TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00569-CV
Nichelle-Marie Guadalupe, Appellant
v.
Benjamin Rodriguez, Appellee
FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 240132, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING
MEMORANDUM OPINION
Nichelle-Marie Guadalupe appeals from the trial court’s final order granting
Benjamin Rodriguez’s motion to modify the parent-child relationship following a bench trial. We
will affirm the order.
BACKGROUND
Guadalupe and Rodriguez were married and share two sons, born in June 2009 and
December 2011. The couple’s divorce was finalized in 2012 in Bell County. Under the divorce
decree’s terms, Guadalupe and Rodriguez were named joint managing conservators with
independent decision-making responsibilities on issues like medical, educational, and
psychological and psychiatric decisions. Guadalupe was awarded the exclusive right to designate
the children’s primary residence within the state of Texas. Once both children reached the age of three, the decree awarded Rodriguez the standard possession terms. And the decree required
Rodriguez to pay child support.
Rodriguez filed the underlying modification suit in June 2024. He sought to be
appointed the conservator with the right to designate the children’s primary residence and
represented that the children were at least twelve years old and would tell the court in chambers
that they wanted him to have the exclusive right to determine their residence. See Tex. Fam. Code
§ 156.101(a)(2) (providing that court may modify conservatorship order if modification would be
in best interest of child and “the child is at least 12 years of age and has expressed to the court in
chambers as provided by Section 153.009 the name of the person who is the child’s preference to
have the exclusive right to designate the primary residence of the child”). He asked that Guadalupe
have standard possession and be ordered to pay child support. At the time of the modification suit,
Rodriguez lived in Temple, and Guadalupe lived in Austin with their two sons and her daughter
from a previous relationship, Astar Guadalupe, who was 19 at the time of the final hearing. While
the suit was pending, Rodriguez filed a motion to enforce the existing possession and access order,
and after a hearing, the trial court determined that Guadalupe had violated the order by failing to
release the children to Rodriguez on six days in August 2024.
The parties tried the suit to the bench before an associate judge. Both parents
testified, as did Rodriguez’s brother, Astar, and two of Guadalupe’s friends. 1 On Rodriguez’s
motion, the trial judge interviewed the children in chambers after the modification hearing. Neither
party requested that a record be made of those interviews. After the associate judge ruled,
1 On appeal, this Court supplemented the record with the recording of the final hearing, which was electronically recorded. See Tex. R. App. P. 34.6(a)(2) (providing contents of reporter’s record for electronically recorded proceedings); id. R. 34.6(d) (providing process by which appellate court may supplement appellate record).
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Guadalupe requested a de novo hearing before the district judge, which was denied as untimely.
The district judge affirmed and adopted the associate judge’s ruling, which named the parents joint
managing conservators, granted Rodriguez’s motion to modify, awarded Rodriguez, among other
things, the exclusive right to designate the primary residence of the children within the state of
Texas, and ordered Guadalupe to pay child support. Guadalupe perfected this appeal.
STANDARD OF REVIEW
We review trial court rulings on motions to modify conservatorship for an abuse of
discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied)
(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). “A trial court abuses its discretion
when it acts ‘without reference to any guiding rules or principles; or in other words, [when it acts]
arbitrarily or unreasonably.’” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (quoting Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). Generally, a trial court does not abuse
its discretion if the record contains some evidence of a substantive and probative character to
support its decision on modification of conservatorship. See Zeifman, 212 S.W.3d at 589; Johnson
v. Kimbrough, 681 S.W.3d 430, 439 (Tex. App.—Austin 2023, no pet.).
In family-law cases, the abuse-of-discretion standard overlaps with traditional
standards for reviewing the sufficiency of the evidence. See Zeifman, 212 S.W.3d at 587–88.
Consequently, legal and factual insufficiency are not independent grounds of error but are relevant
factors in assessing whether the trial court abused its discretion. Id. at 587. To determine whether
the trial court has abused its discretion, we engage in a two-pronged inquiry, analyzing whether
(1) the trial court had sufficient evidence upon which to exercise its discretion and (2) the trial
court erred in its application of that discretion. Id. at 588.
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Traditional standards for legal and factual sufficiency come into play with the first
question. Id. When conducting a legal-sufficiency review, we consider the evidence in the light
most favorable to the challenged finding and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). When a party attacks
the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she
must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). “When a party
attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of
proof, she must demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence.” Id. at 242. When conducting a factual-sufficiency review, we
consider all the record evidence and set aside the trial court’s order only if the evidence is so weak
as to make the finding clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986). We defer to the factfinder’s implicit determinations of credibility and weight to
be given to the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). Because the trial court acts as the factfinder in a bench trial, the trial court is the “sole judge
of the credibility of the witnesses and the weight to be given their testimony.” McGalliard
v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).
DISCUSSION
Guadalupe, who is pro se, raises six issues on appeal. We construe pro se filings
liberally to obtain a just, fair, and equitable adjudication of the parties’ rights, but pro se litigants
must comply with the same rules and standards as those represented by counsel. Housing Auth. of
Aus. v. Elbendary, 581 S.W.3d 488, 491 n.1 (Tex. App.—Austin 2019, no pet.). While
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Guadalupe’s brief fails at points to present substantive arguments or cite to authorities or the
record, we address her issues as best we can based on her arguments. See Norton v. Phan,
No. 03-22-00002-CV, 2023 WL 4769530, at *2 (Tex. App.—Austin July 27, 2023, no pet.) (mem.
op.); see also Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.”).
In her first issue, Guadalupe argues that the trial court “failed to ensure a record
was made” of the children’s in-chambers interviews. See Tex. Fam. Code § 153.009(a). She states
that missing portions of the record are presumptively harmful to her on appeal. However, the court
does not bear responsibility for ensuring that there is a record made of these interviews. Section
153.009(f) states that
On the motion of a party, the amicus attorney, or the attorney ad litem for the child,
or on the court’s own motion, the court shall cause a record of the interview to be
made when the child is 12 years of age or older. A record of the interview shall be
part of the record in the case.
Id. § 153.009(f). Here, however, none of the above individuals, including Guadalupe, moved to
record the in-chambers interviews. Though the Family Code permits the trial court to cause a
record of the interviews to be made on its own motion, it is not required. Thus, the trial court did
not err by not making a record of the interviews. And contrary to Guadalupe’s argument that the
absent record is presumptively harmful, we conclude that the interviews of the children, who were
both over the age of twelve when interviewed, constitute evidence for the purposes of the
missing-records presumption, meaning that we must presume that those interviews contain
sufficient evidence to support the trial court’s final order. See Udall v. Minns, 730 S.W.3d 704,
724–25 (Tex. App.—Austin 2026, pet. denied) (citing In re C.J., 689 S.W.3d 417, 422–23 (Tex.
App.—Dallas 2024, no pet.)). We overrule Guadalupe’s first issue.
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In her second issue, Guadalupe states, “Courts may not deny access through
technicalities applied against pro se litigants,” and “[t]he trial court’s conduct resulted in an uneven
and fundamentally unfair proceeding.” She does not specify any examples or point to
instances substantiating these allegations in the record. A trial court has the inherent power to
control the disposition of cases “with economy of time and effort for itself, for counsel, and for
litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). Texas courts have held that “the
discretion vested in the trial court over the conduct of a trial is great.” Schroeder v. Brandon,
172 S.W.2d 488, 491 (Tex. 1943). “A trial court has the authority to express itself in exercising
this broad discretion.” Dow Chem., 46 S.W.3d at 240–41. Further, “a trial court may properly
intervene to maintain control in the courtroom, to expedite the trial, and to prevent what it considers
to be a waste of time.” Id. at 241. After a thorough review of the record, including the recording
of the final hearing before the associate judge, we cannot determine any instance of the trial court
“deny[ing] access through technicalities” or conducting “an uneven and fundamentally unfair
proceeding.” We overrule Guadalupe’s second issue.
In her third issue, Guadalupe contends that the absence of findings of fact
constitutes reversible error. However, neither Guadalupe nor Rodriguez requested findings of fact.
See Tex. R. Civ. P. 296 (“In any case tried in the district or county court without a jury, any party
may request the court to state in writing its findings of fact and conclusions of law.”). Absent a
proper request for findings of fact, the trial court did not err by not making any. 2 We overrule
Guadalupe’s third issue.
2 Guadalupe does not contend that she is entitled to findings of fact by any other statute or authority.
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In her fourth issue, Guadalupe argues that “[r]estrictions on parental rights require
findings of unfitness or harm,” citing to Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990), and
complaining that “[n]o such findings were made.” Lewelling involved the appeal of an order
appointing grandparents as managing conservators of their grandchildren and naming the
children’s mother as a possessory conservator. Id. at 165. The order concluded that naming the
mother a managing conservator of her children would significantly impair a child’s physical health
and emotional development, but on appeal, the Court concluded that no evidence supported that
finding. Id. at 167. Here, however, Guadalupe has been named joint managing conservator, and
thus her parental rights were not “restricted” as the mother’s were in Lewelling. Thus, the
trial court did not err by omitting “findings of unfitness or harm.” We overrule Guadalupe’s
fourth issue.
In her fifth issue, Guadalupe states, “Financial comparison alone cannot justify
modification.” She appears to argue that the trial court ruled “based on comparative wealth” of
the parties, which we understand to assert that the trial court abused its discretion by granting the
modification based on the “comparative wealth” of the parties, as opposed to a finding that the
modification would be in the best interests of the children. See Tex. Fam. Code § 156.101(a).
Because the trial court did not issue findings of fact, all facts necessary to support
the ruling and supported by the evidence are implied in favor of the judgment, subject to a legal
and factual sufficiency challenge of the reporter’s and clerk’s records. See Zeifman, 212 S.W.3d
at 588. And here, sufficient evidence supports the trial court’s finding that the modification would
be in the children’s best interests. Rodriguez testified at the final hearing that he lives in a
7-bedroom home, where each of his sons have their own room. He testified that he works in
finance and has been with the same company for over 17 years, where his responsibilities have
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increased over time. His work hours are 6 a.m. to 2 p.m., and he works remotely, so he has the
flexibility to take his sons to and from school and be available for after-school activities and
homework help. Rodriguez testified that he researched the middle school and high school that
each boy would attend, and both schools are within a fifteen-minute drive from his home.
Rodriguez lives with his fiancée, her daughter, his brother, and his mother, and he testified that his
fiancée gets along well with his boys. Rodriguez stated that his goal for the boys is to help them
do well in school and prepare them for college or trade school. Further, Rodriguez agreed that it
was important for the boys to maintain a relationship with Guadalupe, affirmed that he would make
sure that the boys call and visit her at appointed times, and stated that he would talk to Guadalupe
about the boys’ education and ensure she has access to their teachers. He explained that
communication has been difficult with Guadalupe, and she has not shared information about the
boys’ education when he asked. He testified that he and the boys missed each other when
Guadalupe denied his visitation, and he was unable to speak with them on the phone. Rodriguez
maintained that his reason for seeking the modification is because the boys have been asking to
live with him for about two years, and he trusted that the boys would be truthful about their
preferences with the judge in an in-chambers interview.
Rodriguez’s brother, Daniel Rodriguez, also testified and affirmed that Rodriguez
loves his children, is concerned for their wellbeing, and is active with them. Daniel specified that
when Rodriguez has the boys, the family enjoys playing basketball and video games and watching
movies together.
Guadalupe testified that she recently moved into a three-bedroom home where the
boys share a room. Before moving, the family lived in a two-bedroom home, in which the boys
and their half-sister Astar shared a bedroom for about two years. Guadalupe testified that she has
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worked at the U.S. Gold Bureau in Leander for the past five years, where she makes $7.50/hour
working from 8:30 a.m. to 5:30 p.m., though she also works as a hairstylist on the weekends, where
she makes an extra $2,000 per month. She testified that before she gets home from work and after
the boys get home from school, the boys are almost always supervised by Astar, though Astar also
recently started working. Guadalupe testified that she trusts the boys to be home alone for short
periods while she is at work or running an errand. Guadalupe affirmed that she has no problem
with the judge listening to the boys’ opinions about where they want to live; however, she
expressed her concerns that the boys do not do well with change, have lived with her for thirteen
years, and have friends at their schools. She stated that her biggest concern with Rodriguez’s
requested modification is the psychological effect on the boys and opined that their moods are
different when they return from Rodriguez’s house, which she characterized as full of people
without the same values and structures as she maintains in her household. But she maintained that
since the enforcement proceeding, she had given Rodriguez access to the boys based on the
existing order.
Astar agreed with Guadalupe’s testimony about structure in their household and
stated that she and her half-brothers look out for each other. She testified that sometimes when
the boys come back from visits with Rodriguez, their moods are negatively affected. Guadalupe’s
friends, Marbel Donosso and Damian Washington, also testified, and both agreed that Guadalupe
has a structured household where the children are loved and know what is expected of them.
Donosso detailed how she has seen Guadalupe work hard to provide for her children over many
years and affirmed that Guadalupe is always thinking of her children’s health and wellbeing.
In sum, the trial court heard evidence about the parties’ abilities to share parenting
responsibilities, care for the children, and meet the children’s needs. The testimony demonstrated
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both parents’ devotion to their children. See generally Fuentes v. Jasso, No. 08-03-00109-CV,
2004 WL 1078498, at *3 (Tex. App.—El Paso May 13, 2004, no pet.) (mem. op.) (recognizing
“painful reality” that when two “devoted parents” divorce, hard choices must be made regarding
custody decisions). No testimony or evidence stated that the modification was in the children’s
best interests because of Rodriguez’s wealth compared to Guadalupe’s. While some evidence was
suggestive of or relevant to the parties’ comparative wealth—i.e., Guadalupe’s income, the size of
the parties’ respective homes, or their jobs—this evidence was not the only evidence that supports
the trial court’s best-interest finding. For example, the trial court could have credited Rodriguez’s
testimony that the boys have been asking to live with him for about the past two years. And
because the children’s in-chambers interviews were not recorded, we must presume that those
interviews contain sufficient evidence to support the trial court’s final order, including the
best-interest finding. See Udall, 730 S.W.3d at 724–25.
In determining which conservator will have the exclusive right to establish primary
residence, the trial court is vested with broad discretion. See Billisits v. Billisits,
No. 03-21-00358-CV, 2023 WL 2191330, at *5 (Tex. App.—Austin Feb. 24, 2023, no pet.) (mem.
op.) (citing Dennis v. Smith, 962 S.W.2d 67, 70 (Tex. App.—Houston [1st Dist.] 1997, pet.
denied)). Accordingly, our job is not to second-guess the trial court’s decision but instead to ensure
that the trial court did not act unreasonably, arbitrarily, or without reference to guiding principles
of family law in reaching its decision. See Zeifman, 212 S.W.3d at 587. Having reviewed the
evidence under the appropriate standards, we conclude that sufficient evidence supports the trial
court’s finding that it is in the children’s best interests for Rodriguez to have the exclusive right to
determine the children’s primary residence and thus the trial court did not abuse its discretion by
awarding him this right. We overrule Guadalupe’s fifth issue.
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Finally, in her sixth issue, Guadalupe argues that the trial court abused its discretion
by “refusing to preserve [the] children’s stability” while this appeal was pending. We understand
her argument to challenge the trial court’s denial of her request for a stay pending appeal. Section
109.001 of the Family Code permits the 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,” including suspending operation of the judgment being appealed.
Tex. Fam. Code § 109.001(a)(6). The statute does not define the terms “safety” and “welfare,”
so we construe them according to their ordinary, common meanings. McCain v. McCain,
636 S.W.3d 679, 684 (Tex. App.—Austin 2021, no pet.) (citing Texas State Bd. of Exam’rs of
Marriage & Fam. Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 34–35 (Tex. 2017)). We have
previously construed “safety” to mean “the condition of being safe from undergoing or causing
hurt, injury, or loss,” and “safe” to mean “free from harm or risk” or “secure from threat of danger,
harm, or loss.” See id. We have also previously construed “welfare” to mean “the state of doing
well especially in respect to good fortune, happiness, well-being, or prosperity.” See id.
Before ruling on Guadalupe’s motion to stay the judgment pending appeal, the trial
court held an evidentiary hearing to consider whether temporary orders were necessary for the
children’s safety and welfare. Guadalupe called three witnesses to testify: her friends, Donosso
and Benjamin Quinones, and Astar. Neither Donosso nor Astar testified regarding the safety and
welfare of the children in Rodriguez’s care but instead testified generally to the positive
environment that Guadalupe provides for her children. The trial court asked Quinones whether he
believed the children were in danger at Rodriguez’s home. Quinones replied that his “concern”
was “emotional abuse that may not be[] observed” and the “long term impact of emotional harm
when something like this happens.” The trial court also asked Guadalupe directly what evidence
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she had that indicates a “crisis situation” requiring a stay necessary to protect the children.
Guadalupe responded, “At this particular time I wasn’t prepared to answer that. . . . It could be a
possibility.” The trial court then denied Guadalupe’s request for a stay of the judgment.
Based on the record, we conclude that the trial court’s decision not to suspend the
final order pending appeal was not arbitrary or unreasonable in light of the evidence before it. The
trial court did hear evidence of Quinones’s concerns regarding “emotional abuse” that may not
have been “observed” and the “long term impact of emotional harm.” But without more, and under
the applicable legal and factual sufficiency standards of review, we cannot conclude on this record
that the trial court abused its discretion by declining to enter temporary orders under section
109.001. We overrule Guadalupe’s sixth issue.
CONCLUSION
Because Guadalupe has not established reversible error on appeal, we affirm the
trial court’s final order.
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Theofanis and Crump
Affirmed
Filed: August 13, 2026
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