Patterson v. Brist

236 S.W.3d 238, 2006 Tex. App. LEXIS 9281, 2006 WL 3030225

• Court: Court of Appeals of Texas
• Decided: October 26, 2006
• Docket: 01-05-00798-CV
• Status: Published

Opinions

OPINION

SAM NUCHIA, Justice.

This appeal arises from a suit to modify an order naming one parent as having the exclusive right to designate the primary residence of C.A.B., the 12 — year—old child of appellant, Sheila Rena Patterson, and appellee, Clint Allen Brist. After a hearing and an in camera interview with C.A.B., the trial court ordered that Brist be appointed joint managing conservator with the right to designate the residence of C.A.B. On appeal, Patterson asserts that the trial court abused its discretion because the evidence is legally and factually insufficient to support the trial court’s finding that it is in C.A.B.’s best interest to reside with Brist.¹ We affirm.

DISCUSSION

Section 156.101 of the Family Code, entitled Grounds for Modification of Order Establishing Conservatorship or Possession and Access, provides in relevant part:

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:

(1)the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has filed with the court, in uniting, the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or

(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Tex Fam.Code Ann. § 156.101 (Vernon 2005) (emphasis added).

Here, C.A.B. has expressed in an affidavit and, presumably, in the in camera interview with the trial court, his preference to reside with his father. Therefore, the only issue for us to resolve is whether the trial court abused its discretion in determining that the change in primary residence was in C.A.B.’s best interests. See Ellason v. Ellason, 162 S.W.3d 883, 888 (Tex.App.-Dallas 2005, no pet.) (holding, “A court may modify an order providing the terms and conditions of conservator-ship if the modification would be in the best interests of the child and the child is at least twelve years of age and has filed with the court, in writing, the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.”).

Standard of Review

We review a trial court’s decision on custody, control, possession, and visitation matters for abuse of discretion, and reverse the trial court’s order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. Turner v. Turner, 47 S.W.3d 761, 763 (Tex.App.-Houston [1st Dist.] 2001, no. pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Id. We view the evidence in the light most favorable to the trial court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). An allegation of legal or factual insufficiency is not treated as an independent ground of error in this context because the appropriate standard of review is abuse of discretion. Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Sufficiency challenges are incorporated into an abuse of discretion determination. McGuire v. McGuire, 4 S.W.3d 382, 387 n. 2 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Analysis

The Family Code’s statutory scheme focuses on the children’s welfare and best interest. Tex. Fam.Code Ann. § 153.002 (Vernon 2005); See Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002) (reiterating legislature’s mandate that best interest of child is primary consideration). Courts have generally considered nine non-exclusive factors set out in Holley v. Adams in determining the best interest of the child. 544 S.W.2d 367 (Tex.1976). Those factors are (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, 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. at 372. We consider these factors as they relate to this case.

In this case, the trial court heard evidence from both parties supporting the conclusion that placing CAB. in the Brist home would provide a more stable and emotionally, mentally, and physically supportive environment for C.A.B. than Patterson’s home. Over the past five years, as he has matured, C.A.B. has developed a very close relationship with Brist. He has become his father’s “shadow” and is “very absorbent” of his father’s time. In her testimony in the trial court, Patterson said that Brist has become C.A.B.’s “best friend.” Both Brist and his present wife, Stephanie, testified that C.A.B. enjoys participating in outdoor activities with his father, including mowing the lawn, roping and horseback riding, and playing baseball. Brist was described as a “very hands on” father, and Brist testified that he wanted his relationship with C.A.B. to continue to grow. The Court heard testimony that C.A.B. is very mature for a 12 year old and that after speaking with both Brist and Patterson, it was also his desire to spend even more time with his father. Moreover, the trial court conducted an in camera interview with C.A.B. in which he apparently expressed a preference for living with Brist. Patterson testified that she took C.A.B. to her attorney’s office to sign the declaration that he wanted to live with her, but that C.A.B. would not sign it. Patterson testified that although she disagreed with Brist regarding where O.A.B. should live, Brist loved and cared for C A.B. and only wanted what was best for him. Patterson testified that Brist’s wishes, desires, and plans for C.A.B. were the same as hers — that C.A.B. grow up to be a well-adjusted child. She also testified that Brist was as good a parent as she was to C.A.B.

The Court heard testimony that the Brist home is emotionally stable and could provide for C.A.B.’s needs. Brist testified that there was nothing bad or dangerous to C.A.B. in the Brist home. C.A.B. has a very good relationship with his father, his two step-brothers, who are close to his age, and his step-sister. He and his stepbrothers are best friends, and he has developed other friends his own age and close to his age in the community where Brist lives. He also has a good relationship with Brist’s relatives. Stephanie Brist testified that them home was very family oriented and that all the kids participated in extra-curricular activities. Mrs. Brist testified that she would actively participate with Brist in taking care of C.A.B. and would also take C.A.B. to his extracurricular activities after school. Brist testified that, because his wife is the secretary at the school where C.A.B. would attend, they would be able to be more active in his school activities.

The Court also heard testimony that both Brist and Stephanie Brist were committed to doing what was financially and emotionally best for their family, including C.A.B. Brist testified that, three years ago, he left a higher paying job with Colonial Pipeline to become self employed in the pest control business in order to spend more time with his family. He testified that his job at Colonial Pipeline often required him to work graveyard shifts and travel. He testified that as a result of this decision he was now able to work just one mile from home and spend every evening with his family. Although during the first few years of self employment he has not made as much money as he did while employed with Colonial Pipeline, Brist testified that his income has increased every year since he started his business and that he expected his yearly income to continue to increase.

At the hearing, Patterson’s counsel argued that this custody proceeding was nothing more than an attempt by Brist to avoid paying back and future child support to Patterson. However, the Court heard testimony that the custody change was initiated by C.A.B. and was his decision, not Brist’s. The Court also heard testimony that, although Brist failed to provide continuous insurance coverage for C.A.B. and had owed back child support, this occurred while he was starting up his new business, and these issues had been resolved by the time of the custody hearing.

While living with Brist, C.A.B. may not be able to participate in the same college level courses offered by the Goose Creek I.S.D., where he attended school while living with Patterson. Although Chambers County has honors program courses, they are not all identical to those in C.A.B.’s current school. Nevertheless, there was no testimony that his new school in Chambers County was either substandard or that C.A.B. would not receive a good education. C.A.B. is an honors student who is active in school activities, and there was no testimony that his level of interest in education or participation in extra-curricular activities would change if he were to live with Brist. Patterson admitted that C.A.B.’s happiness was going to be a factor in how well he performed in school no matter where he went to school.

The court also heard testimony regarding the location and physical arrangements of Brist’s and Patterson’s homes. The court heard testimony that Patterson’s suburban home was larger than the Brist home, which is located in rural east Chambers County. Patterson testified that she lived with her current husband in a subdivision in Baytown. In this home, C.A.B. has his own room and a spare room that has his video game set up, drums, and other items of leisure. The Court heard testimony that Brist and his current wife live in a sixteen-foot by eighty-foot mobile home on a family-owned eight-acre tract. The living arrangements at the mobile home are as follows: Brist and his wife have the master bedroom, the seven-year-old daughter occupies her own bedroom, and C.A.B. shares the other bedroom with his step-brothers. Despite the differences in home size and location, there was no evidence that the Brist home was unstable or an undesirable place for C.A.B. to live. To the contrary, the court heard testimony that C.A.B. was not unhappy about sharing a room with his step-brothers or living in a more rural area, and Patterson had no criticism of the fact that the Brist family made their home in a trailer.

The Court heard testimony that neither Brist nor Patterson were perfect parents and that both had lapses in their parenting skills. Patterson testified that she believed that Brist, while “not a bad parent,” is sometimes careless about safety issues. She testified that Brist allowed C.A.B. to drive Brist’s pickup truck on the eight-acre tract on which his family’s mobile home sits and that Brist allowed C.A.B. and his two step-brothers to play with firecrackers. She also testified that on one occasion he forgot to make sure on a visitation week that C.A.B. had his asthma inhaler. However, Brist testified that, when his wife informed him that he had forgotten the asthma inhaler, instead of having her meet him half-way between their two houses to retrieve the inhaler, he went back to her house to pick it up. On cross-examination, Patterson conceded that she allowed C.A.B. to stay home unattended all day during the summer and that she allowed him to ride a motorized vehicle, a scooter, on the street in their subdivision cul de sac. The trial court expressed concern that C.A.B. was allowed to stay at home alone during the summer.

CONCLUSION

Viewing all the evidence in a light most favorable to the trial court’s decision, we cannot say that the trial court’s judgment was arbitrary or unreasonable. Accordingly, we hold that the trial court did not abuse its discretion in appointing Brist as joint managing conservator with the exclusive right to designate C.A.B.’s primary residence. We overrule appellant’s sole point of error and affirm the judgment of the trial court.

Justice HANKS, concurring.

Justice KEYES, dissenting.

En banc consideration was requested.

A majority of the Court voted to deny en banc consideration.

Justice JENNINGS, dissenting from the denial of en banc consideration.

1 . Patterson’s brief also asserts that the trial court erred in ordering her to pay child support. However, other than mentioning the issue of child support in her statement of the issue, she did not brief the issue. Thus, this issue is waived. See RE/MAX of Texas, Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex.App.Houston [1st Dist.] 1997) (concluding that appellant's failure to make argument, cite authority, or refer to record in support of contention resulted in nothing for court to review), pet. denied, 989 S.W.2d 363 (Tex.1999).