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In re B.L.W.

Court of Appeals of Texas, Twelfth District, Tyler

September 27, 2019

IN THE INTEREST OF B.L.W., A CHILD

          APPEAL FROM THE COUNTY COURT AT LAW HOUSTON COUNTY, TEXAS (Tr. Ct. No. 17CCL-131)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen, Chief Justice.

         Brandon Lynn Walker appeals the trial court's final order in a suit affecting the parent-child relationship. On appeal, he contests the legal and factual sufficiency of the custody and child support orders, and the trial court's failure to grant his motion for new trial, request for additional findings of fact and conclusions of law, and motion to suspend judgment. We affirm in part and remand in part.

         Background

         Brandon Lynn Walker is the father and Kamena Taquay Handsborough is the mother of B.L.W. On August 23, 2017, Brandon filed an original petition in suit affecting the parent-child relationship, stating that it was in the child's best interest for him to be appointed sole managing conservator of the child and that Kamena be obligated to pay child support. In temporary orders filed on August 31, Brandon was appointed temporary sole managing conservator of B.L.W. and Kamena was appointed temporary possessory conservator. Brandon was granted the exclusive right to designate the primary residence of the child. The temporary order granted Kamena possession of the child for one day each week.

         Kamena filed an original answer and counterpetition in suit affecting the parent-child relationship, and a motion to modify the temporary order. After the hearing on the motion to modify, the trial court ordered that both parents be appointed temporary joint managing conservators and that Kamena be granted visitation three days each week. The trial court requested that the parties' attorneys work out a visitation schedule. The record does not include an order on Kamena's motion to modify. On June 7, 2018, the trial court held a final hearing. On June 10, the trial court filed an order in suit affecting the parent-child relationship, appointing Brandon and Kamena as joint managing conservators of the child. Kamena was granted the exclusive right to designate the primary residence of the child without regard to geographical location. Brandon was granted "extended" standard possession of the child. Further, Brandon was obligated to pay child support and reimbursement of fifty percent of Kamena's health insurance premiums each month. On August 6, Brandon filed a motion for new trial and the motion was overruled by operation of law. After a request and a notice of past-due findings of fact and conclusions of law, the trial court filed findings of fact and conclusions of law. Subsequently, Brandon filed a motion to suspend judgment and a request for additional findings of fact and conclusions of law. The trial court denied Brandon's motions. This appeal followed.

         Standard of Review

         We review a trial court's order for conservatorship or support under an abuse-of-discretion standard. Iliff v. Iliff, 339 S.W.3d 126, 133 (Tex.App.–Austin 2009), aff'd, 339 S.W.3d 74 (Tex. 2011); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (child support); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (conservatorship, control, possession, and access). We will not disturb the trial court's ruling unless a clear abuse of discretion is shown. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex.App.–Austin 2006, pet. denied). "A trial court abuses its discretion only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex.App.–Austin 2014, no pet.) (quoting In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex.App.– Texarkana 2004, no pet.)).

         When reviewing for abuse of discretion, "legal and factual sufficiency of the evidence are not independent grounds for asserting error but are relevant factors in determining whether the trial court abused its discretion." Id. (citing Zeifman, 212 S.W.3d at 587); In re Davis, 30 S.W.3d 609, 614 (Tex.App.–Texarkana 2000, no pet.). In considering whether the trial court abused its discretion, we determine (1) whether there was sufficient evidence upon which to exercise its discretion and if there was, (2) whether the application of its discretion was erroneous. See Zeifman, 212 S.W.3d at 588 (citing Echols v. Olivarez, 85 S.W.3d 475, 477–78 (Tex.App.–Austin 2002, no pet.)). We conduct the applicable sufficiency review with regard to the first question. In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.); Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied). We then proceed to determine whether, based on the evidence, the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857. If some evidence of a substantive and probative character exists to support the trial court's decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.).

         "When the appellate record includes the reporter's and clerk's records, ... the trial court's findings, express or implied, are not conclusive and may be challenged on appeal for evidentiary sufficiency." Lopez v. Rendsland, No. 03-10-00084-CV, 2010 WL 4053787, at *5 (Tex.App.– Austin Oct. 12, 2010, no pet.) (mem. op.) (citing Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003)). Further, a trial court's findings of fact are reviewed by the same standards as a jury verdict. See id.; Avila v. Avila, No. 03-05-00030-CV, 2006 WL 2986225, at *4 (Tex.App.– Austin Oct. 20, 2006, no pet.) (mem. op.). However, the trial court has wide discretion in determining what is in the best interest of the child and its findings will not be disturbed absent an abuse of discretion. Avila, 2006 WL 2986225, at *4 (citing Gillespie, 644 S.W.2d at 451; Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex.App.–Austin 2003, no pet.)).

         Finally, in a trial to the bench, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex.App.–Austin 2012, no pet.); see City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn, 433 S.W.3d at 823 (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.–Houston [14th Dist.] 2009, no pet.)). Therefore, we defer to the trial court's judgments that involve credibility determinations and its factual resolutions affected by those determinations. Id. at 823-24.

         Conservatorship

         In his first issue, Brandon contends that the trial court abused its discretion in determining custody. In his argument, he does not distinguish whether he is challenging the appointment of both parents as joint managing conservators or if he is challenging the appointment of Kamena as the parent with the exclusive right to establish the primary residence of the child. We will consider both contentions.

         Applicable Law

         The best interest of the child is the controlling factor in making a determination regarding conservatorship and terms and conditions of conservatorship. Tex. Fam. Code Ann. § 153.002 (West 2014). The trial court is given wide latitude in determining the best interest of a minor child. See In re M.R., No. 07-13-00440-CV, 2014 WL 2591616, at *6 (Tex.App.–Amarillo May 9, 2014, no pet.) (mem. op.) (citing Gillespie, 644 S.W.2d at 451).

         In determining the best interest of the child, a number of factors have been considered, including (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 individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

         The family code also provides a list of factors that we will consider in conjunction with the above-mentioned Holley factors. See Tex. Fam. Code Ann. § 263.307(b) (West 2019). These include (1) the child's age and physical and mental vulnerabilities; (2) the magnitude, frequency, and circumstances of the harm to the child; (3) whether the child is fearful of living in or returning to the child's home; (4) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (5) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (6) whether the child's family demonstrates adequate parenting skills; and (7) whether an adequate social support system consisting of an extended family and friends is available to the child. See id. § 263.307(b)(1), (3), (5), (7), (11), (12), (13).

         Analysis

         In considering whether the trial court abused its discretion in appointing both parents as joint managing conservators and appointing Kamena as the parent with the exclusive right to designate the primary residence of the child, we must determine whether there was sufficient evidence upon which to exercise its discretion. See Coburn, 433 S.W.3d at 823; Zeifman, 212 S.W.3d at 588. The evidence shows that the incident which led to Brandon filing a petition began in August 2017, when B.L.W. was approximately eighteen months old. Kamena stated that she was stressed, mad, hot-headed, and "tired of doing everything by [herself]." She characterized her behavior that night as a "minor breakdown." Kamena stated that she could never get Brandon to take care of B.L.W. even when he was not working, or assist her in paying for child care. On that Friday night, she asked Brandon to take care of the child and when he refused, went to his location to continue their argument. According to Brandon, he could not keep the child on Friday night because he was supposed to haul hay on Saturday morning. He stated that he had earlier agreed to take care of the child on Saturday. Their argument escalated and Brandon called law enforcement.

         According to Kamena, both parents stated that they did not want to take care of the child. After law enforcement called the Department of Family and Protective Services (the "Department"), Brandon agreed to take the child rather than have the Department take the child into custody. Kamena stated that her purpose was not to effectively give custody of the child to Brandon. This evidence supports the trial court's findings of fact that Kamena requested Brandon's assistance in caring for the ...


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