In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-15-00429-CV ____________________
IN THE INTEREST OF R.H.C.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 12-10-10690-CV __________________________________________________________________
MEMORANDUM OPINION
In this post-divorce modification suit affecting the parent-child relationship,
R.H.C.’s father, S.D.C., appeals the trial court’s final order appointing the child’s
mother, T.D., as the managing conservator with the exclusive right to designate the
primary residence of R.H.C., their minor child. In one issue on appeal, S.D.C.
argues that the trial court abused its discretion by ordering a change in the primary
conservatorship of R.H.C. based solely on S.D.C. having violated a previously
imposed geographic restriction due to a lack of employment opportunities. We
affirm the trial court’s judgment.
1 Background
In December 2010, S.D.C. and T.D. divorced. In the Final Decree of
Divorce, the trial court appointed S.D.C. and T.D. as joint managing conservators
of R.H.C. The trial court further ordered that S.D.C. had the “exclusive right to
designate the primary residence of the child within Walker and Montgomery
Counties when the child reaches the age of five (5) years and begins
Kindergarten[.]”
In 2013, S.D.C. filed a petition to modify the parent-child relationship,
asking the trial court to modify the terms and conditions for possession and access
of the child and to increase child support payments. In 2014, the trial court entered
an order modifying the parent-child relationship, ordering that S.D.C. “shall have
the exclusive right to designate the child’s primary residence within Montgomery
and Contiguous Counties.” The trial court further ordered that the “geographic
restriction on the residence of the child shall be lifted if, at the time [S.D.C.]
wishes to remove the child from Montgomery and Contiguous Counties for the
purpose of changing the primary residence of the child, [T.D.] does not reside in
Montgomery and Contiguous Counties.” The trial court also found that it was in
the best interest of the child to deviate from the Standard Possession Order in the
Texas Family Code. The trial court found that standard possession was unworkable
2 and inappropriate under the circumstances because T.D. was employed as a
paramedic and “works 24-hour shifts, beginning and ending at 7:00 a.m., with
varying hours off in between shifts[,]” and that “due to her work schedule, [T.D.]
is unable to exercise predictable periods of possession occurring on the same days
of each month.”
In January 2015, S.D.C. filed another petition to modify the parent-child
relationship, contending that the “circumstances of the child, a conservator, or
other party affected by the order to be modified have materially and substantially
changed since the date of rendition of the order to be modified.” In his petition,
S.D.C. requested that the trial court lift the previously imposed geographic
restriction. S.D.C.’s petition included a supporting affidavit, stating that he had
already moved R.H.C.’s residence outside of the geographic restricted area for the
purpose of employment, that R.H.C. was attending a new school, and that he
believed R.H.C. will continue to have frequent contact with T.D. despite living
more than one hundred miles apart. T.D. filed a counter-petition to modify the
parent-child relationship, also contending that the circumstances of the child or a
conservator had materially and substantially changed and asking that the trial court
appoint her as the conservator who has the right to establish the primary residence
of the child. In her counter-petition, T.D. asserted that S.D.C. has a history of
3 neglecting R.H.C. and that S.D.C.’s change of residence has caused her to incur
increased costs to exercise her periods of possession.
The trial court conducted a trial on the merits of the parties’ petitions. S.D.C.
testified that it was in R.H.C.’s best interest for the trial court to remove the
geographic restriction because S.D.C. had to move outside the designated
geographical area to secure employment. The record shows that S.D.C. and R.H.C.
moved prior to S.D.C. filing his petition to lift the geographic restriction. S.D.C.
testified that the move has improved his financial situation and his lifestyle,
allowing him to spend more time with R.H.C. S.D.C. claimed that despite having
moved, he continues to insure that T.D. has access to R.H.C. and that she was able
to visit R.H.C. twice at school. According to S.D.C., the parties’ possession and
access schedule works because T.D. has access to R.H.C. every other weekend and
the parties meet halfway between their residences. S.D.C. maintained that due to
his move, R.H.C. has access to a better school. According to S.D.C., R.H.C. is
doing well in her new school and her functionality has improved since transferring
schools.
S.D.C. also claimed that his relocation allows R.H.C. to spend more time
with extended family. S.D.C. testified that since his move, he has established a
stable home with a regular routine. According to S.D.C., R.H.C. is in the best
4 environment she could be in, because in T.D.’s home, R.H.C. is exposed to a
constant influx of ex-boyfriends. S.D.C. also testified that T.D. still works “crazy”
hours and is not at home every night. However, S.D.C. also has to work one to two
nights per week and does not get home until around ten o’clock.
T.D., who is a licensed paramedic and a registered nurse, testified
concerning her work schedule and explained that her work schedule had recently
changed. T.D. testified that she previously worked twenty-four hour shifts
approximately ten days per month and that the shift started and ended at seven
o’clock in the morning, but T.D. currently works twelve-hour shifts approximately
fifteen days per month. While T.D. is under contract with an additional employer
to work a minimum of four additional shifts per month, she testified that she would
quit her additional job if the trial court awarded her primary custody of R.H.C.
According to T.D., her new work schedule significantly impacts her ability to care
for R.H.C. because she gets off work at five o’clock in the afternoon and is able to
cook dinner, help R.H.C. with homework, and establish a bedtime routine. T.D.
also explained that her workday begins at five o’clock in the morning, and that her
older daughter will care for R.H.C. on the mornings T.D. is working and will take
R.H.C. to school. T.D. explained that if her daughter is unable to care for R.H.C.
5 due to conflicts with her college schedule, T.D. has other friends or providers who
can help care for R.H.C.
T.D. alleges that S.D.C. has a history of neglecting R.H.C. T.D. testified that
she has concerns because when R.H.C. is under S.D.C.’s care, R.H.C.’s hair is
unkempt and knotted and R.H.C. wears inappropriate-sized clothing. However, on
cross-examination, T.D. conceded that when she received R.H.C with matted hair,
T.D. was picking R.H.C. up from school or daycare, and T.D. had no evidence
showing that R.H.C. had left S.D.C.’s care in that condition. Regarding R.H.C.’s
clothing, T.D. admitted that she did not help S.D.C. with R.H.C.’s school clothes,
and although S.D.C. has been R.H.C.’s primary conservator since R.H.C. was
fourteen months old, T.D. did not provide any child support until shortly before
R.H.C. turned six years old.
T.D. also expressed concerns about R.H.C.’s diet, the irregularity of her
bowel movements, and R.H.C. having had a diaper rash and blistering in her
genital area. According to T.D., R.H.C. also has a history of having pin worms.
T.D. further testified that she was concerned about R.H.C.’s emotional well-being
because R.H.C.’s demeanor had changed since the move. According to T.D.,
R.H.C. is not herself, and is very clingy, sad, withdrawn, and introverted. T.D.
claimed that R.H.C. resists getting in the car when it is time for her to return to
6 S.D.C.’s home. T.D. believes that R.H.C. needs counseling and is willing to pay
for it, but according to T.D., S.D.C. will not agree to enroll R.H.C. in therapy.
Since S.D.C.’s move, T.D. maintains that they have tried to work together to
accommodate each other as much as possible concerning possession and access,
but logistics sometimes prevented T.D. from exercising possession of R.H.C. T.D.
testified that she believes R.H.C. would be better off living with her, and T.D.
asked the trial court to appoint her as the primary conservator with the right to
designate R.H.C.’s primary residence with a geographic restriction.
The trial court also heard testimony from T.D.’s boyfriend, daughter, and
friend. T.D.’s boyfriend, K.A., testified that he and T.D. live together and have
been together a little over a year. K.A. testified that if R.H.C. lived with T.D., he
would assist in caring for R.H.C. According to K.A., their home is safe and clean.
K.A. is aware that R.H.C. has allergy problems and claims that both he and T.D.
do not smoke inside the home. T.D.’s daughter testified that she has assisted in
caring for R.H.C. in the past and will continue to do so when needed. T.D.’s friend
testified that R.H.C.’s demeanor has changed since the move, and she explained
that R.H.C. is withdrawn, subdued, and more physically attached to T.D.
At the end of the trial, the trial judge questioned S.D.C. regarding T.D.’s
relationship with R.H.C., and S.D.C. admitted that T.D. had a close relationship
7 with R.H.C. The trial judge also questioned S.D.C. about the impact of moving
R.H.C. 250 miles away from T.D. and about the difficulty of T.D. being able to
attend school functions and other activities on a regular basis. S.D.C. admitted that
R.H.C. wanted T.D. to attend such events, but he did not think the distance posed
any problem for T.D. At the end of the trial, the trial judge stated that the case
involved a very difficult decision and expressed concerns about R.H.C.’s
emotional well-being regardless of her ruling because, either way, R.H.C. cannot
see both parents on a daily basis.
The trial court denied S.D.C.’s petition to modify the parent-child
relationship in its entirety and granted T.D.’s counter-petition in part. The trial
court ordered that S.D.C. and T.D. be appointed joint managing conservators of
R.H.C. and that T.D. shall have the exclusive right to designate the primary
residence of the child within Montgomery County and contiguous counties. S.D.C.
filed a motion for new trial. The trial court held a hearing on S.D.C.’s motion for
new trial and denied the motion.
In its findings of facts, the trial court found “that circumstances of the child
and a conservator have materially and substantially changed since the rendition of
the order to be modified.” The trial court found that in December 2013, the Court
rendered an order awarding S.D.C. the exclusive right to designate the primary
8 residence of the child restricted to Montgomery County, and since rendition of that
order, S.D.C. and the child have been residing in Denton County. The trial court
further found that it was in the best interest of the child that S.D.C. and T.D.
remain joint managing conservators and that T.D. have the exclusive right to
designate the child’s residence, restricted to Montgomery County and contiguous
counties. S.D.C. appeals the trial court’s order modifying the parent-child
relationship.
Analysis
In his sole issue on appeal, S.D.C. argues that the trial court abused its
discretion by ordering a change in the primary custody of R.H.C. According to
S.D.C., the trial court’s decision was based solely on S.D.C. having violated the
previously imposed geographic restriction. S.D.C. argues that there is no current
precedent or Texas statute that allows a trial court to change a parent’s right to
establish the primary residence of a child based solely on the fact that the parent
violated a court order by relocating the child. S.D.C. does not challenge the trial
court’s finding of a material and substantial change in circumstances; rather,
S.D.C. challenges whether the evidence supports the trial court’s finding that the
modification is in the child’s best interest.
9 According to T.D., the record does not support S.D.C.’s contention that the
trial court based its findings solely upon S.D.C. having violated the geographic
restriction. Instead, the record shows that the trial court found that the
circumstances of the child and a conservator had materially and substantially
changed since the rendition of the order to be modified. T.D. maintains that the
trial court heard substantial testimony regarding the care of R.H.C. while in
S.D.C.’s possession and that the evidence was sufficient to show that it was in
R.H.C.’s best interest for T.D. to be awarded primary conservatorship.
We review a trial court’s decision in a case concerning a modification of
conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); In re M.A.M., 346 S.W.3d 10, 13 (Tex. App.—
Dallas 2011, pet. denied). “The trial court is given wide latitude in determining the
best interests of a minor child.” Gillespie, 644 S.W.2d at 451. A trial court abuses
its discretion when it acts arbitrarily or without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985); M.A.M., 346 S.W.3d at 13. “The question of conservatorship of a child is
left to the sound discretion of the trial court when it sits as trier of fact.” Echols v.
Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, not pet.). Because the
trial court is in the best position to observe the demeanor of the witnesses and can
10 “‘feel’ the forces, powers, and influences that cannot be discerned by merely
reading the record[,]” we will not find an abuse of discretion as long as there is
some evidence of substantive and probative character to support the trial court’s
decision. Id.
In family law cases, the traditional sufficiency standard of review overlaps
with the abuse of discretion standard; thus, legal and factual sufficiency are not
independent grounds of error but are relevant factors in assessing whether the trial
court abused its discretion. M.A.M., 346 S.W.3d at 13. This standard has been
distilled into a two-pronged inquiry: (1) whether the trial court had sufficient
information upon which to exercise its discretion; and (2) whether the trial court
erred in its application of discretion. Id. at 14. The traditional sufficiency review is
relevant with regard to determining whether the trial court had sufficient evidence
to exercise its discretion. Id.; In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas
2009, pet. denied). The second part of the inquiry requires that we determine
whether the trial court made a reasonable decision considering the evidence
presented. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no
pet.).
Section 156.101 of the Texas Family Code provides that a trial court may
modify an order in a suit affecting the parent-child relationship when the
11 circumstances of the child or one or both of the conservators have materially and
substantially changed since the date of the rendition of the prior order, and if
modification would be in the best interest of the child. See Tex. Fam. Code Ann. §
156.101(a)(1)(A) (West 2014). “In reviewing determinations regarding
modifications of residency restrictions to permit a custodial parent’s relocation, we
look to the public policy the legislature has set forth in the family code for custody
issues and the guidelines from that policy.” In re Cooper, 333 S.W.3d 656, 660
(Tex. App.—Dallas 2009, orig. proceeding); see Lenz v. Lenz, 79 S.W.3d 10, 14
(Tex. 2002). Texas’s public policy calls for frequent and continuing contact with
parents when both parents are able to act in the child’s best interest; providing the
child with a safe, stable, nonviolent environment; and encouraging divorced
parents to share in the raising of the child. Tex. Fam. Code Ann. § 153.001 (West
2014); Cooper, 333 S.W.3d at 660.
The child’s best interest is the trial court’s primary concern in determining
issues of conservatorship, possession, and access. Tex. Fam. Code Ann. § 153.002
(West 2014). In analyzing the best-interest standard in the relocation context, we
are guided by the Legislature’s public policy considerations and by best-interest
tests developed by courts. Lenz, 79 S.W.3d at 18-19. We assess the trial court’s
best-interest finding by using the Holley factors. See Holley v. Adams, 544 S.W.2d
12 367, 371-72 (Tex. 1976). The Holley factors include the (1) child’s desires; (2) the
child’s current and future physical and emotional needs; (3) any physical or
emotional danger to the child in the present or future; (4) the parental abilities of
the individuals involved; (5) the programs available to those individuals to promote
the child’s best interest; (6) the plans for the child by these individuals; (7) the
stability of the home; (8) acts or omissions by a parent tending to show that the
existing parent-child relationship is not a proper one; and (9) any excuse for the
parent’s acts or omissions. Id.
Additionally, because this modification involves residency restrictions and
relocation, we must also consider the factors identified by the Supreme Court of
Texas in Lenz. See Lenz, 79 S.W.3d at 14. The Lenz court identified the following
factors as being potentially relevant in determining the child’s best interest after
relocation: (1) the reasons for and against the move; (2) the relocation’s effect on a
child’s education, health, and leisure opportunities; (3) accommodating any special
needs or talents; (5) the effect on extended family relationships; (6) how the move
will affect the noncustodial parent’s visitation and communication with the child;
and (7) the noncustodial parent’s ability to relocate. Lenz, 79 S.W.3d at 15-16.
The trial court heard conflicting evidence regarding the relevant factors that
concerned the child’s best interest with respect to conservatorship, possession, and
13 access. See Holley, 544 S.W.2d at 371-72. S.D.C. testified that while living with
him, R.H.C. experienced a better education, a stable home, and a regular routine.
S.D.C. claimed that R.H.C. was able to spend more time with him and extended
family, and unlike T.D.’s house, R.H.C. was not exposed to ex-boyfriends coming
and going in the home. S.D.C. also testified that she insured that T.D. had access to
R.H.C. and was able to visit R.H.C.’s school.
T.D. testified that her new work schedule gave her the ability to care for
R.H.C. full time. T.D. claimed that it was in R.H.C.’s best interest to live with her
because S.D.C. had been neglecting R.H.C.’s care. T.D. expressed concerns about
R.H.C.’s hygiene, diet, and her physical and emotional health. According to T.D.,
she wanted to enroll R.H.C. in counseling to help R.H.C. deal with her emotional
issues, but S.D.C. had refused.
The trial court also heard evidence concerning the relevant factors in
determining R.H.C.’s best interest after relocation. See Lenz, 79 S.W.3d at 15-16.
S.D.C. testified about how his relocation had affected R.H.C. According to S.D.C.,
the move had improved R.H.C.’s lifestyle and financial situation. S.D.C. claimed
that R.H.C. had improved in school and benefitted from being able to spend more
time with S.D.C. and other extended family members. However, T.D. testified that
R.H.C.’s demeanor had changed since the move, and she described R.H.C. as
14 being very clingy, sad, and withdrawn. T.D. further testified that the move has
sometimes prevented her from exercising possession of R.H.C.
After hearing all of the evidence and observing the witnesses, the trial court
also expressed concerns about R.H.C.’s emotional well-being due to S.D.C. having
moved R.H.C. 250 miles away from T.D. See Echols, 85 S.W.3d at 477. The
record shows that the trial judge questioned S.D.C. about the impact the relocation
has had on R.H.C.’s relationship with T.D., and while S.D.C. admitted that R.H.C.
was close to T.D. and wanted T.D. to attend school functions and other events,
S.D.C. did not think that the distance posed any problem.
The trial court found that it was in R.H.C.’s best interest that S.D.C. and
T.D. remain joint managing conservators and that T.D. have the exclusive right to
designate the child’s residence, restricted to Montgomery County and contiguous
counties. Based on the evidence concerning all relevant factors at the time of the
hearing, we hold that there is some evidence of substantive and probative character
to support the trial court’s decision. See id. We further conclude that the trial court
made a reasonable decision considering the evidence presented. See M.M.M., 307
S.W.3d at 849. Accordingly, we hold that the trial court did not abuse its discretion
by ordering the modification. See Gillespie, 644 S.W.2d at 451. We overrule
S.D.C.’s sole issue and affirm the trial court’s judgment.
15 AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
Submitted on August 2, 2016 Opinion Delivered October 20, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.