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Turrubiartes v. Olvera

Court of Appeals of Texas, First District

December 19, 2017


         On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2014-70680

          Panel consists of Justices Keyes and Bland.


          Jane Bland Justice.

         We 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.

         This 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.

         We hold 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 conservatorship.


         Maria 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.

         The trial court heard testimony from Maria and Jose as to conservatorship. No other witnesses testified and the parties introduced little documentary evidence.

          Jose 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 Magnolia.

         Jose 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.

         Jose 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.

         Maria 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.

         Maria 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.

         Maria 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.

         The 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.

         After 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.

         Maria 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 ...

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