In the Interest of M.A.M., a Minor Child.

• Decision Date: 12 July 2011
• Docket Number: No. 05–09–00396–CV.,05–09–00396–CV.
• Citation: 346 S.W.3d 10
• Parties: In the Interest of M.A.M., a Minor Child.
• Court: Texas Court of Appeals

346 S.W.3d 10

In the Interest of M.A.M., a Minor Child.

No. 05–09–00396–CV.

Court of Appeals of Texas, Dallas.

April 15, 2011.Rehearing Overruled July 12, 2011.

Kent Frank Brooks, Preston Commons West, Dallas, TX, for Appellant.Michelle May O'Neil, O'Neil Attorneys Family Law, Dallas, TX, for Appellee.Before Chief Justice WRIGHT and Justice FRANCIS and Chief Justice THOMAS, Retired.¹

OPINION

Opinion By Chief Justice THOMAS (Retired).

Father appeals from the trial court's order in a suit to modify the parent-child relationship. In four issues, Father contends the trial court abused its discretion in (1) ordering him to pay child support in excess of guidelines set forth in the Texas Family Code and ordering him to pay a portion of private school tuition, (2) denying his request to have the exclusive right to make decisions concerning the child's education and giving Mother that exclusive right; (3) refusing to lift the domicile restriction so that he could relocate the child to Atlanta; and (4) awarding to Mother the exclusive right to consent to medical, dental and surgical treatment involving invasive procedures and psychological and psychiatric treatment. For the reasons set out below, we modify the trial court's order to delete the requirement that Father pay any portion of the child's private school tuition and to correct the amount of child support that he must pay to $1,200 monthly. We affirm the trial court's order as modified.

Background

Mother and Father were divorced on May 31, 2005. The trial court appointed Mother and Father as joint managing conservators of their only child. Father was given the exclusive right to designate the primary residence of the child within Dallas and contiguous counties. The trial court ordered that decisions regarding the child's education and medical and mental health treatment of the child were to be by agreement between the parents.

In 2006, Father sought to modify the decree to give him the sole right to make education decisions for the child and to modify the time and place of exchange to accommodate the child's school schedule. Mother filed a counter petition to modify seeking to be appointed as sole managing conservator or, alternatively, that she be appointed the person who has the right to designate the primary residence of the child. Mother also requested the exclusive right to make decisions regarding the child's education and medical treatment. Father then filed two amended petitions to modify asking that his right to determine the child's residency not be restricted to Dallas and contiguous counties, that he be named sole managing conservator, and that he be allowed to relocate with the child to Atlanta, Georgia.

The trial court conducted a bench trial over three days in July 2008. The trial court signed its order modifying the divorce decree on January 14, 2009. In its order, the trial court gave Mother the exclusive right to establish the child's primary residence within Dallas and contiguous counties, and to make decisions concerning the child's education and medical and mental health treatment. The trial court also ordered Father to pay seventy-five percent of the child's private school tuition in addition to monthly child support in the amount of $1,500. This appeal timely followed.

Standard of Review

We review a trial court's decision in a case concerning a modification of conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex.App.-Austin 2003, no pet.). A trial court abuses its discretion if it acts arbitrarily or without reference to guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985); Coleman, 109 S.W.3d at 110. We may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Downer, 701 S.W.2d at 242.

Because the traditional sufficiency standard of review overlaps with the abuse of discretion standard in family law cases, legal and factual sufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.); Peck v. Peck, 172 S.W.3d 26, 33 (Tex.App.-Dallas 2005, pet. denied). To determine a legal sufficiency challenge, we must first examine the record for evidence supporting the trial court's finding, while ignoring all evidence to the contrary. Cass v. Stephens, 156 S.W.3d 38, 55 (Tex.App.-El Paso 2004, pet. denied). Second, if there is no evidence to support the trial court's finding, we then examine the entire record to see if the contrary position is established as a matter of law. Id. This standard of review has been distilled into 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 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.). According to this inquiry, the traditional sufficiency review comes into play with regard to the first question. A.B.P., 291 S.W.3d at 95; Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied). Echols, 85 S.W.3d at 478. An appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857. 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.).

The trial court, as the fact finder in this case, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Lindsey, 965 S.W.2d at 591. The unchallenged findings of fact are binding on this Court unless the contrary is established as a matter of law or there is no evidence to support the finding. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). This 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. Lindsey, 965 S.W.2d at 591.

Relocation to Atlanta

In his third issue, Father contends the trial court erred in refusing to lift the domicile restriction to allow Father to relocate with the child to Atlanta.

When a trial court appoints joint managing conservators, it must designate the conservator who has the exclusive right to determine the primary residence of the child. Tex. Fam.Code Ann. § 153.134(b)(1) (West Supp.2009). A trial court may modify an order relating to conservatorship or possession and access to a child if: (1) it is in the best interest of the child; and (2) the circumstances of the child, or conservator, or other party affected by the order have materially and substantially changed since the date or rendition of the order. Tex. Fam.Code Ann. § 156.101(a)(1) (West Supp.2009). The best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child. Tex. Fam.Code Ann. § 153.002 (West 2008). These cases are “intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.” Lenz v. Lenz, 79 S.W.3d 10, 18–19 (Tex.2002). Section 153.134 is silent as to factors a trial court should consider when determining whether a domicile restriction is in the best interest of the child. The supreme court has instructed us to consider the public policies outlined in family code section 153.001(a). Lenz, 79 S.W.3d at 14. Section 153.001 states that the public policy of Texas is to:

(1) assure that children will have frequent and continuing contact with parents who have shown an 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)(1)-(3) (West 2008). The Lenz court noted that a wide array of other factors can be relevant to the determination of a child's best interest after a parental relocation. These include the (1) reasons for and against the move, (2) education, health, and leisure opportunities afforded by the move, (3) accommodation of the child's special needs or talents, (4) effect of extended family relationships, (5) effect on visitation and communication with the noncustodial parent, (6) noncustodial parent's ability to relocate, and (7) child's age. Lenz, 79 S.W.3d at 15–16. We may also consider the general factors relevant to the best interest of a child, such as (1) the child's desires, (2) the child's current and future physical and emotional needs, (3) any physical or emotional danger to the child in the present or future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the child's best interest, (6) the plans for the child by these individuals, (7) the stability of the home, (8) acts or omissions by a parent tending to show that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976).

Both Father and Mother stated in their respective petitions to modify that circumstances of the child or one of the conservators had materially and substantially changed. See Thompson v....