Echols v. Olivarez

• Decision Date: 30 August 2002
• Docket Number: No. 03-01-00410-CV.,03-01-00410-CV.
• Parties: Weldon ECHOLS, Jr., Appellant, v. Susanna OLIVAREZ, Appellee.
• Court: Texas Court of Appeals

85 S.W.3d 475

Weldon ECHOLS, Jr., Appellant, v. Susanna OLIVAREZ, Appellee.

No. 03-01-00410-CV.

Court of Appeals of Texas, Austin.

August 30, 2002.

Mark W. Clemens, Campbell & Morgan, P.C., Austin, for appellant.

Linda Icenhauer-Ramirez, Austin, for appellee.

Before Justices KIDD, YEAKEL and PATTERSON.

LEE YEAKEL, Justice.

Appellant Weldon Echols, Jr. appeals from an order of the district court rendered in a suit to modify the parent-child relationship. Echols is the father of the child subject to the modification order. In the order, the court granted appellee Susanna Olivarez, the child's mother, the exclusive right to establish the child's primary residence without limitation or restriction. In two issues, Echols contends that the evidence presented was legally and factually insufficient to support a finding: (1) that there was a material and substantial change warranting the modification of the existing order; and (2) that the requested modification would be a positive improvement for and in the best interest of the child. We will affirm the order.

BACKGROUND

The child, a boy, was born in October 1993. Echols and Olivarez were not married at the time of his birth and never married. Shortly after the child's birth, Echols and Olivarez began cohabitating. When the child was about two years old, Echols and Olivarez separated. In May 1996, Olivarez filed a petition to establish the child's paternity, which resulted in an agreed final order establishing Echols's paternity in April 1997. The order appointed Echols and Olivarez joint managing conservators of the child, and Olivarez was granted the right to establish the child's primary residence within the state of Texas. Since Echols and Olivarez separated, Echols has married and has two other children.

In early 2000, Olivarez gave birth to a second son. She took extended maternity leave from her employment, and her position was filled in her absence. Olivarez's employer offered her other positions, all lateral moves at her former pay. In addition, her employer offered her a promotion to a new position in Tennessee that paid eight percent more and included an additional ten percent salary bonus. As a result, Olivarez filed a petition to modify the 1997 order, requesting that the district court lift the residence restriction and allow her to move with her family to Tennessee. The district court granted her request, and Echols now appeals.

STANDARD OF REVIEW

In two issues on appeal, Echols contends that the district court abused her discretion in granting Olivarez's motion to modify the 1997 order because the evidence presented at trial was legally and factually insufficient to support the district court's findings: (1) that there had been a material and substantial change warranting a modification of the original order; and (2) that moving with the child would be a positive improvement for and in the best interest of the child. Where, as here, the sufficiency-of-the-evidence and abuse-ofdiscretion standards of review overlap, as they frequently do in family law cases, appellate courts employ a hybrid analysis. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex.App.-El Paso 2000, no writ).

In considering the legal sufficiency of the evidence, an appellate court considers only the evidence that supports the trial court's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Jenkins, 16 S.W.3d at 477. If any probative evidence supports the jury's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing factual sufficiency, we examine all the evidence and reverse only if the trial court's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. King's Estate, 244 S.W.2d at 660; Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.-El Paso 1998, no pet.); Burtch v. Burtch, 972 S.W.2d 882, 888-89 (Tex.App.-Austin 1998, no pet.). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Associated Telephone Directory Publishers, Inc. v. Five D's Publishing Co., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ); A-ABC Appliance of Texas,Inc. v. Southwestern Bell Tel. Co., 670 S.W.2d 733, 736 (Tex.App.-Austin 1984 writ ref d n.r.e.). The reviewing court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court's findings. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985); Abernathy v. Feldis, 911 S.W.2d 845, 848 (Tex.App.-Austin 1995, no writ); Southwestern Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones r. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

A trial court's order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex.App.-Corpus Christi 1992, writ denied). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted without reference to any guiding principles. Downer, 701 S.W.2d at 242. Ditraglia v.Romano, 33 S.W.3d 886, 888 (Tex.App.-Austin 2000, no pet.). The fact that a trial court may decide a matter within its discretionary authority in a different manner from an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 241-42; Ditraglia, 33 S.W.3d at 888. The question of conservatorship of a child is left to the sound discretion of the trial court when it sits as trier of fact. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ. App.-Dallas 1981, no writ). The trial court is in the best position to observe the demeanor and personalities of the witnesses and can "feel" the forces, powers, and influences that cannot be discerned by merely reading the record. Id. Thus, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.-Houston [1st Dist.] 1996, no writ).

Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Lindsey, 965 S.W.2d at 592. The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Id. The appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, the appellate court must conclude that the trial court's decision was neither arbitrary nor unreasonable. Id.; see also, In re De La Pena, 999 S.W.2d 521 (Tex.App.-El Paso 1999, no pet.).

DISCUSSION

By his first issue, Echols contends that the district court abused her discretion in granting Olivarez's motion to modify the 1997 order because the evidence presented at trial was legally and factually insufficient to support a finding that there has been a material and substantial change warranting a modification of that order. The standard for modifying a joint managing conservatorship has always been less stringent than the standard for modifying a sole managing conservatorship. A joint managing conservatorship may be modified if the party requesting the modification: (1) shows that there has been a material and substantial change in circumstances or shows that the decree has become unworkable or inappropriate under the circumstances;¹ and (2) shows that the modification would be a positive improvement for and in the best interest of the child. See Tex. Fam.Code Ann. § 156.202 (West 1996).² The district court made the following finding of fact:

5. The circumstances of Susanna Olivarez have changed since the rendition of the Divorce Decree³ entered April 23, 1997. Since that time, Ms. Olivarez has had a second child, not the subject of this suit. She has moved to a new position with her employer; and she has been promoted to a better job with the same company that involves her relocating outside the state of Texas. This promotion involves more responsibility, more flexibility, opportunity for growth and a raise in pay.

(Footnote added.) The evidence presented at trial indicated that Olivarez had developed a flexible work environment with her present employer; her employer accommodated her schedule as a working mother with a new child. Because of downsizing, her employer could not offer her advancement in the Austin area after her return from maternity leave, but her employer did offer her an advancement opportunity in Tennessee. This position provided additional financial security for the family unit (Olivarez and her two sons), and it also provided Olivarez with additional job responsibilities and continued opportunity for advancement. The combination of factors — the birth of a second son, the loss of her position in Texas due to her extended maternity leave, the new position in Tennessee offering additional financial security, and the expectation of career advancement there — constitutes a material and substantial change since the rendition of the 1997 order.⁴ Accordingly, we conclude that the district court had sufficient information on which to exercise her discretion and did not err in her application of that discretion. We overrule Echols's first issue.

We next determine whether Olivarez's request to modify the 1997 order to allow her to relocate outside Texas with the child would be a positive improvement for and in the best interest of the child. By his second issue, Echols contends that the district court...