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In re of S.H.

Court of Appeals of Texas, Second District, Fort Worth

July 6, 2017

IN THE INTEREST OF S.H., A MINOR CHILD

         FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 324-555105-14

          PANEL: WALKER, MEIER, and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          LEE GABRIEL JUSTICE

         Appellant T.A.R. (Mother) and Appellee E.S.H. (Father) are S.H.'s biological parents. In 2014, Mother initiated an original suit affecting the parent-child relationship (SAPCR), and Father filed a counterpetition. Following a bench trial, the trial court signed its final order, which (1) grants Father the exclusive right to designate S.H.'s primary residence; (2) grants Father the exclusive right to make educational decisions concerning S.H.; (3) restricts S.H.'s residence with Father and Mother to within a ten-mile radius of Father's then-current residence; and (4) establishes a week-on, week-off possession schedule. In what we construe as four issues, Mother argues that each of these four orders constitutes an abuse of discretion. We affirm.

         I. BACKGROUND

         Mother initiated this SAPCR on April 9, 2014. On June 26, 2014, the trial court signed temporary orders appointing Father and Mother as temporary joint managing conservators of S.H. and granting Mother the exclusive rights to designate S.H.'s primary residence within Tarrant County and to make decisions concerning her education. The case proceeded to a final bench trial on the merits on July 23, 2015, and August 21, 2015. After both parties finished their closing arguments, the trial court did not render judgment but instead informed the parties that it would send a rendition of judgment to them once it had reached a decision.

         On August 25, 2015, the trial court sent its rendition of judgment to the parties, which included an order that Father and Mother would have a week-on, week-off possession schedule. Mother filed a request for findings under section 153.258 of the family code on the ground that the week-on, week-off possession order substantially deviated from the standard possession order set forth in the family code. See Tex. Fam. Code Ann. § 153.258 (West 2014). The trial court entered its findings. Mother now appeals.

         II. STANDARD OF REVIEW

         All of Mother's issues concern matters of conservatorship and custody and are therefore subject to an abuse-of-discretion standard of review. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.-Fort Worth 2012, no pet.). Under that standard, we will not disturb the trial court's conservatorship or custody determinations unless it acted without reference to any guiding rules or principles in making them-unless, in other words, those determinations were arbitrary or unreasonable. See J.A.J., 243 S.W.3d at 616; Halleman, 379 S.W.3d at 447.

         In determining issues of conservatorship and custody, the trial court's primary consideration must be the best interest of the child. See Tex. Fam. Code Ann. § 153.002 (West 2014); In re J.F., No. 02-14-00324-CV, 2015 WL 6556969, at *2 (Tex. App.-Fort Worth Oct. 29, 2015, no pet.) (mem. op.). In our review of a trial court's conservatorship and custody determinations under an abuse-of-discretion standard, challenges to the legal and factual sufficiency of the evidence to support those determinations do not present independent grounds for review; rather, legal and factual sufficiency are simply factors we consider in determining whether the trial court abused its discretion. See J.F., 2015 WL 6556969, at *1; In re W.M., 172 S.W.3d 718, 725 (Tex. App.-Fort Worth 2005, no pet.). To determine whether a trial court abused its discretion because the evidence is legally or factually insufficient to support a trial court's conservatorship or custody determination, we consider (1) whether the trial court had sufficient information upon which to exercise its discretion and (2) whether it erred in its application of that discretion. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.-Fort Worth 2010, no pet.); W.M., 172 S.W.3d at 725. The traditional sufficiency review is involved in answering the first question, and whether the trial court made a reasonable decision is involved in answering the second. M.M.M., 307 S.W.3d at 849; W.M., 172 S.W.3d at 725.

         III. THE TRIAL COURT'S FINDINGS

         In its rendition, the trial court found that the following orders were in S.H.'s best interest:

1. [Mother] and [Father] are appointed as joint managing conservators.
2. . . . [Father] is ordered to have the exclusive right to make educational decisions [for S.H.] after consultation or reasonable efforts to consult with [Mother].
3. Neither party is ordered to have the right to establish the primary residence of [S.H.]; however, [S.H.'s] residences are to be located within a ten (10) mile radius of [Father's] current residence unless the parties mutually agree otherwise in writing.

         In its findings for variance from standard possession order, the trial court made the following findings:

1. The Court finds that it is in [S.H.'s] best interest that the parties should be named as joint managing conservators of [her].
2. The Court finds that the rights as set forth in §151.001 of the Texas Family Code should be equally allocated between [Father and Mother].
3.The Court finds that the parties sharing equally the rights as set forth in §151.001 would encourage and cause the parties to accept a positive relationship between [S.H.] and the other parent.
4. The Court finds that [Father and Mother] participated in the rearing of [S.H.] before the filing of this suit.
5. The Court finds that it would be in the best interest of [S.H.] for [Father and Mother] to have a geographical restriction in the establishment of a residence so as to insure the continued participation of both [Father and Mother] in the parenting of [S.H.].
6. The Court finds that the geographical restriction as set forth in its rendition letter is an appropriate restriction to insure the continuing participation of [Father and Mother] in the parenting of [S.H.].
7. Under [section 153.134(b)(1) of the family code], it is mandatory that, absent an agreed parenting plan, the Court designate the conservator who has the exclusive right [to] determine the primary residence of [S.H.]. The court finds, and only because of this statute, that [Father] should have that exclusive right[, ] as the Court has found that it is in the best interest of [S.H.] for him to have the exclusive right to make educational decisions for [S.H.] after consultation or reasonable efforts to consult with [Mother].
8. The Court finds that [Mother] did not consistently encourage a co-parenting relationship with [Father] during the pendency of this case.
9. The Court finds that [Mother] attempted to deprive [Father] of possession of [S.H.] on more than one occasion during the pendency of this case and, without good cause, prevented access by [Father] with [S.H.].
10. The Court finds that there are concerns that [Mother] will not encourage a positive relationship between [S.H.] and [Father] if she should have more rights or more possession time of [S.H.] than does [Father].
11. The Court finds that there are concerns that [Mother], if she perceives that she has a superior position to [Father] insofar as [S.H.] is concerned, will withhold possession of [S.H.] from [Father] if he should disagree with her on day to day issues regarding [S.H.].
12.The Court finds that the parties will more likely foster a good co-parenting relationship if neither party is awarded what either would consider to be a superior position to the ...

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