In Re WCB

337 S.W.3d 510, 2011 WL 1467912
CourtCourt of Appeals of Texas
DecidedApril 19, 2011
Docket05-09-01393-CV
StatusPublished

This text of 337 S.W.3d 510 (In Re WCB) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re WCB, 337 S.W.3d 510, 2011 WL 1467912 (Tex. Ct. App. 2011).

Opinion

337 S.W.3d 510 (2011)

In the Interest of W.C.B., A Child.

No. 05-09-01393-CV.

Court of Appeals of Texas, Dallas.

April 19, 2011.

*512 Ronald W. Uselton, Sherman, for Appellant.

Sheila Renee Shea, Jason L. Butscher, Butscher & Dunn, Sherman, for Appellee.

Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.

OPINION

Opinion By Justice LANG-MIERS.

R.C. (Mother) appeals from an order modifying the parent-child relationship and appointing M.B. (Father) joint managing conservator with the exclusive right to designate the primary residence of the child. We affirm the trial court's order.

BACKGROUND

Mother and Father were divorced in 2007; Mother was given the exclusive right to designate the primary residence of W.C.B., their son who was two years old at the time. The final decree of divorce contained a residency restriction to Grayson and its adjacent counties. If Mother wanted to move from that area, the decree required Father's agreement or a court order. Mother and W.C.B. moved to Illinois in January 2009. She did not have Father's agreement or a court order. Father filed a petition to modify the parent-child relationship in which he asked the court to appoint him joint managing conservator with the exclusive right to designate the child's primary residence.[1] After a hearing, the trial court granted Father's petition and appointed him joint managing conservator with the exclusive right to designate the child's primary residence. Mother requested findings of fact and conclusions of law, but when the trial court failed to make them, Mother did not file a notice of past due *513 findings and conclusions.[2] Mother filed a motion for new trial alleging the evidence was legally and factually insufficient to support the trial court's order on the petition to modify and asserting she had a meritorious defense. After a hearing, the court denied the motion for new trial.[3] Mother appeals.

In her sole issue on appeal, Mother argues that the trial court abused its discretion by modifying the divorce decree to appoint Father as "primary conservator" of the child.

STANDARD OF REVIEW

We review a trial court's order on a petition to modify conservatorship for an abuse of discretion. In re B.M., 228 S.W.3d 462, 464 (Tex.App.-Dallas 2007, no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably or without reference to guiding principles. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.). In family law cases, the abuse of discretion standard of review overlaps with traditional sufficiency standards of review. Id. As a result, legal and factual insufficiency are not independent grounds of reversible error, but instead are factors relevant to our assessment of whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and whether it erred in its exercise of that discretion. Id.

When, as here, findings of fact are neither properly requested nor filed, we imply all necessary findings of fact to support the trial court's order. Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex.App.-Dallas 2008, no pet.). However, when the appellate record includes the reporter's record, the trial court's implied findings may be challenged for legal and factual sufficiency. Brock v. O'Neal, No. 01-09-00103-CV, 2010 WL 2545609, at *3 (Tex.App.-Houston [1st Dist.] June 24, 2010, no pet.) (mem.op). In a legal sufficiency review, we consider the evidence in the light most favorable to the court's order and indulge every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); In re S.E.K., 294 S.W.3d 926, 930 (Tex. App.-Dallas 2009, pet. denied). When considering a challenge to the factual sufficiency of the evidence, we consider all the evidence and determine whether the evidence supporting the order is so weak or so against the overwhelming weight of the evidence that the order is clearly wrong and manifestly unjust. See City of Keller, 168 S.W.3d at 822. When the evidence is conflicting, we must presume that the fact-finder resolved the inconsistency in favor of the order if a reasonable person could do so. See id. at 821. The trial court does not abuse its discretion if some evidence of a substantial and probative character exists to support the trial court's decision. S.E.K., 294 S.W.3d at 930. The trial court is in the best position to observe the witnesses and their demeanor, and we give the court great latitude when determining the best interest of a child. Id.

APPLICABLE LAW

A trial court may modify conservatorship of a child if the petitioner proves by a *514 preponderance of the evidence that the modification is in the child's best interest and the circumstances of the child, a conservator, or other party affected by the existing conservatorship order have materially and substantially changed since the rendition of the existing order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West Supp. 2010); A.B.P., 291 S.W.3d at 95; Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex.App.-Dallas 2004, no pet.).

The best interest of the child is always the primary consideration in determining issues of conservatorship. See TEX. FAM. CODE ANN. § 156.101; A.B.P., 291 S.W.3d at 96. In the context of residency restrictions, our primary goals are to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

TEX. FAM.CODE ANN. § 153.001(a) (West 2008); see Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002); In re D.M.D., No. 05-07-01045-CV, 2009 WL 280465, at *3-4 (Tex. App.-Dallas Feb. 6, 2009, no pet.) (mem. op.); Bates v. Tesar, 81 S.W.3d 411, 430 (Tex.App.-El Paso 2002, no pet.).

In considering whether a material and substantial change of circumstances has occurred, the trial court compares the evidence of the conditions that existed at the time of the entry of the prior order with the evidence of the conditions that existed at the time of the hearing on the petition to modify. A.B.P., 291 S.W.3d at 95; see In re C.C.J., 244 S.W.3d 911, 919 (Tex.App.-Dallas 2008, no pet.).

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Related

Bates v. Tesar
81 S.W.3d 411 (Court of Appeals of Texas, 2002)
Agraz v. Carnley
143 S.W.3d 547 (Court of Appeals of Texas, 2004)
Waltenburg v. Waltenburg
270 S.W.3d 308 (Court of Appeals of Texas, 2008)
Lenz v. Lenz
79 S.W.3d 10 (Texas Supreme Court, 2002)
Burns v. Burns
116 S.W.3d 916 (Court of Appeals of Texas, 2003)
City of Keller v. Wilson
168 S.W.3d 802 (Texas Supreme Court, 2005)
In the Interest of B.M.
228 S.W.3d 462 (Court of Appeals of Texas, 2007)
In the Interest of C.C.J.
244 S.W.3d 911 (Court of Appeals of Texas, 2008)
In the Interest of S.M.V.
287 S.W.3d 435 (Court of Appeals of Texas, 2009)
In the Interest of A.B.P.
291 S.W.3d 91 (Court of Appeals of Texas, 2009)
In the Interest of S.E.K.
294 S.W.3d 926 (Court of Appeals of Texas, 2009)
In the Interest of W.C.B.
337 S.W.3d 510 (Court of Appeals of Texas, 2011)

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Bluebook (online)
337 S.W.3d 510, 2011 WL 1467912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wcb-texapp-2011.