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Gonzalez v. Sanchez

Court of Appeals of Texas, Seventh District, Amarillo

February 23, 2018

ELIZABETH SANCHEZ GONZALEZ, APPELLANT
v.
ELIAS RAMIREZ SANCHEZ, JR., APPELLEE

         On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 26, 598; Honorable Dan Mike Bird, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         Appellant, Elizabeth Sanchez Gonzalez, challenges the trial court's Order in Suit to Modify Parent-Child Relationship. By two issues, she contends the trial court abused its discretion by (1) finding a material and substantial change of circumstances had occurred and (2) granting Appellee, Elias Ramirez Sanchez, Jr., the exclusive right to establish their children's domicile. We affirm.

          Background

         The parties were divorced in April 2013. At that time, the trial court appointed both parents as joint managing conservators of their two children, N.C. S. and C.B.S., [1] with Elizabeth having the exclusive right to designate the children's primary residence within 300 miles of Wilbarger County. Elias was ordered to pay child support. Sometime in 2015, Elizabeth and the children moved to San Angelo in Tom Green County, which is within the geographic restriction. In October 2015, the Texas Attorney General moved to enforce child support and medical support contemporaneously with a motion to transfer venue of the case to Tom Green County.

         Elias objected to the motion to transfer based on evidence that showed the children had not resided in Tom Green County for the required six-month period. On November 15, 2015, he filed a counterpetition seeking to modify the parent-child relationship because Elizabeth's fiancé, a convicted felon, [2] had moved in with her and the children. Elias alleged that Elizabeth allowed people into her home that presented a danger to the children. He requested and was granted a temporary restraining order that restrained Elizabeth from, among other things, leaving the children in the care of her fiancé or other persons of questionable character. The obligation to pay child support remained with Elias.

         The temporary orders were subsequently entered on January 7, 2016, leaving both parents as joint managing conservators-but this time restricting Elizabeth's right to establish the children's domicile to either Wilbarger County or Tom Green County. On February 25, 2016, the trial court again amended the temporary orders, this time to provide that Elias should have the exclusive right to establish the children's domicile in either of the two counties.[3] By that same amended temporary order, the trial court terminated Elias's child support obligation and ordered Elizabeth to start paying support for the children.

         In response, in March 2016, Elizabeth filed her Counterpetition to Modify Parent-Child Relationship seeking to modify custody, eliminate geographic restrictions, and require each party to meet half-way when exchanging possession of the children. She also requested an increase in child support. Her pleading specifically alleged that "[t]he circumstances of the children, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified."

         Following a hearing, the trial court ordered that the parents serve as joint managing conservators with Elias having the exclusive right to establish the children's domicile in Wilbarger County. Elizabeth was also ordered to pay child support. Additional provisions of the trial court's order included Elias taking his children for counseling, making sure the children were not around Yvonne Gonzalez, and following up on his treatment for epilepsy. Elizabeth was ordered to make sure that her father did not live in the home with the children. Pursuant to Elizabeth's request, the trial court entered Findings of Fact and Conclusions of Law.

         Applicable Law

         A trial court may modify a prior conservatorship order if modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since rendition of the prior order. Tex. Fam. Code Ann. § 156.101(a)(1)(A) (West 2014). There are no guidelines as to what constitutes a material and substantial change in circumstances. See In re N.R.T., 338 S.W.3d 667, 679 (Tex. App.-Amarillo 2011, no pet.).

         The burden to establish a material and substantial change in circumstances by a preponderance of the evidence falls on the party seeking modification. Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.-Dallas 2004, no pet.). A material and substantial change occurs when the party seeking modification demonstrates the conditions that existed at the time of entry of the prior order have changed as compared to the circumstances existing at the time of the modification hearing. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.-Austin 2006, pet. denied).

         A trial court's findings on modification of conservatorship shall be based on a preponderance of the evidence. Tex. Fam. Code Ann. § 105.005 (West 2014). The best interest of the child is the primary consideration in determining issues concerning conservatorship and possession of or access to a child. § 153.002. A court may use numerous factors to determine best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors, which are not exhaustive, 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 individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) ...


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