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In re A.C.M.

Court of Appeals of Texas, Eighth District, El Paso

December 23, 2019

IN THE INTEREST OF A.C.M., a Child.

          Appeal from the 383rd District Court of El Paso County, Texas (TC# 2008AG5651)

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

          OPINION

          GINA M. PALAFOX, Justice

         This is an appeal from an order in a suit to modify the parent-child relationship after a de novo hearing. Appellant Armando Montez ("Father") appeals from that order insofar as it permits Appellee Melissa Soliz ("Mother") to designate the primary residence of the couple's minor son ("A.C.M.") without any geographic restriction. Father contends that the evidence is legally and factually insufficient to support various facts implicitly found by the trial court and that those erroneous findings resulted in an order that is not in the best interest of the child. We affirm.

         BACKGROUND

         In July 2014, Father petitioned to modify a child support review order rendered on August 25, 2008.[1] As pertinent to this appeal, Father requested that the prior order be modified to appoint him as the person with the right to designate the primary residence of the child, A.C.M., and that the residence of the child be restricted to El Paso County, Texas. On August 28, 2014, the parties entered agreed temporary orders designating Mother as the person with the right to determine the child's primary residence, but restricting such residence to El Paso County, Texas. In addition, Father was granted possession of and access to the child according to the extended standard possession order. Mother was not represented by counsel at the time and testified that she felt pressured into signing the agreed order.

         On September 15, 2016, an associate judge signed findings and recommendations including an assessment that it is in the best interest of the child to restrict his primary residence to El Paso County, Texas, and to grant Father possession of and access to the child according to the extended standard possession order. Mother then requested a de novo hearing in the district court. After conducting an evidentiary hearing (as discussed in further detail below), the district court ordered, among other things, that "[t]here will be no geographic restriction on the child's residence to El Paso County" and that "[Mother] shall be permitted to relocate a year from the date of this ruling." The court further ordered that Father "shall have possession of and access to the child according to the Standard Possession Order as set forth in the Child Support Review Order from August 22, 2008."

         Father filed a request for findings of fact and conclusions of law, but no such findings and conclusions were timely filed and Father did not file a notice of past due findings and conclusions. See Tex. R. Civ. P. 296, 297. Father now appeals from that portion of the court's order permitting Mother to designate the child's primary residence without geographic restriction.

         ISSUES

         Father raises six issues challenging the legal and factual sufficiency of the evidence to support the trial court's implicit findings that (1) Father had not consistently exercised his extended visitation rights; (2) Father had never attended school hearings or conferences and rarely attended the child's doctor visits; and (3) Mother wanted to relocate to the Dallas/Fort Worth area for financial and educational reasons. In a seventh issue, Father asserts that these erroneous findings "cause[d] the court to deny Father's request to impose a geographical restriction because it was in the best interest of the child[.]"

         STANDARD OF REVIEW

         A trial court's determination of what is in the best interest of the child "will be reversed only when it appears from the record as a whole that the court has abused its discretion." Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding principles, or when it fails to correctly analyze the law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); In re M.V., 583 S.W.3d 354, 360 (Tex. App.-El Paso 2019, no pet.).

         Determining whether the trial court abused its discretion involves a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion? and (2) did the trial court err in its application of discretion? In re M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d 557, 562 (Tex. App.-El Paso 2013, no pet.). In the absence of findings of fact and conclusions of law, we imply all necessary findings of fact to support the trial court's order. In re M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d at 563. If, however, the appellate record includes a reporter's record, the trial court's implied findings may be challenged for legal and factual sufficiency. In re M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d at 563. Such sufficiency challenges are considered as factors relevant to whether the trial court abused its discretion rather than independent grounds of error. In re M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d at 562.

         Whether there is legally sufficient evidence is determined by "view[ing] the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). "When reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust." In re M.V., 583 S.W.3d at 361. If there is a conflict in the evidence, we must presume that the fact finder resolved the inconsistency in favor of the order if a reasonable person could do so. Id. If there is evidence of a substantive and probative character supporting the trial court's decision, we cannot conclude that the court abused its discretion in reaching that decision. Id.

         DISCUSSION

         Modification of a geographic residency restriction

         A court may modify an order providing the terms and conditions of conservatorship if (1) the modification would be in the best interest of the child and (2) the circumstances of the child, a conservator, or other person affected by the order have materially and substantially changed since the date of the rendition of the prior order. Tex. Fam. Code Ann. § 156.101; see In re T.M.P., 417 ...


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