Appeal from the 309th District Court Harris County, Texas
Trial Court Case No. 2014-70680
consists of Justices Keyes and Bland.
OPINION ON REHEARING [*]
grant rehearing, withdraw our opinion and judgment dated June
1, 2017, and issue this opinion and judgment in their place.
Because we have granted rehearing, the appellant's motion
for en banc reconsideration is moot.
appeal arises from a dispute between divorcing parents over
the managing conservatorship of their children. The trial
court awarded sole managing conservatorship to the father and
possessory conservatorship to the mother. On appeal, the
mother contends the trial court erred in denying her motion
for new trial challenging that ruling.
that the trial court erred in denying the mother's motion
for new trial. We reverse the portion of the final decree of
divorce appointing the father as sole managing conservator,
affirm the remainder of the decree, and remand this case to
the trial court for a new trial solely on the issue of
Turrubiartes and Jose Pablo Olvera have three children, who
were born before their marriage. The couple married in
February 2013 and separated in October or November 2014,
after Maria and a neighbor had an altercation. The
altercation arose when Jose told the neighbor that the
neighbor's husband and Maria were having an extramarital
affair. After the altercation with her neighbor, Maria left
with the children.
trial court heard testimony from Maria and Jose as to
conservatorship. No other witnesses testified and the parties
introduced little documentary evidence.
testified that Maria refused to tell him where she and the
children lived after they separated. Jose said that
Maria's brother-in-law threatened to kill him if he tried
to visit the children at their new home. Without telling
Jose, Maria withdrew the children from the school they had
attended in Tomball and enrolled them in a different one in
found out where the children were enrolled about a month
later. He visited them there during lunch as often as twice a
week in the year before trial. He did not see the children
outside of school because he did not know their home address.
Maria also told the school that Jose was not allowed to take
them from the school. Had he known where the children lived,
Jose said he still would not have been able to see them there
given the brother-in-law's threat.
further testified that he was the parent who helped the
children with their homework before the separation because he
can speak and read in English. He also said that he had taken
them to the doctor. Jose denied that he ever laid his hands
on Maria. He said that he was asking the court to make him
primary managing conservator because he had the resources to
provide the children a better life and because Maria drove
them without a driver's license and he was concerned
about their safety.
testified that she and the children have lived with her
sister and brother-in-law since the separation. She said that
she and Jose separated after he accused her of adultery and
set her and the children's clothes on fire. According to
her, she didn't leave so much as Jose ran her off. Maria
acknowledged that, before she and Jose had separated, she
spoke with her neighbor's husband by phone almost daily,
but she denied that they had an affair.
also denied that she kept Jose from seeing the children after
the separation. She said that nothing stopped him from
visiting them at her sister's, and that Jose had visited
them outside of school. That said, she could not recall an
occasion when she had allowed Jose to see the children. She
also conceded that she had placed the children in therapy
without consulting Jose. Maria testified that Jose refused to
speak with her, and that he had blocked her telephone number
and would not take her calls.
disputed that Jose had helped the children with homework. She
said that Jose did nothing for the children and had
"never really taken care of" them. Maria
acknowledged that she also did not help the children with
their studies but said that her nephew did. She requested
that "custody be 50/50" because she and Jose were
both parents and he had no history of parenting.
trial court heard testimony from both Maria and Jose about
her immigration status. While Jose is a United States
citizen, Maria is an undocumented immigrant. Maria drives
without a driver's license, which she cannot obtain as an
undocumented immigrant. She testified that she intends to
apply for legal status in the country. But Maria conceded
that she had not yet applied for that status.
hearing the evidence, the trial court granted Maria and Jose
a divorce based on "discord and conflict of
personalities between the two parties that destroys the
legitimate ends of the marriage relationship." It
divided the property as requested by Jose, and appointed him
as sole managing conservator and Maria as possessory
conservator. The trial court also ordered Maria to have a
licensed driver pick up and return the children during the
periods when they were to be in her custody.
moved for a new trial, contending that legally and factually
insufficient evidence supported the appointment of Jose as
sole managing conservator, and that the trial court should
have adhered to the presumption that both parents are to be
joint managing conservators. She also contended that the
trial court refused to appoint her as a joint managing