Appeal from the 29th District Court Palo Pinto County, Texas
Trial Court Cause No. C47145
consists of: Wright, C.J., Willson, J., and Bailey, J.
an appeal from an order granting a petition to modify the
parent-child relationship between T.E.G. and her parents. The
father, C.E.G., appeals and presents three issues for our
review. In his first two issues, C.E.G. challenges the
sufficiency of the evidence. In his third issue, C.E.G.
argues that the trial court erred by admitting evidence of
his pending criminal charges. We affirm.
and L.E.G. are the parents of T.E.G. On December 5, 2011, the
trial court in Harris County, Texas, entered a final decree
of divorce dissolving their marriage. The divorce decree
designated C.E.G. as the parent with the right to determine
the child's primary residence in Harris County and its
contiguous counties. The divorce decree also allowed C.E.G.
to designate T.E.G.'s primary residence outside of this
geographic restriction if L.E.G. no longer resided in Harris
County or its contiguous counties. When the divorce decree
was rendered, L.E.G. lived in Kansas, and C.E.G. lived in
Harris County. In November 2012, C.E.G. moved with T.E.G.
into a house owned by C.E.G.'s mother in Mineral Wells,
which is located in Palo Pinto County, Texas. In August 2013,
L.E.G. moved to Fort Worth, Texas. In September 2015, C.E.G.
moved to Spring, Texas, for a new job and left T.E.G. with
his girlfriend, Nicole Belanger, in Mineral Wells so that
T.E.G. could continue to go to school there. Belanger and
T.E.G. eventually joined C.E.G. in Spring.
January 29, 2016, L.E.G. filed a motion to transfer this suit
to Palo Pinto County, as well as a Petition to Modify the
Parent-Child Relationship. On April 26, 2016, C.E.G. filed a
motion to enforce child support against L.E.G. On April 27,
2016, the trial court in Harris County granted L.E.G.'s
motion to transfer the suit to Palo Pinto County. On May 17,
2016, L.E.G. filed a First Amended Petition to Modify the
Parent-Child Relationship, in which she sought appointment as
the person who had the right to designate the primary
residence of T.E.G. within 100 miles of Palo Pinto County.
trial court in Palo Pinto County considered L.E.G.'s
first amended petition to modify the parent-child
relationship at a bench trial conducted on August 17, 2016.
At the hearing, L.E.G. testified that she amended her
petition to seek primary conservatorship of T.E.G. because
she had concerns about "[t]he stability of [T.E.G.] and
some concerns with [C.E.G.'s] criminal background."
L.E.G. testified that C.E.G. "is very quick to get a new
job and uproot [T.E.G.'s] life" and that she wanted
T.E.G. to have a more stable life. C.E.G. started a new job
in Houston on September 2, 2015. C.E.G. testified that he
works from 12:00 p.m. to 10:00 p.m. five days a week and
every other weekend. His job duties also require him to
occasionally travel out of state. L.E.G. testified that
Belanger was the person caring for T.E.G.'s needs in
Spring. C.E.G. also testified that Belanger cared for T.E.G.
in Mineral Wells after C.E.G. moved and that Belanger and her
family often care for T.E.G. in Spring when he travels for
L.E.G. introduced into evidence, over C.E.G.'s
objections, three indictments charging C.E.G. with the
third-degree felony of tampering with a governmental record,
the second-degree felony of engaging in organized criminal
activity, and a state-jail felony theft in Palo Pinto County.
L.E.G. said that she was under the impression that Belanger,
who helped care for T.E.G., was also indicted. L.E.G.
testified that these pending criminal charges caused her to
become concerned about C.E.G.'s ability to continue to
care for T.E.G.
conclusion of the hearing, the trial court awarded L.E.G. the
right to determine T.E.G.'s primary residence within 100
miles of Palo Pinto County and entered its final order on
October 6, 2016. The trial court later issued findings of
fact and conclusions of law, in which the court found that
C.E.G. "works six days per week from 12:00 p.m[.] to
10:00 p.m. one week and five days per week from 12:00 p.m. to
10:00 p.m. the next week, " while L.E.G. "works
Monday through Friday from 8:30 a.m. to 5:30 p.m." The
trial court also found that C.E.G.'s "current job
requires that he travel at various times to Indiana and
Wisconsin." The trial court also found that L.E.G. had
observed that T.E.G. had "signs of emotional
distress" after moving to Spring and that L.E.G. was
concerned about "the lack of time" C.E.G. spends
with T.E.G. "due to his work hours and
responsibilities." Additionally, the trial court found
that C.E.G. had been indicted for three separate offenses in
Palo Pinto County and that Belanger was a codefendant. The
trial court concluded that L.E.G. "proved by a
preponderance of the evidence that the circumstances of
[T.E.G.], [L.E.G.], [C.E.G.] or other party affected by the
prior order have materially and substantially changed since
the date of rendition of the order to be modified." The
trial court also concluded that L.E.G. "proved by a
preponderance of the evidence that her requested modification
was in the best interest of [T.E.G.]." Finally, the
trial court concluded that L.E.G. "proved by a
preponderance of the evidence that [L.E.G.] and [C.E.G.]
should be named joint managing conservators of [T.E.G.] and
that [L.E.G.] should have the exclusive right to designate
the child's primary residence within 100 miles of Palo
Pinto County, Texas."
challenges the sufficiency of the evidence supporting the
trial court's decision to modify the conservatorship of
T.E.G. A trial court may modify the terms and conditions of
conservatorship if the circumstances of the child or a
conservator have materially and substantially changed since
the prior order and if the modification would be in the best
interest of the child. Tex. Fam. Code Ann. §
156.101(a)(1) (West 2014). C.E.G.'s first issue addresses
the "material and substantial change" element, and
his second issue addresses the "best interest of the
child" element. See id.
court has broad discretion to decide the best interest of a
child in family law matters such as custody, visitation, and
possession. Accordingly, we review a decision to modify
conservatorship for a clear abuse of that discretion. In
re A.J.E., 372 S.W.3d 696, 698 (Tex. App.-Eastland 2012,
no pet.); see Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982). A trial court abuses its discretion
when it acts arbitrarily or unreasonably or when it fails to
correctly analyze or apply the law. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). In any
case involving an issue of conservatorship, the best interest
of the child must always be the primary consideration of the
trial court. Fam. § 153.002.
the abuse of discretion standard, issues relating to the
legal and factual sufficiency of the evidence are not
independent grounds of error, but only factors used to assess
whether the trial court abused its discretion.
A.J.E., 372 S.W.3d at 698. To determine whether an
abuse of discretion has occurred because the evidence is
legally or factually insufficient to support the trial
court's decision, we must inquire as follows: (1) Did the
trial court have sufficient information upon which to
exercise its discretion? (2) Did the trial court err in its
substantive and probative character to support its decision?
Id. at 699.
contends that L.E.G. did not present sufficient evidence to
establish that there had been a material and substantial
change in circumstances since the time of trial. C.E.G.
argues that, because the original divorce decree allowed him
to move T.E.G. anywhere within Harris County and contiguous
counties, or anywhere if L.E.G. moved, there could not have
been a material change in circumstances. However, L.E.G.
presented other evidence of material and substantial change
at trial that the court found to be true. L.E.G. presented
evidence that C.E.G. and Belanger, upon whom C.E.G. relied
heavily to care for T.E.G., were both facing multiple
criminal charges. L.E.G. also presented evidence that
C.E.G.'s new job required him to be away from home for
substantial periods of time and that he worked long hours.
Although C.E.G. argues that the trial court based its
decision "solely on the fact [C.E.G.'s] family lived
in Palo Pinto County, " we note that a trial judge's
oral statements are not a substitute for findings of fact and
conclusions of law. See In re W.E.R., 669 S.W.2d 716
(Tex. 1984); Tate v. Tate, 55 S.W.3d 1, 7 n.4 (Tex.
App.- El Paso 2000, no pet.). Moreover, the evidence
indicated that T.E.G. was close to her family in Mineral
Wells. The trial court's findings of fact indicate that
there were factors other than C.E.G.'s and T.E.G.'s
move to Spring that weighed in favor of the trial court's
order. We conclude that the trial court did not abuse its
discretion when it found that there was a material and
substantial change in circumstances. We overrule C.E.G.'s
directs his second issue at the trial court's best
interest finding. We review a trial court's best interest
finding in conservatorship proceedings by using the
Holley factors. In re M.C.M., No.
11-13-00375-CV, 2014 WL 3698283, at *5 (Tex. App.-Eastland
July 17, 2014, no pet.) (mem. op.); see Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These
non-exhaustive factors include (1) the desires of the child,
(2) the emotional and physical needs of the child now and in
the future, (3) the emotional and physical danger to the
child now and in the future, (4) the parental abilities of
the individuals seeking custody, (5) the plans for the child
by these individuals, (6) the stability of the home, (7) the