In the Interest of W.C.B., a Child.

• Decision Date: 19 April 2011
• Docket Number: No. 05–09–01393–CV.,05–09–01393–CV.
• Parties: In the Interest of W.C.B., A Child.
• Court: Texas Court of Appeals

337 S.W.3d 510

In the Interest of W.C.B., A Child.

No. 05–09–01393–CV.

Court of Appeals of Texas, Dallas.

April 19, 2011.

Ronald W. Uselton, Sherman, for Appellant.Sheila Renee Shea, Jason L. Butscher, Butscher & Dunn, Sherman, for Appellee.Before Justices FITZGERALD, LANG–MIERS, and FILLMORE.

OPINION

Opinion By Justice LANG–MIERS.

R.C. (Mother) appeals from an order modifying the parent-child relationship and appointing M.B. (Father) joint managing conservator with the exclusive right to designate the primary residence of the child. We affirm the trial court's order.

Background

Mother and Father were divorced in 2007; Mother was given the exclusive right to designate the primary residence of W.C.B., their son who was two years old at the time. The final decree of divorce contained a residency restriction to Grayson and its adjacent counties. If Mother wanted to move from that area, the decree required Father's agreement or a court order. Mother and W.C.B. moved to Illinois in January 2009. She did not have Father's agreement or a court order. Father filed a petition to modify the parent-child relationship in which he asked the court to appoint him joint managing conservator with the exclusive right to designate the child's primary residence.¹ After a hearing, the trial court granted Father's petition and appointed him joint managing conservator with the exclusive right to designate the child's primary residence. Mother requested findings of fact and conclusions of law, but when the trial court failed to make them, Mother did not file a notice of past due findings and conclusions.² Mother filed a motion for new trial alleging the evidence was legally and factually insufficient to support the trial court's order on the petition to modify and asserting she had a meritorious defense. After a hearing, the court denied the motion for new trial.³ Mother appeals.

In her sole issue on appeal, Mother argues that the trial court abused its discretion by modifying the divorce decree to appoint Father as “primary conservator” of the child.

Standard of Review

We review a trial court's order on a petition to modify conservatorship for an abuse of discretion. In re B.M., 228 S.W.3d 462, 464 (Tex.App.-Dallas 2007, no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably or without reference to guiding principles. See In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.). In family law cases, the abuse of discretion standard of review overlaps with traditional sufficiency standards of review. Id. As a result, legal and factual insufficiency are not independent grounds of reversible error, but instead are factors relevant to our assessment of whether the trial court abused its discretion. Id. To determine whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and whether it erred in its exercise of that discretion. Id.

When, as here, findings of fact are neither properly requested nor filed, we imply all necessary findings of fact to support the trial court's order. Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex.App.-Dallas 2008, no pet.). However, when the appellate record includes the reporter's record, the trial court's implied findings may be challenged for legal and factual sufficiency. Brock v. O'Neal, No. 01–09–00103–CV, 2010 WL 2545609, at *3 (Tex.App.-Houston [1st Dist.] June 24, 2010, no pet.) (mem.op). In a legal sufficiency review, we consider the evidence in the light most favorable to the court's order and indulge every reasonable inference that supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); In re S.E.K., 294 S.W.3d 926, 930 (Tex.App.-Dallas 2009, pet. denied). When considering a challenge to the factual sufficiency of the evidence, we consider all the evidence and determine whether the evidence supporting the order is so weak or so against the overwhelming weight of the evidence that the order is clearly wrong and manifestly unjust. See City of Keller, 168 S.W.3d at 822. When the evidence is conflicting, we must presume that the fact-finder resolved the inconsistency in favor of the order if a reasonable person could do so. See id. at 821. The trial court does not abuse its discretion if some evidence of a substantial and probative character exists to support the trial court's decision. S.E.K., 294 S.W.3d at 930. The trial court is in the best position to observe the witnesses and their demeanor, and we give the court great latitude when determining the best interest of a child. Id.

Applicable Law

A trial court may modify conservatorship of a child if the petitioner proves by a preponderance of the evidence that the modification is in the child's best interest and the circumstances of the child, a conservator, or other party affected by the existing conservatorship order have materially and substantially changed since the rendition of the existing order. Tex. Fam.Code Ann. § 156.101(a)(1)(A) (West Supp.2010); A.B.P., 291 S.W.3d at 95; Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex.App.-Dallas 2004, no pet.).

The best interest of the child is always the primary consideration in determining issues of conservatorship. See Tex. Fam.Code Ann. § 156.101; A.B.P., 291 S.W.3d at 96. In the context of residency restrictions, our 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.).

In considering whether a material and substantial change of circumstances has occurred, the trial court compares the evidence of the conditions that existed at the time of the entry of the prior order with the evidence of the conditions that existed at the time of the hearing on the petition to modify. A.B.P., 291 S.W.3d at 95; see In re C.C.J., 244 S.W.3d 911, 919 (Tex.App.-Dallas 2008, no pet.). Whether a change in residency is a material and substantial change of circumstances depends on the facts of the case. See Lenz, 79 S.W.3d at 17–18; D.M.D., 2009 WL 280465, at *3–4 (noting additional factors to consider include, depending on the facts of the case, the child's desires, the child's current and future physical and emotional needs, any physical or emotional danger to the child, the parental abilities of the individuals involved and their plans for the child, the stability of the home, acts or omissions by a parent tending to show the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent); Bates, 81 S.W.3d at 430 (noting factors to consider in determining whether relocation is a material and substantial change as including, among others, the distance involved; whether the relocation would deprive the noncustodial parent from regular and meaningful access to the child; the impact of the move on the child's future contact with the noncustodial parent; the motive for the move; the motive for opposing the move; the proximity, availability, and safety of travel arrangements).

Discussion

In this case, Mother complains that there is legally and factually insufficient evidence to support the trial court's modification of conservatorship. She does not attack any specific implied finding, but she argues that the only evidence of a change in circumstances was her “sudden and (questionably) unannounced move ... to Illinois.” She argues that there was no evidence W.C.B. suffered any harm from the move, other than “perhaps the distance from his father.” And she contends that the court granted Father's petition “as a punishment” for her move to Illinois. She also argues that the evidence shows she was prepared to move back to Texas. Father argues that in addition to the unauthorized move to Illinois, Mother also “intentionally kept the child from visiting with” him for over two months, which was not in the child's best interest.

The trial court heard testimony from three witnesses at the hearing on the petition to modify conservatorship: Father, Mother, and a licensed professional counselor. The evidence was undisputed that after the divorce was final, Father exercised regular weekly visitations with W.C.B.⁴ The evidence was also undisputed that at the time the petition to modify was filed Mother had moved the child—without Father's consent or a court order—from Grayson County to Illinois, a distance of over 700 miles.⁵

Mother testified that she and W.C.B. moved to Illinois because of her husband's work. She said her husband worked for the same company in Texas that he does in Illinois and that he came to Texas with his boss. But the company was laying off workers and cutting hours in Texas, so when her husband's boss moved back to Illinois and offered her husband his old job back, he took it. Mother testified that her husband knew about the residency restriction, but she did not know whether he had looked for work in the Grayson County area. She said she told Father in November 2008 that there was a possibility she would need to move, and she said Father refused to agree to lift the residency restriction. She said she left with W.C.B. in late January 2009 and sent Father a letter telling him about their move. The evidence showed that the letter was never delivered to Father. Mother said she never attempted to bring W.C.B. to see his father between the date they moved in January 2009 and the date of the hearing in March because of...