educational and other decisions for the children” that

were in the children’s best interests; and that it was in the best interest of the children

for Father to have the exclusive right to designate the children’s primary residence

and to make medical, psychiatric/psychological, and educational decisions.

The additional findings Mother requested “do no more than request

explanations of the court’s ruling in the case,” and thus were not required. See

Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex. App.—Houston [1st Dist.]

1985, writ ref’d n.r.e.); see also Stuckey Diamonds, Inc. v. Harris Cnty. Appraisal

Dist., 93 S.W.3d 212, 213 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(“Additional findings and conclusions are not required if they are merely

39
evidentiary, or aimed at tying down the court’s reasoning rather than its

conclusions.”).

We overrule Mother’s third issue.

IV. Attorney’s Fees

Section 109.001 of the Family Code provides the trial court discretion to make

“any order necessary to preserve and protect the safety and welfare” of the children

during an appeal in a suit affecting the parent-child relationship, including orders

requiring payment of reasonable and necessary attorney’s fees. TEX. FAM. CODE

§ 109.001(a)(5). Under this authority, the trial court entered a temporary order

requiring Mother to pay Father’s attorney’s fees—$103,006 for responding to her

post-trial emergency motion and $173,250 in conditional appellate fees—after

finding it was necessary and equitable to do so. In her petition for writ of mandamus

and appeal from the final modification order, Mother argues the temporary order is

(1) void because the trial court issued it prematurely, outside of a fixed, sixty-day

jurisdictional window, (2) void to the extent it awards fees the statute does not

authorize, and (3) not supported by evidence.

A. The temporary order is reviewable on appeal

There is a threshold question of whether Mother’s mandamus or appeal is the

appropriate vehicle to challenge the temporary order on attorney’s fees. Section

109.001(c) provides that “[a] temporary order rendered under this section is not

40
subject to interlocutory appeal.” TEX. FAM. CODE § 109.001(c). Although there was

a split of authority among the courts of appeals on the issue, this Court previously

construed subsection (c) to mean that a trial court’s ruling on a motion for temporary

orders pending appeal is reviewable only by mandamus. For example, Marcus v.

Smith involved an appeal from an order dismissing a suit to enforce an adjudication

of parentage, and the father included a complaint in his appeal about temporary

orders requiring him to pay the mother’s attorney’s fees under section 109.001. See

313 S.W.3d 408, 416 (Tex. App.—Houston [1st Dist.] 2009, no pet.). This Court

concluded it lacked jurisdiction to consider the complaint as part of the appeal;

instead, a related mandamus filed by the father was the means to challenge the order.

Id. at 415–16, 418.

The Legislature has since amended section 109.001 to add subsection (b–5),

which states, “A party may seek review of the trial court’s temporary order under

this section by: (1) petition for writ of mandamus; or (2) proper assignment in the

party’s brief.” TEX. FAM. CODE § 109.001(b–5) (amended in 2017). Given that a

party can challenge a trial court’s temporary order under section 109.001 by “proper

assignment in the party’s brief,” we construe subsection (c) as barring review of a

temporary order only through accelerated interlocutory appeal, but not as part of a

direct appeal from a final judgment. See, e.g., In re N.H.N., 580 S.W.3d 444–45

(Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding subsection (c) allows

41
temporary orders under section 109.001 to be challenged in direct appeal from final

judgment); In re Moore, 511 S.W.3d 278, 286 (Tex. App.—Dallas 2016, no pet.)

(same). To the extent Marcus or this Court’s other decisions hold that a temporary

order under section 109.001 is not reviewable as part of a direct appeal from a final

judgment, we consider that holding to be superseded by statute.

Because we can (and do) address the temporary order on attorney’s fees in

Mother’s appeal of the trial’s court final modification order, we deny Mother’s

petition for writ of mandamus, but consider the issues raised in that petition in

addressing her appellate argument. See Walker v. Packer, 827 S.W.2d 833, 840–41

(Tex. 1992) (orig. proceeding) (mandamus is inappropriate where relator has

adequate remedy by appeal); cf. In re Fuentes, 506 S.W.3d 586, 592 (Tex. App.—

Houston [1st Dist.] 2016, orig. proceeding) (mandamus review of temporary orders

entered under sister provision in TEX. FAM. CODE § 6.709 for preservation of

property during appeal is available only when review of order in conjunction with

appeal is not adequate).

B. The temporary order is not void for prematurity

Mother contends the trial court lacked jurisdiction to award Father any

attorney’s fees under section 109.001 and as a result, the order is void. Specifically,

she argues the temporary order is “void” because section 109.001 “has a strict

temporal limitation” that confers the trial court with jurisdiction to grant relief “only

42
after an appeal has been perfected and within 60 days thereafter.” Because here, the

trial court entered the temporary order before the purportedly jurisdictional window

opened with the filing of her notice of appeal, Mother contends the order is void.

Father disagrees the order was premature but asserts that, even if it were, we should

overrule Mother’s issue because any error in the order’s timing is not jurisdictional.

“Jurisdiction” refers to a court’s authority to adjudicate a case. Reiss v. Reiss,

118 S.W.3d 439, 443 (Tex. 2003). If a trial court lacks jurisdiction over the parties

or the subject matter or acts outside its capacity as a court, its order is “void.” Id. In

contrast, an order is merely “voidable” if it results from errors other than lack of

jurisdiction, such as actions that violate a statute, which may be corrected through

the ordinary appellate process or other proper proceedings. Id.; see Comm’n for

Lawyer Discipline v. Schaefer, 364 S.W.3d 831, 836 (Tex. 2012) (per curiam)

(violations of procedural rules, statutes, and constitutional requirements “generally

only result in a ‘voidable’ or erroneous judgment” rather than void judgment).

In civil cases, including cases under the Family Code, “[a] trial court retains

jurisdiction over a case for 30 days after it signs a final judgment or order.” Martin

v. Tex. Dep’t of Family & Protective Servs., 176 S.W.3d 390, 392 (Tex. App.—

Houston [1st Dist.] 2004, no pet.) (citing TEX. R. CIV. P. 329b(d)). When, as here, a

motion for new trial is timely filed, the trial court’s plenary power is extended until

43
thirty days after the motion is overruled by written order or operation of law,

whichever occurs first. TEX. R. CIV. P. 329b(e).

While the trial court still had plenary power, and before she filed her notice

of appeal, Mother filed a post-judgment motion expressing her intention to appeal

and requesting abatement of the modification order pending the appeal under section

109.001. In opposing Mother’s motion to abate, Father sought attorney’s fees under

the same statute to preserve and protect the children’s welfare during the anticipated

appeal, which the trial court awarded.

Section 109.001(a) provides:

(a) In a suit affecting the parent-child relationship, on the motion of
any party or on the court’s own motion and after notice and
hearing, the court may make any order necessary to preserve and
protect the safety and welfare of the child during the pendency
of an appeal as the court may deem necessary and equitable. In
addition to other matters, an order may:
...

(5) require payment of reasonable and necessary attorney’s
fees and expenses[.11]
TEX. FAM. CODE § 109.001(a)(5). Relevant here, the statute prescribes a timeline,

stating in subsection (b–2) that the “trial court retains jurisdiction to conduct a

11
Effective September 1, 2025, the Legislature amended section 109.001(a)(5) to
authorize awards of court costs in addition to attorney’s fees and expenses. See
2025 TEX. SESS. LAW SERV. Ch. 593 (H.B. 2524). No costs are at issue, and we
apply the version of the statute in effect when the trial court rendered the temporary
order.

44
hearing and sign a temporary order under this section until the 60th day after the date

any eligible party has filed a notice of appeal from final judgment under the Texas

Rules of Appellate Procedure.” Id. § 109.001(b–2).

Mother asserts that the phrase “during the pendency of the appeal” in

subsection (a) and the sixty-day deadline in subsection (b–2), read together, create a

jurisdictional window for the issuance of temporary orders that opens when any

eligible party files a notice of appeal from a final judgment and closes sixty days

later. Because the trial court entered the temporary order on attorney’s fees nine

days before Mother filed her notice of appeal, Mother contends the order is

premature, falls outside the jurisdictional window, and is thus void and must be

vacated.

Mother cites several cases in support of her statutory construction. See, e.g.,

Morris v. Veilleux, No. 03-22-00178-CV, 2023 WL 8191911, at *3 (Tex. App.—

Austin Nov. 28, 2023, no pet.) (mem. op.); In re Reardon, 514 S.W.3d 919, 924

(Tex. App.—Fort Worth 2017, orig. proceeding); Marcus, 313 S.W.3d at 416; In re

K.M., No. 02-04-00044-CV, 2004 WL 2569384, at *8 (Tex. App.—Fort Worth Nov.

12, 2004, pet. denied) (per curiam) (mem. op.). None of the cited cases involves a

section 109.001 order being declared void for prematurity. That is, in none of the

cited cases did a court determine when a trial court must first act under section

45
109.001. One case concerns when a trial court may last act under the statute and the

rest provide only general context without analysis or full consideration of the issue.

For instance, in Morris, the temporary order issued too late. There, the father

appealed a final divorce decree, and the mother moved under section 109.001 for the

father to pay her appellate attorney’s fees to preserve and protect the children’s

welfare. Morris, 2023 WL 8191911, at *3. The trial court initially denied the

request, stating that it “maintain[ed] plenary power and reserve[d] the right to award

attorney’s fees after” the appellate court ruled. Id. After the appellate court issued

its judgment and remanded the case to the trial court, the trial court awarded the

mother her appellate attorney’s fees. Id. The appellate court vacated the order,

noting that the statute’s plain purpose “is to ensure that, while the appeal is pending,

the children’s safety and welfare is preserved and protected.” Id. The court reasoned

that an order awarding fees after an appeal is “too late to protect and preserve the

children’s safety and welfare during the appeal’s pendency and no longer serves the

purpose underpinning” the statute. Id. (emphasis in original). Thus, while Morris

is instructive on when it is too late for the trial court to grant relief under section

109.001, it is not instructive on how early a trial court may act under the statute.

Likewise, the issue in Reardon was not the trial court’s jurisdiction to grant

relief under section 109.001. There, the father petitioned the appellate court for a

writ of prohibition to prevent the trial court from modifying a final order in a suit

46
affecting the parent-child relationship under Title 5, Subtitle B of the Family Code

while the appeal of that order was pending. Reardon, 514 S.W.3d at 921. The father

argued that allowing such a modification under Subtitle B would not only moot the

pending appeal but render section 109.001, under Subtitle A, meaningless. Id. at

923. While the appellate court generally described the window in which a trial court

may act under section 109.001 in answering this question and the interplay between

Subtitles A and B, a section 109.001 order was not the subject of the appeal. Id. at

924–25.

Mother also points to statements in K.M. and Marcus that a “temporary order

under section 109.001 is only appropriate if a final judgment has been signed and a

notice of appeal has been filed” as support for her contention that the trial court could

not order attorney’s fees before she appealed. See Marcus, 313 S.W.3d at 416; K.M.,

2004 WL 2569384, at *8. The sole authority Marcus cites for this statement is K.M.,

which in turn cites only the statute itself, without any analysis. See K.M., 2004 WL

2569384, at *8. Importantly, neither Marcus nor K.M. involved a question of the

trial court’s jurisdiction to enter temporary orders under section 109.001; rather,

they both concerned the appellate court’s jurisdiction to review such orders under

the previous version of the statute that prohibited accelerated interlocutory appeals

from section 109.001 orders. See Marcus, 313 S.W.3d at 416 (holding it lacked

jurisdiction to review section 109.001 order on direct appeal because the order was

47
interlocutory); K.M., 2004 WL 2569384, at *8 (same). While Marcus includes some

discussion on the merits of the section 109.001 order,12 the discussion is limited to

the sufficiency of the evidence supporting the necessity of attorney’s fees to preserve

and protect the safety and welfare of the child and the unconditional nature of the

fee award. 313 S.W.3d at 418. Accordingly, we conclude the statements Mother

relies on are dicta.13

Mother has not cited (nor have we found) any case holding that section

109.001’s language deprives the trial court of jurisdiction to issue a temporary order

before a party files a notice of appeal from a final judgment. Considering section

109.001 as a whole and the ordinary meaning of the words used, we conclude the

statutory language does not have that effect.

The plain purpose of section 109.001 is to preserve and protect the children’s

safety and welfare during an appeal in a suit affecting the parent-child relationship.

12
The court considered the temporary order on mandamus review. See Marcus, 313
S.W.3d at 418.
13
The same is true for the cases Mother cites on Family Code section 6.709, a parallel
statute authorizing orders necessary in divorce suits to preserve property or protect
the parties during an appeal. See TEX. FAM. CODE § 6.709. For instance, in Fuentes
v. Zaragoza, this Court referenced the extension of the trial court’s plenary power
under section 6.709 as a “jurisdictional window” that began to run when the
appellant “perfected his appeal.” 534 S.W.3d 658, 663 (Tex. App.—Houston [1st
Dist.] 2017, no pet.). But again, that statement was about calculating the final date
on which the trial court had jurisdiction to act under section 6.709, not the first. See
id. (holding appointment of receiver under section 6.709(a) was not authorized
because the order was issued after expiration of the 30-day jurisdictional limitation
in the statute).
48
Morris, 2023 WL 8191911, at *3. Nothing in the statute suggests that the phrase

“during the pendency of an appeal” in subsection (a) limits the court’s ability to act

only after a notice of appeal is filed. See TEX. FAM. CODE § 109.001(a). Instead,

the phrase relates to the immediately preceding phrase stating that the court may

make any order necessary to “preserve and protect the safety and welfare of the

child.” That is, as Father asserts, the phrase describes relief that a trial court may

deem “necessary” and “equitable” to grant relief that will “preserve and protect the

safety and welfare of the child during the pendency of an appeal.”

Mother’s argument that section 109.001(a) creates a limited 60-day

jurisdictional window that starts upon the filing of a notice of appeal is further

discounted by the fact the statute expressly states that the court retains jurisdiction

to act under the statute. Specifically, under subsection (b–2), the trial court “retains

jurisdiction” to conduct hearings and sign temporary orders granting such relief

“until the 60th day after the date any eligible party has filed a notice of appeal[.]”

TEX. FAM. CODE § 109.001(b–2). To “retain” means “to hold in possession or under

control; to keep and not lose, part with, or dismiss.” Retain, BLACK’S LAW

DICTIONARY (12th ed. 2024); see also Retain, MERRIAM-WEBSTER.COM,

http://merriam-webster.com/dictionary/retain (defining “retain” as to “keep in

possession or use” or “hold secure or intact”). And “until” is “used as a function

word to indicate continuance . . . to a specified time.” Until,

49
MERRIAM-WEBSTER.COM, http://merriam-webster.com/dictionary/until. Applying

the common understanding of these words, subsection (b–2) can be read only as

extending the power of the court to act under the statute, not as creating a

jurisdictional window that commences only upon the filing of a notice of appeal.

That is, subsection (b–2) prescribes how long the trial court’s jurisdiction extends

before it is lost, not when it begins. The Legislature saw fit to use language

indicating when the trial court’s jurisdiction under section 109.001 ends and could

have easily used language indicating that such jurisdiction begins when a notice of

appeal is filed but did not do so. See, e.g., Lippincott v. Whisenhunt, 462 S.W.3d

507, 509 (Tex. 2015) (per curiam) (“Had the Legislature intended to limit the Act to

publicly communicated speech, it could have easily added language to that

effect.”).14

We find nothing in section 109.001 that prescribes a consequence for an

allegedly premature order or that can be read as depriving the trial court of

jurisdiction to issue a temporary order after a final judgment has been issued but

14
We note that subsection (b–1) provides that a motion under section 109.001 “may
be filed before trial” and “may not be filed by a party after the date by which that
party is required to file the party’s notice of appeal[.]” See TEX. FAM. CODE
§ 109.001(b–1). While this does not pertain to when the trial court is supposed to
rule on the motion, it supports that section 109.001 is not something to put off unless
a notice of appeal is filed. Indeed, as we have discussed, Mother was the first party
to file a motion seeking section 109.001 relief, and she proceeded on the hearing on
her motion (and Father’s motion) before filing her notice of appeal.

50
before an appeal is perfected. See TEX. R. CIV. P. 329b(d), (e) (when a motion for

new trial is filed, trial court has plenary power until 105 days after judgment was

signed). Accordingly, we hold that the temporary order is not void for prematurity.

We overrule that part of Mother’s fourth issue complaining that the temporary order

was issued too early.

C. The temporary order is not void because it awards non-appellate fees
Mother also challenges the temporary order on attorney’s fees on a second

jurisdictional ground. She argues that the order is “void to the extent it awarded

[Father] past fees for responding to [her] emergency motion” because section

109.001 authorizes only appellate fees.

There is no dispute that some of the attorney’s fees the trial court ordered

Mother to pay are not appellate fees but instead are fees Father incurred before the

appeal in responding to Mother’s post-judgment motion to abate. Assuming without

deciding that the statute authorizes only appellate fees, Mother has offered no

authority for her contention that awarding fees other than for appellate work is a

jurisdictional defect that renders the order void rather than a non-jurisdictional error

that makes the order merely voidable.15 We find no support for that contention in

15
Both Mother and Father sought post-judgment attorney’s fees under section 109.001
in connection with Mother’s motion to abate. Having both requested post-judgment
fees, neither objected in the trial court to the availability of such fees under section
109.001.
51
either the plain language of section 109.001 or the case law. Instead, a trial court’s

order granting relief that is neither necessary to preserve and protect the children’s

welfare during an appeal nor equitable, including potentially attorney’s fees for work

performed before the appeal, is non-jurisdictional error that renders the order

voidable or erroneous rather than void. See In re Masonite Corp., 997 S.W.2d 194,

198 (Tex. 1999) (explaining that while the trial court’s transfer orders were an abuse

of discretion and thus erroneous they were not void because the mere fact that an

action of a trial court is contrary to a statute makes the action not void but voidable

or erroneous); see also Tex. Windstorm Ins. Ass’n v. Pruski, 689 S.W.3d 887, 893

(Tex. 2024) (“[F]ailure to comply with a statute, while it may render a judgment

erroneous and voidable, does not necessarily render the judgment void”); In re

Panchakarla, 602 S.W.3d 536, 540 (Tex. 2020) (per curiam) (“[A]s a general

proposition, we are hesitant to conclude that a trial court’s jurisdiction is curtailed

absent manifestation of legislative intent to that effect[.]”).

We overrule that part of Mother’s fourth issue complaining that the temporary

order is void to the extent it awarded past fees.

D. Sufficient evidence supports the equity and necessity of attorney’s fees
Mother next argues the temporary order on attorney’s fees is an abuse of the

trial court’s discretion because Father (1) judicially admitted there was no threat to

the children’s safety or welfare and (2) failed to present legally and factually

52
sufficient evidence that the fees he sought were equitable and necessary to preserve

or protect the children’s welfare during the appeal, as required by section 109.001.

Mother points to a statement in Father’s response to her motion to abate

disputing whether she could satisfy her burden to “show the current situation

threatens or endangers the safety or welfare of the children or that the relief she

requests would be appropriate, much less necessary.” In her motion to abate, Mother

specifically alleged that Father had not met the children’s medical and educational

needs since rendition and specifically asked the trial court to temporarily restore her

right to make decisions in those areas, give her more time with the children, and

order A.P.L.’s enrollment at the specific public school A.P.L. preferred. Father’s

response putting Mother to her burden to show the necessity of such relief under the

statute is not a judicial admission that the attorney’s fees he sought were

unnecessary. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936

S.W.2d 275, 278 (Tex. 1996) (per curiam) (judicial admission must be clear,

deliberate, and unequivocal).

As the party moving for the award under section 109.001, Father had the

burden to prove the attorney’s fees were equitable and necessary to preserve and

protect the children’s safety and welfare during the appeal. See TEX. FAM. CODE

§ 109.001(a); McCain v. McCain, 636 S.W.3d 679, 684 (Tex. App.—Austin 2021,

53
no pet.). After reviewing the record, we conclude the trial court’s decision to award

Father attorney’s fees was not arbitrary or unreasonable considering the evidence.

Mother asserts Father did not prove that “he could not afford to pay for his

portion of the children’s basic needs or that the children would lack any necessity if

the trial court did not award him” attorney’s fees. She emphasizes the trial court’s

finding in the modification proceeding that Father did not need child support and no

longer has to pay it himself as well as Father’s own testimony that he earns about

$250,000 per year, had a contract to sell his home for more than $1 million, and had

moved into a new home that he was not financially responsible for after remarrying.

She draws a contrast between this evidence of Father’s resources and her own,

pointing to the trial court’s earlier finding that she “has no stable source of income

or resources” and has relied on family to pay her own attorneys and her own

testimony that she had also borrowed money and could not pay for the legal fees for

bringing her motion to abate. In Mother’s view, this contrast compelled a conclusion

that Father could afford to pay his own attorney’s fees, but she could not.

We disagree that the trial court’s finding in the modification proceeding that

Father can provide for the children without the amount of support Mother would pay

under the child-support guidelines precludes a subsequent finding that the financial

strain of continued litigation jeopardizes Father’s ability to meet the children’s

welfare needs during the appeal. Since rendition, Father has had primary

54
responsibility for the children, who each require the service of various tutors,

therapists, and other specialists to address unique medical needs and learning

differences. Father testified that he is “in debt up to [his] eyeballs” and owes more

than $200,000 in family loans and credit-card debt from the litigation, and his

attorney testified that Father would incur another $173,250 in fees to defend the

modification order as in the best interests of the children on appeal.

Despite working two jobs to earn about $250,000 per year, Father described

the financial impact of the ongoing litigation as “significant” on the children. He

testified that he had to use savings intended for the children’s college expenses to

pay for the litigation. He testified that insurance coverage for T.L.’s growth

hormone was becoming more difficult and he could not afford to pay his portion of

the cost out of pocket. And he was not making payments on the new family home

because he could not afford to do so. Father also points to Mother’s testimony in

the modification proceedings that she had paid off the mortgage on her home and

receives money from her family for living expenses and attorney’s fees (even though

she described those funds as a loan).

The trial court could believe Father and disbelieve Mother. See City of Keller,

168 S.W.3d at 819. Viewed in the appropriate light, the evidence was legally and

factually sufficient to support the exercise of the trial court’s broad discretion to

deem an award of attorney’s fees to Father both equitable and necessary to preserve

55
and protect the children’s safety and welfare during the appeal. See Marcus, 313

S.W.3d at 418 (affirming award for recipient who had primary responsibility for

caring for child and child’s principal home, a “lack of funds,” and “still owe[d] [her

attorney] money”); see also McCain, 636 S.W.3d at 685 (affirming award for

recipient who, despite living with her parents for free, could not pay to defend appeal

after borrowing to pay trial counsel’s retainer and incurring $50,000 for trial court

proceedings). The trial court’s decision to award the fees was neither arbitrary nor

unreasonable.

We overrule that part of Mother’s fourth issue challenging the temporary

order on attorney’s fees as unsupported by the evidence.16

16
To the extent Mother’s fourth issue asserts the trial court abused its discretion by
awarding attorney’s fees as a sanction against Mother, the record does not support
that the fees were awarded as a sanction. Although Father requested fees
alternatively under Texas Rule of Civil Procedure 13 and Chapter 10 of the Civil
Practice and Remedies Code, the temporary order expressly granted relief under
section 109.001 only. See TEX. CIV. PRAC. & REM. CODE § 10.001–.006 (frivolous
pleadings); TEX. R. CIV. P. 13 (groundless pleadings).
56
V. Conclusion

For the reasons above, we deny Mother’s petition for writ of mandamus and

affirm the trial court’s judgment.

Andrew Johnson
Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

57