Arredondo v. Betancourt

• Decision Date: 11 October 2012
• Docket Number: No. 14–11–00742–CV.,14–11–00742–CV.
• Citation: 383 S.W.3d 730
• Parties: Sylvia Yolanda ARREDONDO, Appellant, v. Antonio A. BETANCOURT, Jr., Appellee.
• Court: Texas Court of Appeals

383 S.W.3d 730

Sylvia Yolanda ARREDONDO, Appellant,

v.Antonio A. BETANCOURT, Jr., Appellee.

No. 14–11–00742–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Oct. 11, 2012.

Timothy A. Hootman, Houston, TX, for appellant.

Louis Lippman, Linda Graham Cryer, Houston, TX, for appellee.

Panel consists of Chief Justice HEDGES and Justices BROWN and BUSBY.

OPINION

JEFFREY V. BROWN, Justice.

Sylvia Yolanda Arredondo appeals the trial court's May 31, 2011 order granting Antonio A. Betancourt, Jr.'s petition to modify the parent-child relationship. We affirm the judgment as modified.

I

Sylvia and Antonio married in January 2001, and Sylvia gave birth to their son in April of that year. The couple divorced in September 2002. In their agreed divorce decree, Sylvia and Antonio were designated joint managing conservators of their child. Sylvia was awarded the exclusive right to establish the primary residence of the child without regard to geographic location. Antonio was awarded a standard possession order, which included a provision for alternative periods of possession if Sylvia and the child moved more than 100 miles from Antonio's residence. Antonio was also required to pay child support. In 2003, Sylvia married Miguel Arredondo, and they had a son.

On November 1, 2009, Sylvia drove to Mexico with her husband and two sons. Two days later, Sylvia sent a text message and email to Antonio telling him she and their child were in Mexico. At trial, Antonio claimed this was the first time he learned that Sylvia had taken their child to Mexico; Sylvia claimed Antonio knew well in advance that she planned to move to Mexico.

Shortly after Sylvia took the child to Mexico, Antonio filed a petition to modify the parent-child relationship. In his petition, Antonio sought to modify the divorce decree to award him the exclusive right to determine the child's primary residence, require Sylvia to pay child support, and obtain a temporary restraining order requiring Sylvia to return their child to Harris County. Antonio alleged that he was requesting the modifications because Sylvia “secretly fled the country with the child without notice.” Sylvia filed a counter-petition requesting, among other things, that conservatorship be modified to designate her the sole managing conservator of the child. The trial court signed temporary orders requiring Sylvia to return the child to Harris County and awarding Antonio the exclusive right to designate the child's primary residence within the county. Sylvia was also ordered to surrender the child's passport to the trial court, and the court's order reflects that she surrendered the child's passport and “voluntarily” surrendered her own passport.

In April 2011, a jury trial commenced on the issues of which parent should have the exclusive right to determine the child's residence and whether a geographical restriction should be imposed. The jury determined that the decree should be modified to award Antonio the exclusive right to designate the child's primary residence with a geographic restriction to Harris County and the contiguous counties. The trial court signed a judgment incorporating the jury verdict in Antonio's favor and, in addition, permanently enjoined Sylvia from traveling outside the continental United States without Antonio's prior written consent. The trial court also denied Sylvia's post-trial motion requesting that the court return her passport.

II

In her first two issues, Sylvia contends that the evidence is legally insufficient to support modifying the decree to give Antonio the exclusive right to designate the primary residence of the child. Sylvia argues that because the divorce decree gave her the exclusive right to designate the child's primary residence without a geographic restriction, she was authorized to move to Mexico with the child and therefore the move alone cannot constitute a material and substantial change in circumstanceswarranting modification of the custody arrangement.

A

Because a trial court has broad discretion to decide the best interest of a child in family-law matters such as custody, visitation, and possession, we review a trial court's order modifying conservatorship under an abuse-of-discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze or apply the law. See In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In evaluating whether the decision constitutes an abuse of discretion, we note that a trial court may not contravene a jury verdict that determines which joint managing conservator has the exclusive right to designate the primary residence of the child. Tex. Fam.Code § 105.002(c)(1)(D).

Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error, but are factors in assessing whether the trial court abused its discretion. See In re D.S., 76 S.W.3d at 516. However, a jury's findings underlying a conservatorship decision are subject to ordinary legal- and factual-sufficiency review. Alexander v. Rogers, 247 S.W.3d 757, 761 (Tex.App.-Dallas 2008, no pet.).

An appellate court will sustain a legal-sufficiency issue when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider the evidence and inferences favorable to the finding if a reasonable fact finder could, and disregard evidence contrary to the finding unless a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex.2002); In re P.M.B., 2 S.W.3d 618, 621–22 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We defer to the fact finder's resolution of underlying facts and to credibility determinations that may have affected its determination, and will not substitute our judgment for the fact finder's. In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

B

To prevail on his petition to modify the parent-child relationship, Antonio had to establish that (1) modification would be in the child's best interest and (2) “the circumstances of the child, a conservator, or other party affected by the order has materially and substantially changed” since the date of the rendition of the 2002 divorce decree. SeeTex. Fam.Code § 156.101(a)(1)(A). Here, Sylvia does not challenge the jury finding that the modification was in the child's best interest; she challenges only the finding of a material and substantial change in circumstances.

In deciding whether a material and substantial change of circumstances has occurred, a fact finder is not confined to rigid or definite guidelines; instead, the determination is fact specific and must be made according to the circumstances as they arise. In re A.L.E., 279 S.W.3d at 428. Material changes may include (1) the marriage of one of the parties, (2) poisoningof a child's mind by one of the parties, (3) change in the home surroundings, (4) mistreatment of a child by a parent or step-parent, or (5) a parent's becoming an improper person to exercise custody. Id. at 429. Additionally, a course of conduct pursued by a managing conservator that hampers a child's opportunity to favorably associate with the other parent may suffice as grounds for redesignating managing conservators. In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex.App.-Amarillo 1996, no writ); Gunther v. Gunther, 478 S.W.2d 821, 829 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). A material and substantial change in circumstances may be established by either direct or circumstantial evidence. In re A.L.E., 279 S.W.3d at 429.

C

At trial, Antonio testified that between the date of the divorce and the trial, he and Sylvia lived in the Houston area where they both had significant family ties. He stated that he and Sylvia routinely cooperated regarding visitation until November 2009 when Sylvia took their child to Mexico.

Antonio denied knowing in advance that Sylvia intended to move their son to Mexico in November 2009. According to Antonio, Sylvia began talking about a future move to Mexico in September or October 2008, but she assured him that she wanted to go there “just for vacation.” Sylvia again raised the issue in 2009, but she told him that she would not move without telling him.¹ Antonio acknowledged that he did not believe Sylvia tried to hide the child from him in Mexico, but he also stated that he did not know what her plans were when she took the child to Mexico.

Antonio testified that he signed paperwork to allow Sylvia to get a passport for their child to go to Mexico on vacation with Sylvia and Miguel. Antonio testified that he wrote on the form “for vacation only” but he did not keep a copy of it. He said that at the time he trusted Sylvia's judgment regarding taking the child to Mexico for vacation, even though he was concerned that Mexico could be dangerous. After Sylvia moved the child to Mexico in November 2009, however, he no longer trusted her judgment. Antonio explained that he believed Sylvia showed poor judgment by taking the child to Mexico without researching in advance whether the area where they were going to settle was dangerous, as well as her decision to take the child to Mexico without having arranged for employment, a home, or a school for the child in advance of the move.

Antonio also testified concerning the events just before...