Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 222nd District Court Deaf Smith County, Texas
Trial Court No. DR-14L-171, Honorable Roland D. Saul,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
the father of M.F.M. appeals from the trial court's order
in a suit affecting the parent-child relationship. We will
reverse the order of the trial court and remand it for
further proceedings consistent with our opinion.
was born to the unmarried mother and father in 2008. At the
time of the final hearing, M.F.M. was almost eight years old.
M.F.M. lived with her mother and maternal grandmother for
most of her life. M.F.M.'s mother died in September
2013. M.F.M. continued to live with her grandmother after her
mother's death. Her father visited
August 2014, the father filed his original petition in suit
affecting the parent-child relationship, seeking sole
managing conservatorship of M.F.M. After a hearing in January
2015, the trial court signed temporary orders, granting the
grandmother and the father temporary joint managing
conservatorship of M.F.M. and giving the grandmother the
exclusive right to designate the child's residence. The
court also ordered the father to pay monthly child support of
$500. In her counter-petition, the grandmother
asked the court to appoint her the sole managing conservator
of M.F.M., asserting that appointment was in the child's
best interest. The father requested that he be appointed sole
managing conservator because he is the remaining biological
conclusion of the hearing, the court appointed the
grandmother and the father as joint managing conservators,
giving the grandmother the exclusive right to designate the
child's residence, and found such placement was in the
child's best interest. The court stated, "I do think
that taking the child from the grandmother and forcing her to
go with a father, whom she barely knows, would be detrimental
to the child. The father should have standard
visitation." This appeal followed.
father challenges the trial court's order through three
issues. We will begin with the father's second issue
wherein he contends the trial court abused its discretion by
appointing the grandmother, a nonparent, as joint managing
conservator without addressing the parental presumption.
review the trial court's determination of conservatorship
under an abuse of discretion standard. In the Interest of
De La Pena, 999 S.W.2d 521, 526 (citing Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We will
reverse a trial court's conservatorship determination
only if the decision is arbitrary and unreasonable. In re
J.J.G., No. 01-16-00104-CV, 2017 Tex.App. LEXIS 7729, at
*24 (Tex. App.-Houston [1st Dist.] Aug. 15, 2017, no pet.)
(mem. op.) (citing In re J.A.J., 243 S.W.3d 611, 616
abuse of discretion does not occur as long as some evidence
of a substantive and probative character exists to support
the trial court's decision. Whitworth v.
Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st
Dist.] 2007, no pet.). See also In re Marriage of
Vick, No. 07-15-00019-CV, 2016 Tex.App. LEXIS 11975, at
*3 (Tex. App.-Amarillo Nov. 3, 2016, no pet.) (mem. op.)
(reversing portion of judgment setting child-support
obligation of wife). In determining whether the trial court
abused its discretion, we consider whether the trial court
had sufficient evidence upon which to exercise its discretion
and, if so, whether it erred in the exercise of that
discretion. In the Interest of C.G., No.
04-13-00749-CV, 2014 Tex.App. LEXIS 8826, at *12 (Tex.
App.-San Antonio Aug. 13, 2014, no pet.) (mem. op., citations
omitted) (citing In re P.M.G., 405 S.W.3d 406, 410
(Tex. App.-Texarkana 2013, no pet.)). "A trial court has
no discretion to determine what the law is or in applying the
law to the facts and, consequently, the trial court's
failure to analyze or apply the law correctly is an abuse of
discretion." In the Interest of B.F., No.
07-16-00282-CV, 2017 Tex.App. LEXIS 2712, at *9 (Tex.
App.-Amarillo Mar. 29, 2017, no pet.) (mem. op.) (citing
In re American Homestar of Lancaster, Inc., 50
S.W.3d 480, 483 (Tex. 2001) (orig. proceeding)).
as in this case, no findings of fact or conclusions of law
are filed, "we imply all necessary findings to support
the trial court's judgment." In the Interest of
C.G., 2014 Tex.App. LEXIS 8826, at *11 (citing Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
1992); In re B.N.B.,246 S.W.3d 403, 406 (Tex.
App.-Dallas 2008, no pet.)). If a reporter's record is
included in the record on appeal, the implied findings may be
challenged for legal and factual sufficiency. Id.
(citations omitted). "Legal and factual insufficiency
are not independent grounds for asserting error; they are
merely relevant factors in assessing whether a trial court
abused its discretion." Id. (citations
omitted). In a legal sufficiency review, "we view the
evidence in the light favorable to the verdict, crediting
favorable evidence if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could
not." Id. at *12 (citing City of Keller v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). In a factual
sufficiency review, "we view the evidence in a ...