SUE WALKER

From the 322nd District Court

of Tarrant County (322-469000-09)

Opinion by Justice Walker

JUDGMENT

This court has considered the record on appeal in this case and holds that there was no error in the trial court's judgment. It is ordered that the judgment of the trial court is affirmed.

It is further ordered that appellant Robin Christine Ruiz shall pay all of the costs of this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS

By ____________________

Justice Sue Walker

NO. 02-12-00136-CV

ROBIN CHRISTINE RUIZ APPELLANT V. DAVID SAMUEL RUIZ AND THE OFFICE OF THE ATTORNEY GENERAL APPELLEES

FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Robin Christine Ruiz appeals the trial court's possession order set forth in the final decree of divorce. In two issues, Robin argues that without a formal not-in-the-best-interest-of-the child finding, she is entitled to extended possession as a matter of law pursuant to Texas Family Code section 153.317 and that if such a finding can be implied, then the evidence is insufficient to support an implied finding. We will affirm.

II. PROCEDURAL BACKGROUND

Robin filed for divorce from Appellee David Samuel Ruiz and sought sole managing conservatorship of the couple's daughter S.E.R. or, in the alternative, joint managing conservatorship with Robin's having the right to establish S.E.R.'s primary residence. The associate judge made temporary orders, appointing Robin and David joint managing conservators, giving David the right to establish S.E.R.'s primary residence, ordering Robin to pay child support, and giving Robin extended possession. These orders continued until the final orders were signed almost two years later.

The trial court held a final hearing in the underlying high-conflict divorce case on November 28, 2011. The trial court heard testimony regarding the parties' inability to communicate civilly with one another, allegations of domestic abuse, and accusations that Robin had withheld S.E.R.'s homework and medical information, as well as some of S.E.R.'s possessions, from David. The crux of the issue on appeal—possession, however, turned on testimony regarding the physical distance between the parties.

Robin testified that she was living in Dallas with her boyfriend and his two children and that she had been living there for a year to fourteen months prior to the trial. Robin agreed that her residence was approximately forty-two miles from her daughter's school in Keller. Robin testified that she was willing to move to Keller ISD for her daughter to finish school there, but she had not done so at the time of the final trial. She planned to marry her boyfriend after the divorce was final and to continue to live in Dallas.

David testified that it was in S.E.R.'s best interest for him to have primary possession and for Robin to have standard visitation. David believed that standard visitation with Robin was in S.E.R.'s best interest because

it's about an hour and a half drive for her to get to school in the morning. [S.E.R.] is exhausted on Friday morning. She's black eyes from, you know, being tired, getting up too early. And she [Robin] doesn't return anything. She doesn't study her schoolwork with her. I don't get the schoolwork back. I've put in multiple requests to please post the schoolwork there so I can keep up-to-date. She says call the teacher. That's what I do. But, yet, I put all schoolwork online.

Danny Wright, a family court services caseworker who performed a social study on the family, also testified at the final trial. He recommended that David be granted the exclusive right to determine the primary residence of the child and to establish the school district in which the child lived and attended. Wright's report stated that school "is one of the most stable aspects of this child's life." Wright testified that he considered both standard and extended standard visitation with Robin and did not make a recommendation as to school placement with Robin because of the fact that she lives forty-two miles from the school that the child attends. Wright said that the forty-two miles would "be a difficult journey" for a person with extended standard visitation. He recommended that the parents seek to live closer to each other to enable them to participate in S.E.R.'s scholastic and extracurricular activities.

The day following the final trial, the trial court issued a letter ruling, providing for Robin "to have the Standard Possession Order, with election as to expanded possession on weekends, except the child is to be returned to the father's home by 6:00 p.m. on Sundays . . . after the weekend possession during the school year. This does not include expanded during the week days of the school year."

Two weeks later, Robin filed a "Motion For Reconsideration And Clarification Of Petitioner's Possession And Access Schedule" in which she requested that the trial court "reconsider Movant's possession and access schedule and order that the Movant shall have an expanded standard possession schedule all year." At the hearing on Robin's motion, the trial court stated that it intended for Robin to have the standard possession order with election as to expanded possession on her weekends; she could pick up S.E.R. after school on Fridays, but she must return S.E.R. to David's home by 6:00 p.m. on Sundays. The trial court also stated on the record that Robin was not allowed during the school year to begin her weekend on Thursday after school; she would have S.E.R. from 6:00 p.m. to 8:00 p.m. on Thursdays but not overnight. The trial court explained on the record that Robin lived far from where S.E.R. attends school and that was part of the trial court's consideration in not giving expanded "on the back end." The trial court signed the "Final Decree of Divorce" after the hearing on Robin's motion for reconsideration.

Robin thereafter filed a motion for new trial, arguing that her motion for reconsideration fulfilled the requirements for requesting extended possession set forth in Texas Family Code section 153.317(b) and that the trial court was therefore required to grant alternative beginning and ending possession times because there was no evidence that such times were not in the best interest of the child. See Tex. Fam. Code Ann. § 153.317(b) (West Supp. 2012). The motion for new trial was overruled by operation of law, and this appeal followed.

III. STANDARD OF REVIEW

We review the trial court's decisions on custody, control, possession, and visitation matters for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Newell v. Newell, 349 S.W.3d 717, 720 (Tex. App.—Fort Worth 2011, no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). Legal and factual sufficiency are not independent grounds of error in this context, but they are relevant factors in deciding whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh'g). The best interest of the child shall always be the primary consideration in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (West 2008); see Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing nonexhaustive factors that court may use to determine best interest).

IV. TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING EXTENDED

POSSESSION BECAUSE IT FOUND, AND SUFFICIENT EVIDENCE SUPPORTED FINDING,

THAT GIVING ROBIN EXTENDED POSSESSION WAS NOT IN CHILD'S BEST INTEREST

In her first issue, Robin argues that she is entitled to extended possession as a matter of law pursuant to Texas Family Code section 153.317 unless the trial court makes a specific finding that one or more of the alternative beginning and ending possession times for the described periods of possession is not in the best interest of the child. Robin's specific argument is that the trial court was required to affirmatively make a "formal finding" that extended possession was not in the child's best interest before it could deny extended possession to Robin.

Texas Family Code section 153.317 states in pertinent part,

(a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:
(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:
(A) beginning at the time the child's school is regularly dismissed; or
(B) ending at the time the child's school resumes after the weekend;
(2) for Thursday periods of possession under Section 153.312(a)(2):
(A) beginning at the time the child's school is regularly dismissed; or
(B) ending at the time the child's school resumes on Friday[.]
. . . .
(b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:
(1) in a written document filed with the court; or
(2) through an oral statement made in open court on the record.

As an initial issue, David argues that Robin did not timely elect extended possession under the statute because she did not clearly elect extended possession until her motion for new trial. The record before us does not contain a transcript from the hearings held on the temporary orders to show whether Robin orally requested extended possession. We are, however, entitled to presume—because this appeal does not involve the rules applicable to partial reporter's records—that the evidence presented in the record is legally and factually sufficient to support the temporary orders. See Sareen v. Sareen, 350 S.W.3d 314, 317 (Tex. App.—San Antonio 2011, no pet.) (holding that missing portions of the record supported trial court's findings). We therefore presume that Robin timely elected extended possession. See id.

Here, the trial court had before it the social study and all of the testimony from the bench trial. The trial court was thus in a position to see the parties' behaviors, to hear their testimony, and to review the caseworker's recommendation before the trial court signed the final order giving Robin portions of the extended possession under section 153.317(a) but not allowing the ending times under (1)(B) and (2)(B). In reaching this conclusion, the trial court made an implicit finding that allowing the child to spend Thursday night and Sunday night with Robin was not in the child's best interest, and the trial court confirmed its conclusion and explained its reasoning on the record at the hearing on Robin's motion to reconsider. In making her argument on appeal, Robin points us only to the statute for her conclusion that the trial court was required to make a "formal finding" that extended possession was not in the child's best interest. But nothing in section 153.317 requires the trial court to make a formal or written finding that extended possession is not in the child's best interest before denying extended possession. See Tex. Fam. Code Ann. § 153.317(a). As set forth above, the plain language of the statute requires the trial court to alter the standard possession order to provide for one or more of the following alternative beginning or ending possession times, "unless the court finds that the election is not in the best interest of the child." Id. The trial court was therefore under no duty to make a formal, written not-in-the-best-interest-of-the-child finding before denying full extended possession to Robin, nor was the trial court required by the statute to grant Robin all of the alternative beginning and ending times listed in the statute. Moreover, the trial court's explanation at the hearing on the motion for reconsideration demonstrated that it had made an implicit not-in-the-best-interest-of-the-child finding before denying Robin full extended possession.

Because no requirement exists that the trial court must make a formal, written not-in-the-best-interest-of-the-child finding before denying full extended possession, we hold that the trial court did not abuse its discretion by denying Robin full extended possession after implicitly finding that it was not in the child's best interest for Robin to have extended possession. See id.; see also Celestine v. Dep't of Family & Protective Servs., 321 S.W.3d 222, 234 (Tex. App.— Houston [1st Dist.] 2010, no pet.) (holding that trial court made an implicit finding that waiver of section 162.009's six-month residency requirement was not in the children's best interest); In re C.R.T., 61 S.W.3d 62, 67 (Tex. App.—Amarillo 2001, pet. denied) (holding that evidence warranted trial court's implicit finding that presumption was rebutted such that conservatorship with parent would not be in children's best interest); see also In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *5 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.) (holding that trial court did not abuse its discretion by implicitly finding that it was not in C.B.'s best interest to relocate to New Mexico with father; substantive and probative evidence demonstrated it was in C.B.'s best interest to remain in mother's custody because mother maintained a safe and healthy home that was free of sexual abuse). We overrule Robin's first issue.

In her second issue, Robin argues that if the not-in-the-best-interest-of-the-child finding can be implied, then the evidence presented at the final trial is insufficient to support such a finding. We disagree.

Here, the trial court's temporary orders allowing Robin extended visitation had been in effect for almost two years at the time of the final termination trial. During the time that the temporary orders were in effect, S.E.R. attended school in Keller, and Robin lived in Dallas. The testimony that the trial court heard revealed that allowing Robin to have S.E.R. overnight on Thursdays and allowing S.E.R. to stay until Monday on Robin's weekends on the extended visitation had taken a toll on S.E.R.; she had shown up at school with dark circles under her eyes on Friday and Monday mornings after making the forty-two-mile trip from Robin's home in Dallas to her school in Keller. Robin testified that she planned to marry her boyfriend and continue to live in Dallas, thus continuing to put distance between her and her child's school. The caseworker was concerned about the forty-two-mile distance and described it as "a difficult journey." David testified that Robin did not send back some items of S.E.R.'s clothing, as well as S.E.R.'s lunch box, and that Robin often shrunk or ruined S.E.R.'s clothing and shoes. David also testified that Robin did not help S.E.R. with her schoolwork and that Robin did not post schoolwork online so that David could keep current. After hearing the evidence at the final trial, the trial court made its ruling, which it then reiterated and explained at the hearing on Robin's motion for reconsideration: "The mother lives far apart from the father and where the child goes to school. That was part of my consideration in not standard on the back end. So that's going to stay."

The evidence therefore demonstrates that the distance Robin lives from S.E.R.'s school interferes with S.E.R.'s ability to be well rested for school because she has to get up early to make the forty-two-mile trip in rush-hour traffic. Overnight stays with Robin during the school week also resulted in problems with S.E.R.'s studying and with returning S.E.R.'s belongings. The possession order crafted by the trial court allows Robin to see S.E.R. during the week on Thursdays and to pick her up from school on Fridays during Robin's weekends, while the possession order eliminates the early morning commute for S.E.R. by having her returned to David in Keller on nights before a school day. Having considered the record before us and the deference to be given to the trial court's resolution of underlying facts and credibility determinations that may have affected its decision, we hold that the trial court acted within its discretion by finding that an extended possession order "on the back end" was not in the best interest of the child. See Burney v. Burney, 225 S.W.3d 208, 212 (Tex. App.—El Paso 2006, no pet.) (holding that trial court did not abuse its discretion by denying father's request for expanded possession); Popek v. Popek, No. 14-10-00201-CV, 2011 WL 2566185, at *9 (Tex. App.—Houston [14th Dist.] June 30, 2011, no pet.) (mem. op.) (concluding that trial court acted within its discretion by finding that expanded possession was not in child's best interest); see also Brendel v. Brendel, No. 04-08-00883-CV, 2009 WL 3789604, at *5 (Tex. App.— San Antonio Nov. 11, 2009, no pet.) (mem. op.) (holding that based on evidence presented, trial court could have reasonably concluded that it was not in children's best interest for father to be awarded the additional possession times that he proposed). We overrule Robin's second issue.

V. CONCLUSION

Having overruled Robin's two issues, we affirm the trial court's judgment.

SUE WALKER

JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.