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Mitchell v. Wright

Court of Appeals of Texas, Third District, Austin

July 7, 2017

Bryan Mitchell, Appellant
v.
Jessica Wright, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-FM-08-005048, HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Goodwin.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         Appellant Bryan Mitchell and appellee Jessica Wright are the parents of J.K.M.W. (the child). In a 2009 order entered in a suit affecting the parent-child relationship, Wright was appointed the child's sole managing conservator, Mitchell was appointed the child's possessory conservator, and the primary residence of the child, who was one year old, was limited to Travis County and those counties contiguous to Travis County. In July 2015, Wright filed a petition to modify the 2009 order, seeking to have the geographic residency restriction lifted. Following a hearing, the trial granted the requested modification. On appeal, Mitchell challenges the lifting of the geographic residency restriction. Because we conclude that the trial court did not abuse its discretion in lifting the restriction, we affirm the trial court's order.

         BACKGROUND[1]

         The hearing on Wright's petition to modify the 2009 order occurred in April 2016. Wright, who was the child's primary caregiver, sought to lift the geographic residency restriction because she was engaged and planned to move with the child, who was seven years old at the time of the hearing, to Vancouver, Washington, to live with her fiancé. The witnesses at the hearing were the parties, Mitchell's mother, and the guardian ad litem.

         Much of the evidence at the hearing on the parties' circumstances was undisputed. The evidence showed that Mitchell and Wright were never married to each other and that they had ongoing conflicts with each other, primarily over Mitchell's possession and access to the child. At the time of the modification hearing, Mitchell was married to another woman and had another child, and he had not consistently followed the possession schedule in the 2009 order, been involved at the child's school, or attended extracurricular activities, [2] although he and his family had maintained a relationship with the child throughout the child's life. He also was behind on child support payments to Wright. He was unemployed but looking for work in the "tech industry . . . that pays a decent amount of money."[3] According to Mitchell, he was "very hireable" with "lots of experience in computer software"-a "tech guy."

         The parties' primary disputes were the reason behind Mitchell's inconsistent contact and possession of the child and the effect that the move would have on the child and on Mitchell's relationship with the child. According to Mitchell, Wright blocked communications, failed to share information regarding the child, alienated the child from Mitchell, and prevented him from exercising his rights to possession and access on an ongoing basis throughout the child's entire life. Mitchell and his mother also testified that moving the child to Vancouver would be detrimental to the child. They described the child's relationship with extended family and friends in the Austin area that would be affected if the child moved.

         Wright testified about her plans to move into her fiancé's home in Vancouver with the child. According to Wright, her fiancé was successfully self-employed, and the child had developed a close relationship and communicated with him "almost every day." Wright also testified about the school that the child would attend and other anticipated activities if they move to Vancouver and that she and the child were temporarily living with her parents to "save money" for the move. Wright denied that she was the reason that Mitchell had not exercised his right to possession consistently and that a standard possession order for parents living more than 100 miles apart actually would give Mitchell the right to more possession than he had been taking under the 2009 order. Her plan for maintaining the child's relationship with Mitchell was "extended visitation" and "holidays, " and she testified that she was willing to share travel costs. She also testified that her current employer had agreed to transfer her to Vancouver and that the child was "ready for the adventure" and "very, very, very excited" to move. In her opinion, moving was in the child's best interest, and they were both going to have a "better life."

         The guardian ad litem testified that she had limited contact with Mitchell, but she had contact with Wright, including a home visit, and contact with the child, including a school visit. In her interview with the child, she used a tool-"structured assessment for children in relationships and families" (SCARF) booklet-and, based on her interactions with the child, she testified that the child "obviously he sounds like he wants to go." She also testified that she did not find a reason to believe that Wright would not support the relationship between Mitchell and the child going forward or that Wright talked badly about Mitchell in front of the child, and she did not think that the child was coached prior to her contact with the child.

         Following the hearing, the trial court granted the modification lifting the geographic residency restriction. In its order, the trial court found that the material allegations in the petition to modify were true and that the requested modification was in the child's best interest. The trial court also terminated Mitchell's child support obligation "to offset the cost of long-distance travel for [him] to exercise his periods of possession with the child" and found that the termination of the child support obligation was in the child's best interest. Mitchell thereafter filed a motion for new trial that was overruled by operation of law. This appeal followed.

          ANALYSIS

         In one issue, Mitchell argues that the trial court abused its discretion by lifting the geographic residency restriction and allowing Wright and the child to move from Austin, Texas, to Vancouver, Washington. Mitchell argues that Wright failed to establish that a material and substantial change in circumstances had occurred and that the trial court abused its discretion and thus erred by finding that lifting the geographic residency restriction was in the child's best interest. See Tex. Fam. Code ยง 156.101(a)(1) (allowing court to modify order governing conservatorship of child if modification would be in ...


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