Gaitan v. Thumann
| Decision Date | 04 September 2014 |
| Docket Number | NUMBER 13-13-00162-CV |
| Parties | ADRIAN GAITAN, Appellant, v. ERICA THUMANN, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 25th District Court of Lavaca County, Texas.
Before Justices Rodriguez, Garza, and Perkes
Appellant Adrian Gaitan appeals a child custody order rendered in favor of appellee Erica Thumann. By one issue, Gaitan argues the trial court abused its discretion in granting Thumann the exclusive right to determine the residence of the parties' minor child. We affirm.
Gaitan and Thumann are the biological parents of O.G., a minor child born in 2008. Prior to their break-up, the couple lived together with O.G. for approximately three years, but never married. During their relationship, Gaitan worked in the offshore oil production industry, but by the time of trial, he was employed full time with a shore based oilfield service company. Thumann worked part-time as a bookkeeper and payroll processor. Thumann testified she used drugs during her relationship with Gaitan and that she was investigated by the Texas Department of Family and Protective Services (CPS) on three separate occasions. One of the investigations occurred when both parents were still living together. At that time, Thumann failed a drug test, and CPS removed O.G. from the home. O.G. thereafter lived with a relative for approximately one month, but was returned to Gaitan and Thumann's home pursuant to a CPS safety plan.
After the parties separated, Gaitan filed an original suit affecting the parent-child relationship, requesting temporary conservatorship of O.G. and for Thumann to have supervised access. Approximately one month later, the parties entered a Rule 11 agreement, approved by the court, giving Thumann the right to designate O.G.'s residence.1 During the pendency of the case, the parties subsequently agreed to the preparation of a home study. The home study concluded that Gaitan should be given the right to designate O.G.'s residence.
Following a bench trial, the trial court held that the parties would remain joint managing conservators, sharing equal rights and duties pertaining to the health and education of the child, but that Thumann would have the exclusive right to establish O.G.'s residence.
Gaitan contends that the trial court improperly relied on the following criteria to support its holding granting Thumann the exclusive right to determine the child's primary residence: (1) that Thumann took a parenting class and Gaitan did not; (2) that Gaitan did not list Thumann's name as an emergency contact at the child's school; (3) the conduct of Gaitan's parents; and (4) the conduct of Thumann after entry of the temporary orders. Gaitan argues that the above factors are not part of the best-interest standard and may not be relied on by the trial court. We disagree.
In determining which joint managing conservator will have the exclusive right to establish the primary residence of the children, the trial court is vested with broad discretion. See In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.); see also In re D.W.J.B., 362 S.W.3d 777, 780 (Tex. App.—Texarkana 2012, no pet.) ("We review a trial court's decision regarding custody, control, and possession matters involving a child under an abuse of discretion standard."). The trial court's judgment will be disturbed only where the record as a whole shows that the trial court abused its discretion.2 Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas 2011, pet.denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. Moreno v. Perez, 363 S.W.3d 725, 737 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)); see Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam) (). We accord the trial court great latitude in judging credibility and concern for the child's best interest. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005); In re B.L.D., 113 S.W.3d 340, 348 (Tex. 2003).
A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied). A trial court does not abuse its discretion when it makes a decision on conflicting evidence. Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.). If some evidence of a substantive and probative character exists to support the trial court's decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.); see In re J.C., 346 S.W.3d 189, 193 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The evidence need not be compelling or conclusive to support the trial court's exercise of discretion. See Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.—Houston [1st Dist.] 1993, writ denied) ().
When the trial court does not file findings of fact and conclusions of law, it is implied that the trial court made all the necessary findings to support its final order. See Burns, 116 S.W.3d at 920. The judgment will be upheld on any legal theory that finds support in the evidence. Strong, 350 S.W.3d at 765; see In re A.N.O., 332 S.W.3d 673, 676 (Tex. App.—Eastland 2010, no pet.); see also In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *1-2 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.).
The Texas Family Code establishes the best interest of the child as the primary consideration when courts determine conservatorship of a child. TEX. FAM. CODE ANN. § 153.002 (West, Westlaw through 2013 3d C.S.). Section 153.134 lists six specific factors in determining best interest.3 Id. § 153.134(a) (West, Westlaw through 2013 3d C.S.). Several, but not all, of the listed factors correspond with those set out by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors are:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Id. at 372. This list is by no means exhaustive. Id. Although Holley involved the termination of parental rights, appellate courts look to the factors listed there in determining the issue of best interest in other suits affecting the parent-child relationship. See, e.g., In re C.R.O., 96 S.W.3d 442, 451 (Tex. App.—Amarillo 2002, pet. denied); see also Shoemake v. Shoemake, No. 13-05-00421-CV, 2007 WL 1288815, at *4 (Tex. App.—Corpus Christi May 3, 2007, no pet.) (mem. op.).
George Matthews conducted the home study on Thumann and Gaitan. Matthews did not identify any deficiency regarding Thumann's ability to meet O.G.'s emotional and physical needs, but concluded that Gaitan should be the parent with the right to designate the child's primary residence. In reaching this conclusion, Matthews believed that Gaitan demonstrated a great deal of stability and would be better able to meet the needs of the child on a more long-term basis. Matthews testified that the home study was conductedapproximately eleven months before trial. The trial court, however, also heard the following testimony regarding Thumann obtaining a job and a home and the potential effect of Thumann's change of circumstances:
We believe that the trial court was presented with a different set of facts at the time of trial than what Matthews faced at the time of the home study. Therefore, it wasreasonable for the court to reach a different conclusion than Matthews regarding which parent should have the right to designate the child's residence.
Additionally, the trial court heard testimony regarding drug use. Although Thumann acknowledged her past drug use, she testified that her most recent drug use occurred in the fall of 2010, when she was still in a relationship with Gaitan. She further stated that Gaitan provided her with the drugs and used drugs with her on previous occasions. According to Thumann, the child was not...
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