Opinion
No. 05-07-01045-CV
Opinion issued February 6, 2009.
On Appeal from the 256th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-05888-Z.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
Opinion By Justice MAZZANT.
MEMORANDUM OPINION
This is an appeal from an order in a suit to modify the parent-child relationship. The trial court authorized Mother to designate the residence of child D.M.D. on condition that Mother reside in Kaufman County or a contiguous county. The court contingently authorized Father to designate D.M.D.'s residence if Mother did not abide by the residency restriction. Mother appeals and raises three issues in which she challenges the residency restriction. We conclude that the trial court abused its discretion by imposing the residency restriction and consequently reverse.
I. Background
Mother and Father were married at the time of their daughter D.M.D.'s birth in 1998. They divorced in Kaufman County, Texas, in 2000. The divorce decree does not appear in our record, but Mother asserts without contradiction that the court ordered that D.M.D. would reside with her. Father asserts without contradiction that the decree imposed a residency restriction of Kaufman County or a county contiguous to Kaufman County. Mother moved to Dallas before D.M.D. started kindergarten. Mother asserts, and Father does not dispute, that Mother filed a "suit for modification" in Kaufman County and that the suit was transferred to the 256th District Court in Dallas County. In February 2006, the court signed temporary orders that appointed both parents as temporary joint managing conservators, authorized Mother to establish the primary residence of the child, and specified Father's visitation rights. The court further ordered "that the residence and domicile of [D.M.D.] is her current residence" at a specific address on Druid Lane in Dallas, Texas.
Mother remarried. In July 2006, Mother filed a motion to modify the child-custody order and for new temporary orders. In the motion, she advised the court that she was about to move to Austin, Texas, with her husband. She asked the court to modify the visitation schedule to correspond with statutory standard visitation for parents living over 100 miles apart. On July 28, 2006, the court held a conference in chambers regarding the motion and set the matter for trial in September 2006, but it was not reached at that time. Meanwhile, D.M.D. moved to Austin with Mother and Stepfather and attended school in Austin for the 2006-2007 school year. In October 2006, Mother filed a supplemental motion for temporary orders to adjust the transportation arrangements to be used when D.M.D. visited Father. In November 2006, an associate judge signed a report recommending that the court permit Mother to send D.M.D. to visit Father by air transportation to Love Field and Father to return D.M.D. to Mother in Waco on Sundays.
Mother's motion to modify the child-custody order was tried to the bench in April 2007. During the hearing, Father orally requested that he be given primary custody of D.M.D. At the conclusion of the hearing, the trial judge orally ruled that Mother would have the right to establish the child's residence if she resided in Kaufman County or a contiguous county, but otherwise Father would have the right to establish the child's residence and Mother would have "standard access." The judge signed a written order to this effect on August 1, 2007. Mother timely requested findings of fact and conclusions of law. When none were forthcoming, she filed a notice of past due findings of fact and conclusions of law. Mother also timely filed her notice of appeal from the August 1 order. See Tex. Fam. Code Ann. § 109.002(b) (Vernon 2002) (authorizing appeals from final orders in suits under title 5 affecting the parent-child relationship).
II. Findings of Fact
The trial judge signed findings of fact and conclusions of law on February 25, 2008-over six months after he signed the order being appealed and about a week after Mother filed her appellate brief. Mother complains of these belated findings in her reply brief and suggests that we may disregard them because of their untimeliness and because of the harm to her presentation of her case. We may disregard findings and conclusions that are signed belatedly and harm a litigant's ability to present her appeal. See, e.g., United Heritage Corp. v. Black Sea Invs., Ltd., No. 10-03-00139-CV, 2005 WL 375443, at *5 (Tex.App.-Waco Feb. 16, 2005, no pet.) (mem. op.); Stefek v. Helvey, 601 S.W.2d 168, 170-71 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). We conclude that the belated findings in this case have harmed Mother's ability to present her appeal because she had no opportunity to challenge them in her principal brief. Accordingly, we will disregard them. In the absence of findings, we imply all necessary findings in support of the trial court's order. In re B.N.B., 246 S.W.3d 403, 406 (Tex.App.-Dallas 2008, no pet.). We then review the implied findings under the standards otherwise applicable. Id.; United Heritage Corp., 2005 WL 375443, at *5-6.
III. Standard of Review
We review a trial court's order regarding child custody, control, possession, and visitation for abuse of discretion. Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex.App.-Dallas 1999, no pet.). A trial court abuses its discretion if its decision is arbitrary or unreasonable. In re A.R., 236 S.W.3d 460, 479-80 (Tex.App.-Dallas 2007, no pet.). Under the abuse of discretion standard, factual and legal insufficiency of the evidence are not independent grounds for reversal, but they are relevant factors in our assessment of whether the trial court abused its discretion. Peck v. Peck, 172 S.W.3d 26, 33 (Tex.App.-Dallas 2005, pet. denied). If some substantive and probative evidence supports the order, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.).
IV. Analysis
In her first two issues, Mother challenges the residency restriction found in the order appointing Mother and Father as joint managing conservators of D.M.D. In her first issue, she contends that the trial court abused its discretion because it was in D.M.D.'s best interest to relocate to Austin with Mother when she moved in August 2006. In her second issue, Mother contends that the trial court abused its discretion because it was in D.M.D.'s best interest to remain in Austin when the hearing was held in April 2007. In her third issue, Mother argues that the residency restriction violates several of her constitutional rights.
The order provides as follows:
[Mother] shall have . . . the exclusive right to designate the primary residence of the child; contingent upon her residing in Kaufman County or a county contiguous to Kaufman at the beginning of the fall 2007 school year; otherwise [Father] will have the exclusive right to designate the primary residence of the child and the mother will have standard access.
From this order, we may infer that the trial judge found that it would be in D.M.D.'s best interest to live with Mother if she resided within the restricted area and that it would be in D.M.D.'s best interest to live with Father in Kaufman County if Mother continued to live in Austin. The question presented is whether there was any substantial and probative evidence to support these implied findings.
A. Applicable law
When a trial court appoints joint managing conservators, the court must designate the conservator who has the exclusive right to determine the primary residence of the child. Tex. Fam. Code Ann. § 153.134(b)(1). The court must either establish a geographic area within which the conservator shall maintain the child's primary residence or specify that there are no geographic restrictions. Id. § 153.134(b)(1)(A), (B).
A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child. Tex. Fam. Code Ann. § 156.001. Among other grounds, the court may modify an order if (1) modification would be in the best interest of the child and (2) the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the date or the rendition of the order. Id. § 156.101(1)(A). The best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship, possession, and access. Id. § 153.002.
Many factors can bear on the determination of a child's best interest. In the context of residency restrictions and relocation, the supreme court has instructed us to consider the public policies outlined in section 153.001(a). Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Section 153.001 states that the public policy of Texas is to:
(1) assure that children will have frequent and continuing contact with parents who have shown an ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Tex. Fam. Code Ann. § 153.001(a)(1)-(3). The Lenz court also noted that a wide array of other factors can be relevant to the determination of a child's best interest after parental relocation. These include the reasons for and against the move; the education, health, and leisure opportunities afforded by the move; the accommodation of the child's special needs or talents; the effect on extended family relationships; the effect on visitation and communication with the noncustodial parent; the noncustodial parent's ability to relocate; and the child's age. Lenz, 79 S.W.3d at 15-16. We may also consider the general factors relevant to the best interest of a child, such as (1) the child's desires; (2) the child's current and future physical and emotional needs; (3) any physical or emotional danger to the child in the present or future; (4) the parental abilities of the individuals involved; (5) the programs available to those individuals to promote the child's best interest; (6) the plans for the child by these individuals; (7) the stability of the home; (8) acts or omissions by a parent tending to show that 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).
We further agree with the Austin Court of Appeals that a child's best interest "cannot be determined in a vacuum." Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex.App.-Austin 2002, no pet.). "Although consideration of the visitation rights of the noncustodial parent is important, we must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child's best interest." Id. "Because the custodial parent provides the child with a basic quality of life, a child's best interest is closely intertwined with the well-being of the custodial parent." Lenz, 79 S.W.3d at 18.
B. The evidence
The record is almost devoid of evidence concerning what D.M.D.'s life would be like if Mother abided by the residency restriction in order to maintain her right to designate D.M.D.'s primary residence. Although Stepfather and Mother still owned a house in Dallas, they were renting it out on a month-to-month basis at the time of the hearing. Mother testified that she could not move back into that house if she needed to, although she agreed that she would obey a court order if the court ordered her to do so. The evidence showed that the family moved to Austin because Stepfather, an attorney, obtained a new job there with a higher base salary and greater bonus potential than his job in Dallas. Stepfather testified that he had previously looked for another job in Dallas unsuccessfully, and there was no evidence he could get a job in Dallas comparable to his job in Austin. Indeed, there was no evidence that Stepfather would move back to Dallas with Mother and D.M.D. There was no evidence concerning the school that D.M.D. would attend if Mother moved back to Dallas or elsewhere within the restricted area. There was evidence that Mother would not be able to continue working towards her college degree in Dallas unless she went to classes in the evening, which would mean that she would not be able to spend that time with D.M.D.
The record is likewise very sketchy as to what D.M.D.'s life would be like if Mother refused to move within the restricted area and Father became D.M.D.'s primary custodial parent. There was evidence that many members of D.M.D.'s extended family lived reasonably near Father. If D.M.D. lived with Father, she would attend an elementary school that is rated "state recognized." Father would not take D.M.D. to school or pick her up; he would take her to a caretaker, who would take her to school and pick her up from school. Then he would pick her up from the caretaker after work. The testimony also indicated that D.M.D. and Father have a close and very good relationship.
In contrast to the two above-described scenarios, a great deal of evidence tended to show that it was in D.M.D.'s best interest to reside in Austin with Mother and Stepfather. First, the neutral third party who conducted a social study in this case recommended that Mother continue to provide D.M.D.'s primary residence even after moving to Austin. She noted that after the move to Austin, Mother was able to be a "stay-at-home mom" and that this was a positive thing for D.M.D. She emphasized that day care itself is not necessarily a bad thing if it provides the child with a safe, nurturing environment, but in general it is better for a child to be with her parent than in day care if the parent is loving and nurturing.
Second, Mother and Stepfather testified to many facts tending to show that allowing Mother to move to Austin with D.M.D. was in her best interest. Before the move, D.M.D. had difficulty in school and repeated the first grade. Mother testified that in 2006-2007, D.M.D. was attending an exemplary-rated school in Austin and was making straight A's. D.M.D.'s report card for the first three reporting periods was admitted into evidence. Father testified that D.M.D.'s grades declined over the course of the school year; the report card actually shows that D.M.D.'s grades went up in one subject, stayed the same in another subject, and declined slightly but remained within the "A" range in the other three graded subjects. D.M.D. made friends in Austin, participated in Girl Scouts with Mother there, and played sports such as flag football there. Mother was taking college classes in Austin towards finishing her degree, and her schedule allowed her to spend every morning, afternoon, and evening with D.M.D.
The record further shows that the reason for the move was to permit Stepfather to take a better-paying job, which in turn allowed Mother to stop working and stay at home with D.M.D. when she was not in school. Stepfather's Dallas job paid a base salary of $160,000, with the possibility of a bonus of up to $10,000. His Austin job paid a base salary of $230,000, with the possibility of a bonus of $50,000 or $60,000. At the time of trial, Stepfather and Mother owned a large house in Austin and did not plan to move again. Mother testified that D.M.D. loved living in Austin. Stepfather testified that he had no success looking for another job in Dallas and opined that it would be easier for Father, a sales representative for Ben E. Keith, to find a comparable job in Austin than for Stepfather to find a Dallas job comparable to his new position in Austin. He also testified that he and Mother were committed to maintaining D.M.D.'s relationship with Father and would pay for all of her flights to and from Dallas.
D.M.D.'s great-grandfather testified that Mother is a very good parent and that he thought it was in D.M.D.'s best interest to live with Mother. He testified that he saw D.M.D. about once a month both before and after the move, even though he lives at Cedar Creek Lake.
According to google.com, Cedar Creek Lake is about 65 miles southeast of Dallas.
Most of Father's testimony was directed to whether Mother was a good parent or not, and because the trial court gave preference to Mother as to designating D.M.D.'s primary residence, we can infer that the trial court did not particularly credit his testimony attacking Mother's general fitness as a parent. Specifically with regard to the residency restriction, Father complained that the move to Austin meant that he could not go to D.M.D.'s school or her activities and that his overall time with D.M.D. was cut short. He also adduced evidence that D.M.D. has almost no extended family in the Austin area and a great deal of extended family in the Dallas area.
Finally, we note that Mother testified that D.M.D.'s pulmonologist was "fairly certain" that D.M.D. had cystic fibrosis based on the results of certain medical tests. At the end of the hearing, the trial judge remarked on the record, "When I heard testimony about this child's Cystic fibrosis, that caused me to have serious concerns that this child should be closer to everybody; including her father." After the hearing, but before the judge signed the order, Mother filed a motion to reconsider or for a new trial. She attached an affidavit to the motion in which she testified that D.M.D. had taken a blood/genetic test for cystic fibrosis and that the test results, which came back after the hearing, established conclusively that D.M.D. does not have cystic fibrosis.
C. Application of the law to the facts
We conclude that the trial court abused its discretion by imposing the residency restriction on Mother's exclusive right to designate D.M.D.'s primary residence. The record contains substantial evidence that, at the time of the hearing, D.M.D. was flourishing in Austin while living with Mother and Stepfather. The evidence showed that the move improved D.M.D.'s life in many respects. Stepfather was able to earn more money, allowing Mother both to be at home whenever D.M.D. was home and to take college classes towards her own degree while D.M.D. was at school. D.M.D. excelled academically in an exemplary-rated school, made friends, and participated in social activities such as Girl Scouts and flag football.
By contrast, as discussed above, the record contains very little information as to what D.M.D.'s situation would be under the residency restriction. Assuming Mother complied with the restriction, there was no evidence that Stepfather would be able to find a comparable job within the restricted area or that he was even willing to move to the restricted area. There was no evidence as to what living and schooling arrangements Mother would be able to make within the restricted area. There was similarly scant evidence regarding the quality of D.M.D.'s situation if Mother refused to move within the restricted area.
Essentially the only evidence in the record tending to support the residency restriction was evidence that D.M.D. would be farther away from Father and her extended family if she lived in Austin. But this evidence was not substantial enough to show that the residency restriction was in D.M.D.'s best interest. Although the evidence showed that D.M.D.'s extended family was located in the Dallas area, there was no evidence that she actually saw her extended family any less after she moved to Austin than she did before. Father complained that he got to spend less time with D.M.D. after the move, but the evidence shows that a removal of the residency restriction would not dramatically affect the amount of time he would possess D.M.D. Despite the residency restriction, the trial court's order spells out Father's possession rights under two alternative circumstances-when the parents live less than 100 miles apart and when they live more than 100 miles apart. In the former circumstance, and setting aside holidays, Father is entitled to possession of D.M.D. for 30 days during the summer, spring break in alternate years, and from Thursday to Sunday on the second, fourth, and fifth weekends of the month during the school year. In the latter circumstance, and again setting aside holidays, Father is entitled to possession of D.M.D. for 42 days during the summer, spring break every year, and from Friday to Sunday on the second, fourth, and fifth weekends of the month during the school year. Although the latter schedule does mean that Father would take possession of D.M.D. on Friday nights instead of Thursday nights during the school year, we cannot ignore the fact that D.M.D. will ordinarily spend Friday in school. And although Father testified that the move to Austin will prevent him from attending D.M.D.'s school activities, he conceded that his participation in D.M.D.'s school activities while she lived in Dallas was limited to attending one lunch and one school play.
Considering the record as a whole, we conclude that the evidence supporting the residency restriction and the contingent order granting Father primary custodial rights is weak or nonexistent while the contrary evidence is quite strong. There is no evidence that the residency restriction is necessary to accomplish any of the public policies set forth in section 153.001 of the family code. There is no evidence that Mother and Stepfather decided to move for the purpose of frustrating Father's relationship with D.M.D., and there is ample evidence that they decided to move for a number of reasons that they reasonably perceived to be in D.M.D.'s best interest. The improvement in Mother and Stepfather's financial position has enabled Mother both to be a stay-at-home mother and to continue her college education. The only record evidence indicates that D.M.D. enjoyed excellent education and leisure opportunities in Austin. Although the trial judge declined to interview D.M.D. to ascertain her preference, there is some record evidence that she "loved" living in Austin. On the other hand, there is no evidence that the move negatively affected D.M.D.'s relationships with her extended family. Although the move would change Father's possession rights, the amount of time he would enjoy possession of D.M.D. would not be greatly diminished. Importantly, there is no substantial evidence that the change in Father's possession rights would have any adverse effect on D.M.D. herself. See In re A.R., 236 S.W.3d 460, 480 (Tex.App.-Dallas 2007, no pet.) ("The focus is on the best interest of the child, not the best interest of the parent.").
The trial evidence that D.M.D. had a preliminary diagnosis of cystic fibrosis did not substantially support the residency restriction. Mother presented some evidence that there is a cystic fibrosis center for children in Austin. Although Mother testified that the disease was a "fatal illness," there was no evidence that the disease would have presented a danger of sudden death so as to prevent Father from being present during any serious episode of illness.
In his appellate brief, Father relies heavily on the proposition that Mother violated a residency restriction in the February 2006 temporary order by moving to Austin. Mother testified at the hearing that she did not think she had violated the order; although the order recited that D.M.D.'s residence "is" in Dallas at a specific address on Druid Lane, Mother did not interpret the order as requiring Mother or D.M.D. to stay there. In any event, the trial court did not let this alleged violation of a court order prevent it from giving preference to Mother as the primary custodian of D.M.D. Also, Father cites no authority that this kind of violation of a court order is substantial or probative evidence of the best interest of a child with respect to a residency restriction. We conclude that the violation, if any, has no bearing on the question of whether the residency restriction was in D.M.D.'s best interest.
The case of In re A.C.S., 157 S.W.3d 9 (Tex.App.-Waco 2004, no pet.), is comparable to this one in some ways. In that case, the children's mother, who was the custodial parent, moved from Texas to South Carolina with the children, while the father remained in Texas. Id. at 13. At the father's request, the trial court imposed a residency restriction of a certain area within Texas. Id. The court of appeals, however, held that the restriction was an abuse of discretion. The evidence showed that requiring the mother to return to Texas would cause her to lose a good-paying job, a rent-free home, and the relationships that she had established with friends, co-workers, and her own extended family in South Carolina. Id. at 25. There was no clear evidence that the mother could easily find similar housing or employment in Texas. Id. Accordingly, requiring the move would, at a minimum, "place the children in a position of uncertainty for an unknown period of time." Id. The appellate court acknowledged that the residency restriction could improve the children's relationship with their father and his extended family. Id. But, considering the evidence as a whole, the court concluded that "those improvements would come at the expense of the positive situation which [the mother] and the children have in South Carolina." Id. The court concluded that the trial court abused its discretion by finding that requiring the children to return to Texas was in their best interest. Id. at 25; accord Fox v. Fox, No. 03-04-00749-CV, 2006 WL 66473 (Tex.App.-Austin Jan. 13, 2006, no pet.) (mem. op.) (reversing residency restriction to the extent it lasted beyond the next school year). In the instant case, although the relocation to Austin did not move D.M.D. closer to any extended family, it did improve Mother's financial situation and her ability to spend time with D.M.D. as opposed to relying on day care. The evidence established that D.M.D. flourished in Austin, and it did not tend to show any harm to D.M.D.'s relationships with her extended family. Nor did it show that D.M.D.'s relationship with Father was harmed by the move. Additionally, we note that a move from Dallas to Austin involves distances far less dramatic than a move from Texas to South Carolina-much less the move to Germany that the supreme court upheld in Lenz, 79 S.W.3d at 17-21.
D. Conclusion
There was no substantive and probative evidence presented that the trial court's Order in Suit to Modify Parent-Child Relationship would advance the best interest of the child. There was substantial evidence presented that the best interest of the child would be advanced by permitting the child to continue to reside in Austin with Mother and Stepfather. Accordingly, we sustain Mother's second issue on appeal and conclude that, based on the evidence concerning all relevant circumstances at the time of the hearing in April 2007, the trial court abused its discretion by imposing the residency restriction and making the contingent order giving Father the right to designate D.M.D.'s residence. Because of our disposition of this issue, we need not consider Mother's first issue, in which she argued the trial court abused its discretion considering the facts and circumstances that existed in August 2006. We also need not consider her third issue, whether the trial court's order violated Mother's constitutional rights. Neither issue could result in our granting Mother any additional relief. See Tex. R. App. P. 47.1.
V. Disposition
We reverse the trial court's Order in Suit to Modify Parent-Child Relationship and remand this cause to the trial court for further proceedings consistent with this opinion.