In the Interest of M.E.R. and G.K.R., Children v. the State of Texas

Opinion filed March 6, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00263-CV
__________

IN THE INTEREST OF M.E.R. AND G.K.R., CHILDREN

On Appeal from the 318th District Court
Midland County, Texas
Trial Court Cause No. FM68223

MEMORANDUM OPINION
Appellant Miguel Ramirez, the father of seven-year-old M.E.R. and five-year-
old G.K.R., filed a petition to modify the parent-child relationship, seeking
(1) modification of the geographic restriction on Appellee Kimberly Ramirez’s
exclusive right to designate the primary residence of their children and (2) to have
his increased travel expenses allocated between the parties due to Kimberly’s change
of residence. Kimberly, the mother of the children, filed a counterpetition to modify
the parent-child relationship, requesting that she be appointed sole managing
conservator and that Miguel’s visits with the children be supervised. The trial court
denied both petitions to modify. In four issues, Miguel challenges the trial court’s
order denying his requested modifications, arguing that (1) the trial court erred in
concluding that Miguel did not show that circumstances have “materially or
substantially changed” despite Kimberly’s judicial admission; (2) alternatively, the
trial court’s finding that the distance between Midland and Houston “does not by
itself constitute a material and substantial change” was against the overwhelming
weight of the evidence and was clearly wrong and unjust; (3) the trial court abused
its discretion by reaching the merits of and refusing Appellant’s request to modify
the geographic restriction; and (4) the trial court “erroneously denied Miguel’s
claims for reimbursement” for travel costs. We affirm.
Factual and Procedural History
Miguel filed his petition to modify the parent-child relationship on July 19,
2023. Miguel sought to narrow the previous state-wide geographic restriction for
the children’s residence to only Midland County or, alternatively, to request
modification “in a manner that the [trial court] deems is in the best interest of the
children.” Miguel also sought to have his increased travel expenses allocated
between the parties due to Kimberly’s change of residence. Kimberly filed her
counterpetition to modify the parent-child relationship on October 10, 2023.
Kimberly sought appointment as the children’s sole managing conservator and
requested that Miguel be appointed as possessory conservator of the children with
supervised visitations. Both parties generally alleged that “[t]he circumstances of
the children, a conservator, or other party affected by the order” had materially and
substantially changed since the rendition of the order—a divorce decree that was
signed and entered after a jury trial on the issue of conservatorship. The trial court
held a single-day bench trial on the petitions, and the following evidence was
presented.

2
Kimberly testified that she was recently promoted to lead global projects
advisor for Chevron and now resided in Houston. Kimberly explained that she had
spent her entire career working with Chevron, beginning as a contractor in 2007.
Between November 2020 and June 2023, Kimberly was an operations lead for
Chevron in Midland. According to Kimberly, when she and Miguel first moved to
Midland due to her work with Chevron, they discussed that the move was likely
temporary, and that they would likely be moving to Houston next. Kimberly notified
Miguel of her pending move to Houston in July through a notice to the trial court.
She moved into her home in Houston August 4, 2023. Kimberly’s promotion
provided her the ability to work on a hybrid schedule, generally requiring her to be
in the office Tuesday through Thursday and work from home on Monday and Friday.
Kimberly explained that she was not able to negotiate working remotely from
Midland in her new position because she “need[ed] to be connected to the leadership
of [the] business unit in Houston.”
According to Kimberly, the children suffered from “standard airborne
allergies,” but nothing more, other than experiencing chronic ear infections in the
past. M.E.R. and G.K.R. lived in Midland for about four and one-half years before
Kimberly moved to Houston with them. Since Kimberly’s move, Miguel had been
picking up the children on Saturdays for his visits and returning them to Kimberly
on Sundays. Miguel picked them up on Friday on one occasion. Prior to the move,
Miguel would generally “exercise every Thursday night visitation.” Kimberly
explained that the children “come back aggressive and in not a great state” after their
visits with Miguel.
Kimberly testified that she requested that Miguel be appointed possessory
conservator with supervised visitations because he placed the children into therapy
immediately after receiving her notice of promotion, and she believes Miguel
fabricated allegations of sexual abuse against the children by her stepfather.
3
According to Kimberly, she only discovered that such allegations were made when
investigators from the Department of Family and Protective Services showed up to
her home several months later. Kimberly also requested that Miguel’s visits be
supervised because they had a negative impact on the children, beginning before her
move, when teachers notified her that Fridays after Miguel’s Thursday visits were
“always a rough day.”
Miguel testified that after notifying the children about the move to Houston,
they exhibited signs of stress and anxiety, including, crying, hiding in the corner,
and wetting the bed. That prompted Miguel to enroll the children in counseling.
Miguel testified that he believed a geographic restriction limited to Midland County
would be in the children’s best interest and believed that was possible because
Kimberly testified that she could work remotely. Miguel also testified that he could
hire a full-time nanny.
Modupe Bajomo is a licensed professional counselor in Midland. Bajomo
testified that she met with the children four times over a one-week period in July
while they were in Miguel’s care. Bajomo explained that G.K.R., who was four
years old at the time, “expressed that he does not like his mother and he wants to
stay with his father,” and stated that he was “going to fight his mom.” Bajomo
testified that G.K.R. stated that he does not like to go with his mother because she
does not give him enough candy and she tells him to go to bed instead of letting him
watch television. While in Bajomo’s playroom during a session, M.E.R. “said his
grandfather had pretend touch [sic].”1 Bajomo had no opinion on what is in the
children’s best interest regarding where they reside.

1
Bajomo did not provide any further explanation as to what “pretend touch” entailed or when or
where it would have occurred because M.E.R. “couldn’t remember anything about it” and “[t]hat is all
[M.E.R.] said.”
4
Miguel testified that his entire family, except for his children, lived in
Columbia. Miguel explained that he met Kimberly in California, she began interning
with Chevron and then she was offered a job. The couple enrolled in “Chevron’s
mobile traveling family plan,” moved to Pennsylvania, and then moved to Midland.
Prior to Kimberly and Miguel’s divorce, Miguel was a stay-at-home father.
Kimberly stated that the children did “[l]ots of different things” when they lived in
Midland, including school, church, and extracurricular activities. Miguel testified
that he now works full-time for AT&T, with optional overtime. Miguel purchased
his own home to provide the children with a place close to their friends, school,
parks, and doctors. Prior to Kimberly’s move to Houston, Miguel played music with
the children regularly in his home’s music room. However, he has not been able to
do so since the move.
Miguel testified that he had tried to discuss Kimberly’s move with her but that
she would not respond to him. Although Miguel has investigated the possibility of
transferring to Houston, he explained that “Houston is a saturated market,” and it
would be up to two years before he would be eligible for transfer. Miguel confirmed
that he is bilingual, has a college degree and has worked in law enforcement,
teaching music, and as a real estate agent before becoming a stay-at-home father.
Since the move, Miguel has not been able to spend as much time with the children.
Now he drives from Midland to Houston Friday evening, picks the children up
Saturday morning, and returns them on Sunday. According to Miguel, he spends
approximately $1,000 per trip to Houston, although he did not provide any
documentation regarding his expenditures. Although Miguel will now have
possession of the children every spring break and over an extended summer
visitation, he is no longer able to have lunch with the children at school on Thursdays
nor exercise his usual Thursday evening visitation. Miguel explained that he “took

5
Thursdays off to spend the whole day with [the children] and the whole night and
take them to school Friday mornings.”
The trial court denied both parties’ petitions for modification and issued
findings of facts and conclusions of law.
Standard of Review
Because the trial court is vested with broad discretion in making decisions in
suits to modify child custody, possession, and visitation, we review the trial court’s
decisions for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982); In re A.J.E., 372 S.W.3d 696, 698 (Tex. App.—Eastland 2012, no pet.);
see also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its
discretion if it acts unreasonably, arbitrarily, or without reference to guiding
principles or when it fails to correctly analyze or apply the law. See J.A.J., 243
S.W.3d at 616; A.J.E., 372 S.W.3d at 698.
“A trial court’s findings of fact have the same force and dignity as a jury’s
answers to jury questions and are reviewable for legal and factual sufficiency of the
evidence to support them by the same standards.” In re A.E.A., 406 S.W.3d 404,
414 (Tex. App.—Fort Worth 2013, no pet.). “Unchallenged findings of fact are
binding on this Court unless the contrary is established as a matter of law or there is
no evidence to support the finding.” In re H.N.T., 367 S.W.3d 901, 903 (Tex. App.—
Dallas 2012, no pet.) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.
1986)).
Legal and factual sufficiency challenges are not independent grounds of error
in family law cases, but rather are factors that we use to determine whether the trial
court abused its discretion. In re E.R.D., 671 S.W.3d 682, 686–87 (Tex. App.—
Eastland 2023, no pet.); A.J.E., 372 S.W.3d at 698. In determining whether the trial
court abused its discretion, we consider whether it had sufficient information upon
which to exercise its discretion and, if so, whether it erred in the application of that
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discretion. A.J.E., 372 S.W.3d at 698–99 (citing In re T.D.C., 91 S.W.3d 865, 872
(Tex. App.—Fort Worth 2002, pet. denied)). In conducting our analysis, the
sufficiency-of-the-evidence review is part of the first inquiry. Id. at 699. After we
evaluate the sufficiency of the evidence, we consider whether, based on that
evidence, the trial court made a reasonable decision. Id.
When a party attacks the legal sufficiency of an adverse finding on which he
had the burden of proof, he must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of his proposed disposition.
In re T.K.D-H., 439 S.W.3d 473, 481 (Tex. App.—San Antonio 2014, no pet.)
(citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam));
see Moore v. Moore, 568 S.W.3d 725, 730 (Tex. App.—Eastland 2019, no pet.). A
party challenging the factual sufficiency of an adverse finding on an issue on which
it has the burden of proof must demonstrate on appeal that the evidence is so weak
or the adverse finding “is so against the great weight and preponderance of the
evidence that it is clearly wrong and unjust.” T.K.D-H., 439 S.W.3d at 482 (citing
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)); Dow Chem., 46 S.W.3d
at 242; Moore, 568 S.W.3d at 730.
We are mindful that conservatorship determinations are “intensely fact
driven,” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002), and that “[t]he trial court is in
a better position to determine what will be in the best interest of the child since it
faced the parties and their witnesses, observed their demeanor, and had the
opportunity to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d
740, 743 (Tex. App.—Austin 2005, pet. denied); see also Pore v. Ellis, No. 03-20-
00550-CV, 2021 WL 5095496, at *3 (Tex. App.—Austin Nov. 3, 2021, no pet.)
(mem. op.) (“A factfinder’s decision on conflicts in the evidence is generally viewed
as conclusive.”). Thus, a trial court does not abuse its discretion when it bases its
decision on conflicting evidence so long as there is some substantive and probative
7
evidence that supports its decision. E.R.D., 671 S.W.3d at 687; In re J.H.C., No. 11-
17-00187-CV, 2019 WL 2557542, at *6 (Tex. App.—Eastland June 20, 2019)
(mem. op.); In re A.J.E., 372 S.W.3d at 699.
Geographic Restriction
A. Applicable Law
A trial court may modify an order that provides for conservatorship, support,
or possession of or access to children if the modification is in the children’s best
interest and the circumstances of a child or conservator have materially and
substantially changed since the rendition of the order. TEX. FAM. CODE ANN.
§ 156.101(a)(1)(A) (West 2014); see In re J.R.P., 526 S.W.3d 770, 778 (Tex. App.—
Houston [14th Dist.] 2017, no pet.); see also In re L.T.M., No. 11-15-00311-CV,
2016 WL 7650555, at *2 (Tex. App.—Eastland Dec. 30, 2016, no pet.) (mem. op.)
(“The party that wants the custody changed bears the burden to establish that both a
material and substantial change in circumstances occurred and that the change is in
the child’s best interest.”). With respect to the best interest of a child, no unique set
of factors need be proved. In re L.C.C., 667 S.W.3d 510, 513 (Tex. App.—Eastland
2023, pet. denied); In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010,
pet. denied). In fact, the trial court may consider a variety of factors in making its
best interest determination. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
“Proof of best interest is not limited to [the Holley] factors,2 nor do all factors always
apply in every case.” In re S.A.H., 420 S.W.3d 911, 926 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). In other words, evidence of each Holley factor is not required

2
The Holley factors include, but are not limited to the following: (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
these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent that 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. Holley, 544 S.W.2d at 371–72.
8
to support a best interest finding. In re J.S., 687 S.W.3d 541, 547 (Tex. App.—
Eastland 2024, no pet.). Although no single factor is controlling, evidence of a single
factor may, in some instances, be sufficient to support the trial court’s best-interest
finding. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.).
Consistent with Texas’s public policy to ensure that children have frequent
and continuing contact with fit parents, courts are permitted to impose geographic
restrictions on the designation of a child’s primary residence. Guion v. Guion, 597
S.W.3d 899, 908 (Tex. App.—Houston [1st Dist.] 2020, no pet.). However, while
authorized to impose geographic restrictions, courts are not obligated to do so. Id.
The Supreme Court of Texas identified a variety of factors to consider in a trial
court’s determination of a child’s best interest when a parent seeks to relocate. Lenz,
79 S.W.3d at 14–16. Those factors include the (1) reasons for and against the move,
(2) education, health, and leisure opportunities afforded by the move,
(3) accommodation of the children’s special needs or talents, (4) effect of extended
family relationships, (5) effect on visitation and communication with the
noncustodial parent, (6) noncustodial parent’s ability to relocate, and (7) children’s
ages. Id.; In re M.A.M., 346 S.W.3d 10, 15 (Tex. App.—Dallas 2011, pet. denied).
Whether a material and substantial change in circumstances has occurred is a
fact-specific determination and must be made according to the circumstances as they
arise. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (citing Zeifman v. Michels, 212 S.W.3d 582, 589, 593 (Tex. App.—Austin
2006, pet. denied)). Thus, the trial court is not bound by a rigid or definite set of
guidelines. Id. Some changes that have been considered material include
“(1) marriage of one of the parties, (2) poisoning of the child’s mind by one of the
parties, (3) change in the home surroundings, (4) mistreatment of the child by a
parent or step-parent, or (5) a parent’s [sic] becoming an improper person to exercise
custody.” Id. at 428–29.
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B. Analysis
Even if we assume, without deciding, that either of Miguel’s first or second
issues regarding Kimberly’s move and her alleged admission of a material and
substantial change have merit, our conclusion as to his third issue is dispositive of
this appeal: he cannot overcome the trial court’s finding that modification is not in
the children’s best interest. 3 See FAM. § 156.101(a) (requiring both a material and
substantial change and that the modification would be in the children’s best
interests); J.R.P., 526 S.W.3d at 778.
In his third issue, Miguel argues that the trial court abused its discretion by
declining to modify the geographic restrictions encompassed within Kimberly’s
right to designate the children’s primary residence.
Miguel sweepingly argues that the trial court “erred in reaching the merits of
the case because it had already concluded that there was no material and substantial
change in circumstances.” In other words, Miguel posits that the trial court was
precluded from determining that the requested geographic restriction was not in the
children’s best interest because it had already determined that Kimberly’s move did
not constitute a material and substantial change in circumstances. However, Miguel
provides no authority to support his argument and, likewise, we are unable to find
any. Accordingly, we address whether the trial court abused its discretion by

3
That Miguel would succeed on his first or second issues is less than certain. Although some of
our sister courts have held that such a pleading constitutes a judicial admission, we have not had the
occasion to consider it, and we do not do so now. See, e.g., In re V.K.H.H., 647 S.W.3d 476, 479 (Tex.
App.—Texarkana 2022, no pet.); A.E.A., 406 S.W.3d at 410. Moreover, based on the notice-pleading
standard, we cannot be sure that Miguel and Kimberly alleged the same facts as a basis for their claims of
a material and substantial change, as neither party specified the facts supporting their claim in their petition.
See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see also TEX. R. CIV. P. 45,
47(a). By way of analogy, if both parties allege that a breach of contract occurred by the other party but in
different ways, each has not necessarily judicially admitted that a breach of contract occurred, nor would
they be alleviated from proving the particular breach alleged. Further, the fact that a parent has moved does
not necessarily constitute a material and substantial change. See Bates v. Tesar, 81 S.W.3d 411, 430 (Tex.
App.—El Paso 2002, no pet.); see also In re E.M., No. 02-18-00351-CV, 2019 WL 2635565, at *7 (Tex.
App.—Fort Worth June 27, 2019, no pet.) (mem. op.).
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determining that it is not in the children’s best interest to modify the geographical
restriction of their primary residence.
We note that evidence of several of the Holley and Lenz factors is not set out
in the record. See Holley, 544 S.W.2d at 371–72; Lenz, 79 S.W.3d at 14–16; see
also A.J.E., 372 S.W.3d at 698–99 (noting the first step in the review is to determine
whether the trial court had sufficient information on which it based its decision). In
this regard, no evidence was presented regarding whether the children possessed any
exceptional or physical needs, whether the children were in any physical danger,
whether there were programs available to assist either parent to promote the best
interest of the children, whether any parent had any excuse for any acts or omissions
indicating the parent-child relationship was not a proper one, the education, health,
and leisure opportunities afforded by the move, accommodation of the children’s
special needs or talents, the effect of extended family relationships, or the desires
of the children.4 See Holley, 544 S.W.2d at 371–72; Lenz, 79 S.W.3d at 14–16.
Accordingly, we cannot say that the trial court possessed sufficient information to
grant Miguel’s requested modification. A.J.E., 372 S.W.3d at 698–99; see also
Coburn v. Moreland, 433 S.W.3d 809, 827 (Tex. App.—Austin 2014, no pet.) (“The
party seeking modification has the burden to establish these elements by a
preponderance of the evidence.”). We review the trial court’s ruling based on the
evidence available to it. See, e.g., J.S., 687 S.W.3d at 547.

4
We note that Bajomo did testify that G.K.R. stated that he did not want to go with his mother
because she did not give him enough candy and makes him go to bed instead of staying up to watch
television. However, that information alone is insufficient to determine G.K.R.’s actual desires, let alone
M.E.R.’s. See In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (noting that
a child too young to express their desires renders the first Holley factor neutral in the termination context);
see also In re M.M.M., No. 01-17-00980-CV, 2018 WL 1954178, at *16 (Tex. App.—Houston [1st Dist.]
Apr. 26, 2018, pet. denied) (mem. op.) (noting that children ages one and four were too young too
adequately express their desires in the termination of parental rights context). Additionally, many of the
Holley factors do not apply in this case. See S.A.H., 420 S.W.3d at 926 (noting that not every Holley factor
will apply to every case).
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As to the fifth Lenz factor, Miguel argues that the evidence weighs “heavily
in favor of restricting the children’s primary residence to Midland County, Texas,”
by contrasting his involvement with the children, their education, and extracurricular
activities before the move to Houston, with his compelled reduction in involvement
after the move. However, the trial court specifically found that Miguel’s relationship
with the children, including the nature and quantity of visits, did not support
Miguel’s requested modification. Miguel implicitly challenges this finding as
factually and legally insufficient. See In re L.A.F., 270 S.W.3d 735, 739 (Tex.
App.—Dallas 2008, pet. denied). In this vein, Miguel is required to show that the
evidence presented at trial establishes all the vital facts necessary for his proposed
disposition as a matter of law. See T.K.D-H., 439 S.W.3d at 481–82; Dow Chem.,
46 S.W.3d at 241–42. From the record before us, including the children’s continued
financial support and relationship with Kimberly, we cannot say that the evidence
conclusively established that Miguel’s requested geographical restriction to Midland
County is in the children’s best interest. See T.K.D-H., 439 S.W.3d at 481–82; see
also J.H.C., 2019 WL 2557542, at *6 (noting that suit affecting the parent-child
relationship (SAPCR) is intensely fact driven and that the trial court is in a better
position to assess the witnesses’ demeanor and thus credibility).
Moreover, the trial court found that the existing visitation provisions
“adequately preserve[d] the relationship between [Miguel] and his children.” See
Lenz, 79 S.W.3d 14–16. Here, although Miguel testified that he did not get the
children until Saturday morning due to travel time, 5 he testified that he previously
took “all day Thursday” off to spend the day and night with the children—Miguel
did not explain why he could not take Friday off for travel to see the children. See

5
The record does not clarify whether Miguel exercised his weekend on the first, third, and fifth
weekend of each month or one weekend per month, as provided in the standard possession order when
conservators reside more than one hundred miles apart. See FAM. § 153.313(1).
12
Dow Chem., 46 S.W.3d at 242; Moore, 568 S.W.3d at 730. Further, Miguel agreed
that he would have every spring break and longer summer visitation due to the move.
See FAM. § 153.313(2), (3).
As to the first Lenz factor, the trial court found that Kimberly had a good faith
motive for the move and that her reasons supported the move while Miguel’s
opposition did not support his requested modification. See Lenz, 79 S.W.3d 14–16.
Importantly, Miguel did not challenge this finding. Kimberly’s expressed
reasoning—a job promotion and pay raise—supports the trial court’s finding. See
Lenz, 79 S.W.3d 14–16. Similarly, Miguel did not challenge the trial court’s finding
regarding the sixth Lenz factor: that “[t]here was some evidence that [Miguel] could
relocate to Houston, Texas.” See id. As for the evidence supporting this factor,
Miguel testified that he has a bachelor’s degree, is bilingual, and previously worked
in real estate, law enforcement, and teaching music. See id. Additionally, Miguel
explained that he would be able to transfer to Houston with his current employer,
although it may be up to two years before he is eligible. See id. Because there is
evidence in the record to support this, we are bound by the trial court’s finding of
these facts to uphold its decision to deny Miguel’s request for a modified
geographical restriction. See H.N.T., 367 S.W.3d at 903 (noting that we are bound
by unchallenged findings of fact unless there is no evidence to support the finding).
Ultimately, reviewing the evidence in the record pursuant to the Holley and
Lenz factors, Miguel did not demonstrate on appeal that the evidence establishes, as
a matter of law, all vital facts in support of his proposed disposition or that the
finding was against the great weight and preponderance of the evidence and thus
clearly wrong and unjust. See T.K.D-H., 439 S.W.3d at 481–82; Dow Chem., 46
S.W.3d at 241–42; Moore, 568 S.W.3d at 730. And, because there is some evidence
of a substantive and probative character that supports the trial court’s decision, we

13
conclude that the trial court did not abuse its discretion when it denied Appellant’s
petition to modify. E.R.D., 671 S.W.3d at 687. Appellant’s third issue is overruled.
Because we affirm the trial court’s denial of Miguel’s motion to modify the
geographical restriction on his third issue, which is determinative of his first two
issues, we do not further address them here. See FAM. § 156.101(a) (requiring both
a material and substantial change and that the modification would be in the children’s
best interests); J.R.P., 526 S.W.3d at 778; see also TEX. R. APP. P. 47.1.
Travel Expenses
A. Applicable Law
“If a change of residence results in increased expenses for a party having
possession of or access to a child, the court may render appropriate orders to allocate
those increased expenses on a fair and equitable basis, taking into account the cause
of the increased expenses and the best interest of the child.” FAM. § 156.103(a); see
also In re M.U.C.O., No. 04-21-00280-CV, 2022 WL 3638255, at *8 (Tex. App.—
San Antonio Aug. 24, 2022, no pet.) (mem. op.) (noting that the statute states that
the trial court “may” render an order to allocate the expenses, thus granting the trial
court “discretion to render orders allocating expenses on a fair and equitable basis
in the best interest of the child”). “The payment of increased expenses by the party
whose residence is changed is rebuttably presumed to be in the best interest of the
child.” FAM. § 156.103(b).
B. Analysis
In Miguel’s fourth issue, he argues that the trial court erred by denying his
request that his travel expenses for the visits be allocated between he and Kimberly.
Miguel focuses on his testimony that each trip to Houston cost him about $1,000
and that “Kimberly offered no evidence to overcome the presumption under
section 156.103[(b)].” However, Miguel does not address the trial court’s finding
that he “produced no credible evidence supporting his request to allocate increased
14
expenses” because his “testimony was not credible.” See T.K.D-H., 439 S.W.3d at
481–82; Dow Chem., 46 S.W.3d at 241; In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005) (noting that an appellate court must defer to the factfinder’s credibility
determinations unless such finding is itself unreasonable). It is important to note
that Miguel provided no documentary or itemized evidence corroborating his broad
testimony that he spent $1,000 per trip to Houston. Without sufficiently specific
evidence of Miguel’s expenses, the trial court would not abuse its discretion in
finding that it was without sufficient information to determine any increase in
Miguel’s net expenses. See FAM. § 156.103(a) (providing the trial court with
discretion to allocate expenses if a change in residence results in increased
expenses); T.K.D-H., 439 S.W.3d at 481 (“The party seeking modification has the
burden to establish these elements by a preponderance of the evidence.”); Coburn,
433 S.W.3d at 829 (placing burden of proof on movant in a suit to modify child
support). Moreover, without evidence of the specific amounts of Miguel’s various
claimed expenses, the trial court had no itemized amount to allocate between the
parties. See FAM. § 156.103(a), (b); T.K.D-H., 439 S.W.3d at 481–82 (setting out
Appellant’s burden on appeal for establishing legal and factual sufficiency on a
matter for which he had the burden of proof).
Although there was insufficient evidence provided by Miguel for the trial
court to reach the merits of his request, we note that the trial court found—and the
evidence supports—that Miguel was paying significantly less than the guidelines
establish for child support and that Miguel testified that he had the financial ability
to hire a full-time nanny. See FAM. §156.103(a) (permitting the trial court to
allocate increased expenses on a “fair and equitable basis”); see also M.U.C.O., 2022
WL 3638255, at *8 (noting that the trial court has discretion on which to allocate
expenses); In re L.M., No. 02-17-00173-CV, 2018 WL 3154187, at *4 & n.7 (Tex.
App.—Fort Worth June 28, 2018, no pet.) (mem. op.) (“When considering how to
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allocate travel expenses, ‘the trial court should consider the parties’ financial
situations to ensure that the travel expenses are not so great that they would prevent
the proper support of the [child] by either party.’” (quoting In re N.T.P., 402 S.W.3d
13, 22 (Tex. App.—San Antonio 2012, no pet.))). Appellant’s fourth issue is
overruled.
This Court’s Ruling
We affirm the order of the trial court.

W. BRUCE WILLIAMS
JUSTICE

March 6, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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