Opinion
NO. 03-16-00360-CV
03-22-2017
Phillip Randall Clemons, Appellant v. Vianney Lynn, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 254,204, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Phillip Randall Clemons (Father) appeals the trial court's final order in this suit affecting the parent-child relationship. In two issues, Father challenges that portion of the order granting appellee Vianney Lynn (Mother) the exclusive right to determine the primary residence of their child. We will affirm the trial court's order.
BACKGROUND
Mother and Father's child, H.C.C., was born on October 2, 2010. After the relationship between Mother and Father ended, Mother filed a petition in December 2011 seeking to be appointed a joint managing conservator with Father and to be granted the exclusive right to determine H.C.C.'s primary residence. Father subsequently filed an answer and counter-petition, also seeking to be named a joint managing conservator and to be granted the exclusive right to determine the primary residence of the child without geographical restriction.
Following a final hearing, at which the trial court heard testimony concerning H.C.C.'s relationship with both Mother and Father, the trial court signed an order appointing Mother and Father as joint managing conservators, designating Mother as the conservator with the right to determine H.C.C.'s primary residence (with restriction to Bell County, Bexar County, and their contiguous counties), and requiring Father to pay child support and provide health insurance for H.C.C. The trial court later issued findings of fact and conclusions of law in which the trial court concluded, among other things, that "the parties both love and support the child and are appropriate parents to be named joint managing conservators of H.C.C." and that the court's decisions regarding conservatorship and access "are in the best interest of H.C.C." This appeal followed.
STANDARD OF REVIEW
We review a trial court's decisions regarding conservatorship, including a determination of which conservator will have the right to establish the child's primary residence, for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.).
In family law cases, the abuse-of-discretion standard overlaps with traditional sufficiency standards of review. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied); see Miller v. Miller, No. 03-14-00603-CV, 2015 WL 6830754, at *5 (Tex. App.—Austin Nov. 4, 2015, no pet.) (mem. op.). Consequently, legal and factual sufficiency are not independent grounds of errors but are relevant factors in determining whether the trial court abused its discretion. Zeifman, 212 S.W.3d at 587. In applying the standard, we engage in a two-pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its discretion and (2) whether the trial court erred in its application of that discretion. Echols, 85 S.W.3d at 477. The focus of the first inquiry is the sufficiency of the evidence. Zeifman, 212 S.W.3d at 588. Under the second inquiry, we must decide whether, based on the evidence before it, the trial court made a reasonable decision. Id.
To determine if the evidence is legally sufficient to support the trial court's exercise of discretion, we view the evidence in the light most favorable to the trial court's findings, crediting favorable evidence if a reasonable factfinder could and disregarding evidence to the contrary unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). When reviewing the evidence for factual sufficiency, we consider and weigh all the evidence presented and will set aside the trial court's findings only if they are so contrary to the overwhelming weight of the evidence such that they are clearly wrong and unjust. Id. at 826. When the evidence conflicts, we must presume that the factfinder resolved any inconsistencies in favor of the order if a reasonable person could do so. Id. at 822.
The trial court is best able "to observe the demeanor and personalities of the witnesses and [to] 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record." Echols, 85 S.W.3d at 477. The fact that we might decide the issue differently than the trial court does not establish an abuse of discretion. Zeifman, 212 S.W.3d at 587. In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues, and we cannot substitute our conclusions for those of the trial court if there is sufficient evidence to support the court's findings. Echols, 85 S.W.3d at 477. "An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision." Id.
ANALYSIS
In two issues on appeal, Father contends that the trial court abused its discretion in designating Mother as the conservator with the right to establish H.C.C.'s primary residence because, according to Father, the evidence is legally and factually insufficient to support the trial court's conclusion that the designation is in H.C.C.'s best interest.
When the trial court appoints joint managing conservators, it must designate the conservator who has the exclusive right to determine the primary residence of the child. Tex. Fam. Code § 153.134. In determining which joint conservator should have this exclusive right, the best interest of the child is the court's primary consideration, as it is in determining all "issues of conservatorship and possession of and access to the child." Id. § 153.002. Trial courts generally have wide latitude in determining what is in a child's best interest, Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and may use a non-exhaustive list of factors to aid in the determination, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The factors 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 individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These factors are not exhaustive, and no single factor is controlling. See id. at 372; M.C. v. Texas Dep't of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied). The factfinder is not required to consider all of the factors, and the presence of a single factor may, in some instances, be adequate to support a best-interest finding. M.C., 300 S.W.3d at 311. With these factors in mind, we review the evidence in the record.
The evidence presented at the final hearing established that Father is a chief warrant officer in the United States Army with top security clearance. Father has been in military service for more than twenty-one years and was stationed at Fort Hood in Killeen, Texas, at the time of H.C.C.'s birth. Father was later reassigned to Fort Sam Houston in San Antonio, Texas, where he is currently assigned and where he will be stationed for at least two to three years. Prior to Father's reassignment, the parties exercised equal visitation with H.C.C., pursuant to a mutually agreed schedule.
Father testified that he has always had a close relationship with H.C.C. and that he and H.C.C. enjoy spending time together. Father and H.C.C. participate in a variety of outdoor activities, such as fishing and archery, and often attend military functions together. Father also testified that he prepares H.C.C.'s meals during their time together and that he sometimes picks H.C.C. up from daycare early and takes him to lunch. According to Father, he has been the primary person to set up medical appointments for H.C.C. and has attended every medical appointment that H.C.C. has had. Father explained that his career in the military has been accommodating and flexible with respect to his care of H.C.C.
Father also testified about the quality of life that H.C.C. would have if Father were appointed his primary custodian. Father explained that he currently rents a three-bedroom house that is close to Fort Sam Houston Elementary School, which H.C.C. would attend if he were to reside with him and which, according to Father, is rated "pretty high." Father explained that he and H.C.C. would also continue to attend a nearby church in San Antonio, where H.C.C. is already enrolled in preschool. Father testified that he strives to give H.C.C. "a solid foundation" and "the right morals and character that a young man needs."
In addition, Father testified that he has daughter from his prior marriage, C., and that C. has a stepsister, S. According to Father, H.C.C. is able to visit with C. and S. every other week during the summer and the children enjoy spending time together. Father acknowledged that his ex-wife, C.'s mother, obtained a protective order against him during their divorce based on allegations of abuse, but according to Father, "it was dropped by her." Father explained that his ex-wife trusts him and that she often asks if her stepdaughter S. can join C. for visits.
The trial court also heard testimony from Mother. At the final hearing, Mother testified that she is currently employed as a waitress and as a bartender on Saturday nights and, at the time of the final hearing, had worked at the restaurant for three months. Prior to the restaurant, Mother worked at a warehouse as an office manager for two months and, before that, at an elementary school. She explained that, unlike previous jobs, her hours at the restaurant are flexible and she is able to work while H.C.C. is in school. Her parents or a babysitter watch H.C.C. when she works on Saturday nights.
Mother also testified that she has another son from a prior relationship, M., who is two years older than H.C.C. Mother and the boys previously lived in a two-bedroom apartment but have lived in a four-bedroom house in Killeen with her boyfriend and his two children since March 2015. According to Mother, H.C.C. and M. are very close, and she believes it would be best for the siblings to attend the same school and participate in the same activities. Mother testified that she and H.C.C. have a close relationship and that they regularly go to the swimming pool, to the park, and to the movies. According to Mother, she has attended H.C.C.'s medical appointments except when she was unable to get off from work to do so.
In addition, Mother testified that she and Father separated because they could not get along and that Father was sometimes verbally abusive. Mother testified that H.C.C. sometimes makes abusive statements toward her, such as calling her "stupid," and that these statements are similar to those made by Father in the past. According to Mother, she filed, but eventually voluntarily dismissed, a motion for protection against Father.
Mother's stepfather, Enrique Garcia, testified in support of Mother's request for custody of H.C.C. Garcia testified that he is very close to H.C.C. and sees him "three or four times" a month, often participating in activities that include Mother and M. Garcia stated that, based on his personal observations, Mother is "the best Mother there is" and described Mother's home as safe and well kept. Garcia told the court that when H.C.C. first returns from visiting Father he is "very aggressive," "[doesn't] want to listen," and "talks back to his mom." Garcia acknowledged, however, that he had not personally observed Father and H.C.C. together and that he could not comment on Father's parenting abilities.
Finally, both Father and Mother presented the testimony of additional witnesses, including co-workers and friends, who attested to Father's and Mother's parenting abilities. These witnesses generally described H.C.C. as a happy child and, based on their observations, testified that both parents are good and attentive parents to H.C.C.
In deciding which parent should have the right to determine H.C.C.'s primary residence, the trial court, as the finder of fact, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. As the reviewing court, we defer to these credibility determinations and do not substitute our judgment for that of the court, even if we would reach a different conclusion based on the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); see also Jhaveri v. McBeth, No. 03-14-00261-CV, 2015 WL 8591659, at *2 (Tex. App.—Austin Dec. 10, 2015, pet. denied) (mem. op.) (mere fact that appellate court might decide issue differently than trial court does not establish abuse of discretion). The trial court has wide latitude in determining the best interest of a child, Gillespie, 644 S.W.2d at 451, and in reviewing the exercise of this discretion, we determine whether the record contains "some evidence of a substantive and probative character to support the court's decision," Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.). Having reviewed the evidence under the appropriate standards, we conclude that there is sufficient competent evidence to support the trial court's conclusion that it is in H.C.C.'s best interest to give Mother, as joint conservator with Father, the right to determine the child's residence. See Tex. Fam. Code § 153.134. The trial court had legally and factually sufficient evidence on which to exercise its discretion and did not err in the application of that discretion. See Echols, 85 S.W.3d at 479. Accordingly, the trial court did abuse its discretion by designating Mother as the conservator with the exclusive right to determine H.C.C.'s primary residence. We overrule Father's issues on appeal.
CONCLUSION
Having overruled appellant's issues on appeal, we affirm the judgment of the trial court.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: March 22, 2017