In re Of

• Decision Date: 28 August 2013
• Docket Number: No. 08–11–00350–CV.,08–11–00350–CV.
• Citation: 417 S.W.3d 557
• Parties: In the Interest of T.M.P. and J.C.P., Children.
• Court: Texas Court of Appeals

417 S.W.3d 557

In the Interest of T.M.P. and J.C.P., Children.

No. 08–11–00350–CV.

Court of Appeals of Texas, El Paso.

Aug. 28, 2013.

Brett Bonner Stalcup, Dallas, Steve King, Fort Worth, for Appellee.

Dennis G. Brewer Sr., Irving, for Appellant.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

This is an appeal from a trial court's order in a suit affecting the parent-child relationship. The trial court denied Mother's ¹ motion to terminate Father's parental rights to the children at issue, granted Father's motion to modify rights of conservatorship, and ordered Mother to pay Father's attorney's fees in the amount of $25,000. The trial court also found that Appellants interfered with the possessory rights of Appellees, and held Mother and the maternal grandparents jointly and severally liable for damages in the amount of $50,000. We affirm in part and reverse and render in part.

FACTUAL SUMMARY

On May 30, 2008, Mother filed for divorce in Tarrant County, Texas. An agreed final decree of divorce was signed on August 14, 2009. Mother and Father were named joint managing conservators of their two children, who were three years old and one year old at the time. Mother was awarded the exclusive right to establish the primary residence of the children without regard to geographic location.

By the time the decree was signed, Mother and the children had been living with her parents in South Carolina for approximately three months. The decree set out a specific schedule of Father's possession and access. It also provided that Father's parents were to fly to South Carolina to pick up the children at the beginning of each visitation period and accompany them back to Texas. Likewise, Mother and/or or the maternal grandmother were ordered to fly to Texas at the end of each visitation period and accompany the children back to South Carolina. Father's visitation was to be supervised by chaperones approved by the Tarrant County Community Supervision and Corrections Department and the paternal grandparents had been so approved.²

Visitation went as scheduled for the months of August, September and October of 2009.³ In November, Mother refused to relinquish the children for Father's visitation which was scheduled to run from November 20 until November 26. According to Mother, a few days after returning from the October visit, T.M.P. made an outcry of sexual abuse to her maternal great grandmother who reported it to Mother. Mother and the maternal grandmother both testified that they examined the child and noticed unusual redness on her bottom.Both women observed that T.M.P. rubbed her vaginal area “back and forth, not common to what she's ever done before.” Based on the redness and the outcry, Mother and the maternal grandmother began calling various authorities in both South Carolina and Texas to report their suspicions that Father had sexually abused the child. As a result, T.M.P. was subjected to multiple physical examinations and forensic interviews, none of which resulted in a finding that any abuse had taken place. Father was required to submit to a polygraph examination in accordance with his conditions of probation, which he passed. Despite the fact that none of these investigations revealed any evidence corroborating their suspicions of sexual abuse, Mother and the maternal grandmother refused to allow the scheduled November visit.

On November 19, the night before the paternal grandparents were to fly to South Carolina to pick up the children, Mother sent an e-mail informing them that she would not be surrendering the children for the November visitation because of recent allegations and suspicions of sexual abuse.

The paternal grandparents flew to South Carolina anyway. When Mother did not meet them at the airport as ordered by the divorce decree, they rented a car and drove to Mother's home. It is undisputed that the children, Mother, and her parents were all inside the house, but no one answered the door. At some point, the maternal grandfather called the sheriff and the paternal grandparents sought law enforcement assistance at the sheriff's office. The sheriff told them that there was nothing he could do, and advised them to return to Texas.

On November 24, Father filed a motion for enforcement. This was the first of many petitions filed by the parties, including: (1) a petition in intervention filed by the paternal grandparents; (2) claims by Father and his parents for tortious interference with possessory rights; (3) a petition by Mother to terminate visitation between the children, Father, and his parents; (4) a petition by Mother to terminate Father's parental rights,⁴ and (5) Father's counter-petition seeking to designate the children's primary residence as Tarrant and contiguous counties. A bench trial was conducted in June 2011.

The first matter considered was Mother's petition to terminate Father's parental rights. After Mother and her parents testified, their attorney rested. Father moved for judgment on the termination issue and the trial court granted it. The court then addressed Father's motion to modify and suit for tortious interference with his possessory rights. Father and his parents—who had been permitted to intervene—all testified. After hearing the evidence, the trial court entered orders denying Mother's motion to terminate and motion to modify. Father's motion to modify was granted, with the Mother and Father remaining as joint managing conservators. Mother was granted the exclusive right to establish the domicile and primary residence of the children, limited to Tarrant County and contiguous counties. Father was awarded standard visitation which was to be supervised by his parents for as long as he continued on community supervision. Mother was ordered to deliver the children to the paternal grandparents until such time as Mother relocated to Texas. The court found that Mother and the maternal grandparents had violated Section 42 of the Texas Family Code, had intentionally and knowingly interfered with Father's and the paternal grandparents' possessory rights, and held them jointly and severally liable for damages in the amount of $50,000. Mother was also ordered to pay Father's attorney's fees in the sum of $25,000. Mother and her parents appeal and we proceed without the benefit of findings of fact and conclusions of law.

MODIFICATION OF RESIDENCE RESTRICTIONS

In Issues One and Two, Mother claims the trial court erred in restricting the children's primary residence to Tarrant and contiguous counties because: (1) Father failed to establish a material and substantial change in circumstances; and (2) he failed to show that the modification was in the children's best interest.

Standard of Review

A trial court may modify a conservatorship order if the petitioner proves by a preponderance of the evidence that: (1) the modification would be in the best interest of the child; and (2) the circumstances of the child, a conservator, or other person affected by the order have materially and substantially changed since the date of the rendition of the prior order. Tex.Fam.Code Ann. § 156.101(West Supp.2012). The best interests of the children must always be a court's primary consideration when determining issues of conservatorship. Tex.Fam.Code Ann. § 153.002(West 2008). In the context of residency restrictions, the primary goals are to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex.Fam.Code Ann. § 153.001(a)(West 2008); see Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002); In re D.M.D., No. 05–07–01045–CV, 2009 WL 280465, at *3–4 (Tex.App.-Dallas Feb. 6, 2009, no pet.) (mem. op.); Bates v. Tesar, 81 S.W.3d 411, 430 (Tex.App.-El Paso 2002, no pet.).

We review a trial court's decision to modify a conservatorship order for a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In re M.A.M., 346 S.W.3d 10, 13 (Tex.App.-Dallas 2011, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding principles, or when it fails to correctly analyze the law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied,476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); In re W.C.B., 337 S.W.3d 510, 513 (Tex.App.-Dallas 2011 no pet.). In family law cases, the abuse of discretion standard of review overlaps with traditional sufficiency standards of review. In re W.C.B., 337 S.W.3d at 513,citing In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.). As a result, legal and factual sufficiency are not independent grounds of error in modification cases, but instead are relevant factors in assessing whether the trial court abused its discretion. In re T.D.C, 91 S.W.3d 865, 872 (Tex.App.-Fort Worth 2002, pet. denied). To determine whether the trial court has abused its discretion, we engage in a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. See In re C.A.M.M., 243 S.W.3d 211, 220 (Tex.App.-Houston [14th Dist.] 2007, pet. denied), citing Zeifman v. Michels, 212 S.W.3d 582, 587–88 (Tex.App.-Austin 2006, pet. denied); Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex.App.-Dallas 2007, no pet.); Echols v. Olivarez, 85 S.W.3d 475, 477–78 (Tex.App.-Austin 2002, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The operative inquiry in the first question is the sufficiency of the evidence. In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.). We must...