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In re M.V.

Court of Appeals of Texas, Eighth District, El Paso

August 14, 2019

IN THE INTEREST OF M.V., A MINOR.

          Appeal from 383rd District Court of El Paso County, Texas (TC # 2012DCM05770)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE.

         Erica Manso and Erick Vargas, who were never married, are the parents of M.V. On November 5, 2012, the trial court entered an Order Establishing the Parent-Child Relationship (the original order), designating both parents as joint managing conservators of M.V., but naming Manso as the primary managing conservator with the right to designate M.V.'s primary residence. The original order contained a geographic residency restriction that limited Manso's right to designate M.V.'s residence to El Paso County and any counties contiguous to El Paso County. On February 21, 2017, Manso filed a motion to modify the parent-child relationship, seeking to lift the geographic residency restriction, arguing that a material and substantial change of circumstances had occurred that warranted lifting the restriction, and that doing so would be in M.V.'s best interest. Vargas opposed the motion.

         Following a hearing on July 10, 2017, the trial court granted the motion and issued an Order on Modification, lifting the geographic residency restriction and giving Manso the exclusive right to designate M.V.'s primary residence. Vargas appeals, contending that the trial court abused its discretion in granting the modification. For the reasons set forth below, we affirm the trial court's judgment.[1]

         BACKGROUND

         At the hearing on her motion to modify, Manso explained that she sought to lift the geographic residency restriction because she had recently married Isaiah Salazar, and she wished to relocate to San Antonio where Salazar resided, along with M.V., who was five years old at the time, to live with her new husband as a family unit.[2] Manso testified that she met Salazar at a church camp approximately six years before the hearing, and that during that time the two of them had dated on and off and had traveled to see each other once or twice a month for the past year.

         At the time of the hearing, Manso lived in an apartment in El Paso with her parents and two older siblings, and shared a bedroom, as well as a bed, with M.V. Because she did not have a car, Manso had to take a bus to her part-time job at a UPS store, and M.V. had to ride the bus to his Head Start program. In addition, due to her lack of transportation, Manso was only able to attend one parent-teacher conference at M.V.'s school that year.

         Manso testified that Salazar lived with his parents and sister in San Antonio, and that upon moving to San Antonio, she and M.V. would share Salazar's bedroom, but that M.V. would have his own bed in the room. Manso also testified that Salazar had been employed at a lumber mill in San Antonio for the past three or four years, and that he owned a car she would be able to use once she moved there. Although Manso acknowledged that she had not lined up a job in San Antonio at the time of the hearing, she testified that there were UPS stores in San Antonio that were similar to the one where she worked in El Paso.

         Vargas testified that he also lived with his parents and his younger brother in El Paso, and that he and his family had a close relationship with M.V. Vargas testified that he often took M.V. hiking, and was interested in enrolling M.V. in extracurricular activities in El Paso.). Vargas further testified that he was very involved with M.V.'s school and had attended two parent-teacher conferences during the prior school year. M.V.'s teacher testified at the hearing, confirming that Vargas had been involved in his son's education, had attended two parent-teacher conferences, and had stopped by the school at least every other week to inquire about M.V.'s progress. She acknowledged, however, that Manso had also been involved in her son's schooling throughout the year, and that Manso had attended one of the two parent-teacher conferences she had held that year. She testified that M.V. was a well-behaved and attentive student, and described him as being a "happy" and "positive" child.

         At the hearing, Vargas acknowledged that he and Manso had been having ongoing conflicts for over a year with respect to their agreed-upon visitation schedule, in part because Vargas had started a new job that required him to work a rotating schedule, which interfered with his ability to adhere to the schedule. Although Vargas had the right to visit M.V. on Thursdays and alternate weekends, Manso testified that Vargas never picked up M.V. on Thursdays, and that Vargas called her two or three times a month to try to reschedule his weekend visitation. Vargas, however, claimed that he and Manso had a "verbal agreement," in which she had consented to accommodate his new work schedule, and he therefore had not pursued any legal proceedings to address the issue until after Manso filed her motion to modify when he filed a counterpetition to modify the parties' visitation schedule.[3]

         At the close of the hearing, the trial court granted Manso's motion to modify, and thereafter issued an "Order on Modification," on August 22, 2017, finding that it was in the "best interest" of the child to lift the geographic residency restriction. The Order on Modification again named the parties as joint managing conservators, and again designated Manso as the primary conservator with the exclusive right to designate M.V.'s primary residence. It also included standard possession orders for parents living more than 100 miles apart.[4] See Tex.Fam.Code Ann. § 153.313 (setting forth standard visitation schedules for possessory conservators who live more than 100 miles from the residence of the child). Although Vargas filed a timely request for the trial court to enter findings of fact and conclusions of law, the trial court did not grant the request.[5]

         After the trial denied Vargas's motion for a new trial, this appeal followed.

         DISCUSSION

         In a single issue, Vargas argues that the trial court abused its discretion in granting Manos' motion for modification, asserting that there was insufficient evidence to support the trial court's finding that it was in M.V.'s best interest to lift the geographic ...


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