In re C.R.O.

• Decision Date: 13 September 2002
• Docket Number: No. 07-01-0294-CV.,07-01-0294-CV.
• Citation: 96 S.W.3d 442
• Parties: In the Interest of C.R.O. and D.J.O., Minor Children.
• Court: Texas Court of Appeals

96 S.W.3d 442

In the Interest of C.R.O. and D.J.O., Minor Children.

No. 07-01-0294-CV.

Court of Appeals of Texas, Amarillo.

September 13, 2002.

Rehearing Overruled October 22, 2002.

COPYRIGHT MATERIAL OMITTED

Shaddox Compere Walraven & Good PC, Jo Chris G. Lopez, San Antonio, for appellant.

Short & Jenkins LLP, Sallee S. Smyth and Paula Vlahakos, Houston, for appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

DON H. REAVIS, Justice.

Appellant Jennifer Lee Hylton appeals the trial court's order modifying the parent-child relationship by restricting the minor children's primary residence to Fort Bend County, Texas or contiguous counties of Texas, as long as appellee William T. O'Brien resides it Fort Bend County or its contiguous counties. Presenting seven issues, Hylton questions whether: (1) the trial court abused its discretion in imposing a domicile restriction on the children's primary residence to the Fort Bend County area; (2) O'Brien presented sufficient evidence upon which the trial court could exercise its discretion; (3) the trial court abused its discretion in restricting the children's residence to Fort Bend County or contiguous counties as long as O'Brien resides in that area; (4) the trial court's order infringes on her constitutional right to travel and to equal protection of the law; (5) the evidence is legally and factually sufficient to support findings of fact 18, 23, and 24; (6) she is entitled to abatement of the appeal until the court fulfills its duty to make complete and meaningful findings of fact; and (7) the trial court erred in failing to award her attorney's fees. Concluding that Hylton has not established a clear abuse of discretion' by the trial court, based upon the rationale expressed herein, we affirm.

Hylton and O'Brien were divorced on May 5, 1997, in Georgia. At the time of divorce, the parties had two sons, C.R.O., who was seven, and D.J.O., who was almost four.¹ Child custody and other issues were resolved by settlement agreement. Pursuant to the Georgia decree, the parties were awarded joint legal custody, with Hylton having the right to primary physical custody. Soon after the divorce, Hylton remarried and moved with the children to Fort Bend County, Texas. Three months thereafter O'Brien moved to Melbourne, Florida for an employment opportunity as a health actuary.

Hylton's husband, who previously worked for Continental Airlines in Houston for seven years, resigned his position and accepted new employment with Hawaiian Air for a substantial pay increase. On July 18, 2000, Hylton notified O'Brien by e-mail of her husband's job offer and indicated that if he accepted the position, they would be relocating to Hawaii in September. On August 15, 2000, O'Brien filed a motion to modify the parent-child relationship alleging that the order had become unworkable or inappropriate under existing circumstances and requesting that the court restrict the domicile of the children to Fort Bend County, Texas. O'Brien also sought and was granted a temporary restraining order preventing, among other things, Hylton from removing the children beyond the court's jurisdiction. On August 20, 2000, Hylton's husband moved to Hawaii to begin his new employment and she and her four children remained in Fort Bend County. On September 1, 2000, in response to O'Brien's motion, Hylton filed her answer and counter-petition requesting an increase in child support. In November 2000, O'Brien rented an apartment in the Fort Bend County area and began more frequent visitation with his sons. O'Brien, however, did not leave his employment in Florida until the end of February 2001. After several hearings on temporary orders, on March 15, 2001, the trial court signed its order which, relevant to this appeal, restricts the children's domicile to Fort Bend County and the contiguous counties so long as O'Brien continues to reside in that area and increases the amount of child support.

We first address Hylton's sixth issue by which she requests that the appeal be abated and the cause remanded to the trial court to make and file more "complete and meaningful" findings of fact. She asserts that she has suffered harm by the trial court's refusal to make and file additional findings of fact as requested because it has prevented her from properly presenting her appeal. After the trial court filed its findings of fact and conclusions of law, Hylton filed objections thereto and a request for additional findings of fact and conclusions of law as follows:

the court should state the specific reasons for its finding that it is in the best interest of the children to restrict their domicile to Fort Bend County;

the court should state the reasons the standard possession order for parents residing more than 100 miles apart would not provide appropriate visitation for William T. O'Brien were Jennifer Lee Hylton allowed to relocate; and

the court should find that the attorney's fees incurred by Jennifer Lee Hylton are reasonable.

Following a proper request and reminder, it is mandatory for a trial court to make and file findings of fact and conclusions of law. Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 771 (Tex. 1989). The failure to respond where all requests have been made is presumed harmful, unless the record affirmatively shows no injury. Id; see also Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.1996). The appropriate question in determining harm is whether a party will be forced to guess the reason or reasons that the trial court ruled against him. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627, 629 (Tex.App.-Corpus Christi 1992, no writ).

Hylton contends that despite her request for additional findings, the trial court did not address what facts formed the basis of its decision that a domicile restriction would be in the best interest of the children. She argues that the trial court's refusal to make additional findings has placed her at a disadvantage in challenging the domicile restriction on appeal. We disagree. By Finding of Fact 23, which is specifically challenged by Hylton as not being supported by legally and factually sufficient evidence, the trial court ordered a domicile restriction "based on the quality of the children's relationship with their father." As Hylton has challenged this finding, she has not shown harm or that she was prevented from properly presenting her complaint on appeal. Thus, we decline to abate the appeal and remand the cause to the trial court for further findings. Issue six is overruled.

Next, we continue our analysis by setting forth the appropriate standard of review. A trial court's modification order will not be disturbed on appeal unless the complaining party establishes a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles, or whether it acted arbitrarily and unreasonably. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex.1985). The fact that a trial court may decide a matter within its discretion in a different manner than an appellate court does not demonstrate that an abuse of discretion has occurred. Id. A trial court is in the best position to observe the demeanor and personalities of the witnesses that cannot be evaluated from a cold reading of the record. Warchol v. Warchol, 853 S.W.2d 165, 169 (Tex.App.-Beaumont 1993, no writ). Thus, as long as some evidence of a substantive and probative character exists to support the trial court's order, no abuse of discretion has occurred. Valdez v. Valdez, 9.30 S.W.2d 725, 731 (Tex.App.-Houston [1st Dist.] 1996, no writ).

The abuse of discretion standard in a family law case overlaps the traditional sufficiency standard of review. See Crawford v. Hope, 898 S.W.2d 937, 940 (Tex.App.-Amarillo 1995, writ denied) (holding that under the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in determining whether the trial court abused its discretion); see also. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.); Doyle v. Doyle 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no pet.). Thus, in applying the abuse of discretion standard, an appellate court must engage in a two-pronged inquiry: (1) whether the trial court had sufficient evidence upon which to exercise its discretion, and (2) whether the trial court erred in applying its discretion. In re De La Pena, 999 S.W.2d 521, 525-26 (Tex. App.-El Paso 1999, no pet.). The traditional sufficiency review applies in the first inquiry and then a determination must be made whether the trial court's decision was neither arbitrary nor unreasonable. /c/.

Findings of fact entered in a bench trial have the same force and dignity as a jury's verdict. In Interest of Striegler, 915 S.W.2d 629, 638 (Tex.App.-Amarillo 1996, writ denied); Seidel, 10 S.W.3d at 368. Thus, they are subject to legal and factual sufficiency challenges where there is a complete statement of facts in the record. Striegler, 915 S.W.2d at 638. In reviewing a legal sufficiency challenge, we must examine the record for any probative evidence which supports the finding while disregarding all evidence or reasonable inferences to the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). A factual sufficiency challenge requires us to examine the record to determine if there is some probative evidence to support the finding, and then determine whether, in light of the entire record, the finding is manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

In determining conservatorship and possession issues, the best interest of the child shall always be the primary consideration. Tex. Fam.Code Ann. § 153.001 (Vernon 1996).² In...