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 ...