in the Interest of D.L.N., E.L.N., and J.L.N., Children ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_______________________________
06-19-00090-CV
_______________________________
IN THE INTEREST OF D.L.N., E.L.N., AND J.L.N., CHILDREN
On Appeal from the 76th District Court
Titus County, Texas
Trial Court No. 39,162
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Father appeals the trial court’s judgment in this suit modifying the relationship with his
children, D.L.N., E.L.N., and J.L.N., and argues that the trial court abused its discretion by
(1) awarding Mother child support in excess of statutory guidelines, (2) awarding Mother the
exclusive right to establish the children’s residence without geographical restriction, and
(3) awarding Mother other exclusive rights, including the rights to consent to the children’s health
care needs, make decisions about their education, and maintain their passports.
We conclude that the record does not support Father’s first point of error because it does
not show that the trial court exceeded statutory guidelines when awarding child support. We also
conclude that the trial court did not abuse its discretion in granting Mother the exclusive rights of
which Father complains. As a result, we affirm the trial court’s judgment.
I. Standard of Review
“We review the trial court’s decision to modify conservatorship under an abuse of
discretion standard.” In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.—Texarkana 2013, no pet.)
(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). “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.” Id. (quoting In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex.
App.—Texarkana 2004, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985))). “Under this standard, legal and factual sufficiency are not independent
grounds for asserting error, but are relevant factors in determining whether the trial court abused
its discretion.” Id. “In determining whether the trial court abused its discretion, we consider
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whether the trial court had sufficient evidence upon which to exercise its discretion and, if so,
whether it erred in the exercise of that discretion.” Id.
“We consider only the evidence most favorable to the trial court’s ruling and will uphold
its judgment on any legal theory supported by the evidence.” Id. (citing Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam)). “Where, as here, no findings of fact and conclusions
of law are filed, it is ‘implied that the trial court made all the findings necessary to support its
judgment.’” Id. (quoting Worford, 801 S.W.2d at 109). “We are mindful that ‘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.” Id.
(quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)).
“We, therefore, defer to the trial court’s judgment in matters involving factual resolutions and any
credibility determinations that may have affected those resolutions.” Id.
II. Factual Background
Mother filed a petition to modify the parent-child relationship because the trial court’s prior
split-custody arrangement had allegedly become unworkable. At trial, Mother explained that she
wanted the exclusive right to designate the children’s primary residence, without geographical
restriction, because she had been offered a store manager position at a Burke’s Outlet store in
Monroe, Louisiana. The trial court also heard testimony about the nature of the relationship
between Mother and Father, which ultimately led to the trial court’s decision to grant Mother
certain exclusive rights.
In October 2015, at time when Father was unemployed, Mother accepted a position at the
Burke’s Outlet store in Monroe, and informed Father that he was welcome to move with her and
3
the children who, at the time of trial, were ten, seven, and four years old. Father, Mother, and the
children moved from Mount Pleasant, Texas, to Monroe, where they lived for several months.
Mother testified that Father was unemployed the entire time that they were living in Monroe and
that she supported the family, enrolled the children in school, and paid Father to watch his own
children.
Mother said that she was never married to Father and refused his many proposals, and she
characterized her relationship with him as abusive. Mother testified that Father held her down and
instructed D.L.N. to hit her after she disciplined the child by taking his videogame. According to
Mother, D.L.N. was not violent before this incident but engaged in fights at school after it. Mother
also testified that, on a day when Father was late to pick up the children so she could go to work,
Father pulled into the driveway as Mother drove off, he took D.L.N. and E.L.N. but left J.L.N. at
home, and then caused Mother’s arrest by calling the police to report that Mother had left the
child.1 After this incident, Mother testified that Father took Mother’s green card and moved back
to Mount Pleasant with the children without telling her where they lived. Father told Mother that
he would take the children to Italy and threatened Mother with deportation if she did not consent.
According to Mother, for seven months, Father forced her to sleep with him in a hotel room she
had to pay for before she could see the children.
After some time, Mother transferred to the Texarkana Burke’s store and moved there to be
closer to the children and to exercise the alternating-week possession schedule. After a visit with
Father, Mother discovered that E.L.N. had a hurt arm and told Father she was going to take the
1
As a result of this incident, Mother pled guilty to and was convicted of child desertion.
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child to the emergency room. Father told Mother not to take E.L.N. to the hospital and later called
the police to report Mother for not taking the child, but Mother was already at the hospital when
the police located her, and she was told that the child had dislocated his shoulder while in Father’s
care. Mother testified that Father taught the children to tell lies about a fake girlfriend to make her
jealous.
Mother also described problems that she experienced with Father when attempting to care
for the children’s health and educational needs. Mother said that D.L.N. takes daily medication
for seizures and that Father had refused to pick up his medication and failed to ensure that the child
had healthcare even when ordered by the trial court to do so. Mother also introduced evidence
showing that Father would not take J.L.N., who had eczema, to see a specialist because he wanted
Mother to reschedule the appointment so she could take the child. She also testified that she took
the children to dental appointments only to find that they were cancelled by Father. Mother also
said she had located a daycare center that could provide for J.L.N.’s speech therapy and other
developmental needs, but that Father refused to provide the child’s social security card or his own
personal information needed to complete the enrollment because he did not want J.L.N. to start
day care. Mother said that, until trial, Father refused to tell her where he worked.
Mother testified that she wished to have the exclusive right to designate the children’s
primary residence because the store manager position in Monroe was waiting for her and because
her longtime boyfriend of three years, Carlton, a corporate trainer with whom she had recently had
another child, also lived in Monroe. Mother testified that the children enjoyed being in Monroe,
attended a church there, and would have access to good schools and healthcare. At the time of
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trial, Mother had to drive D.L.N. two hours away to see a neurologist, but she found a neurologist
for him in Monroe.
Carlton testified about his relationship with the children and their relationship to the family
he had in Monroe. Carlton testified that he and his family were available to help the children and
that he had watched the children several times when Father or Father’s family was unable to do so
during Father’s time of possession.2 Carlton testified that Mother drove fifty minutes every day
to Mount Pleasant while working and juggling day care, but that Father would often use deceptive
ploys to sabotage provisions she would make for day care. Carlton supported Mother’s petition
for exclusive rights to designate the children’s residence without geographical limitation.
Father testified that he moved back to Texas because Mother was abusive and had left
J.L.N. at home alone. He admitted that he “ha[d] griped at [Mother] about setting up doctors’
appointments on [his] week, because [he was] the one . . . always taking them [to] the doctors’
appointments.” He also said that he did not want to provide Mother with information needed to
enroll J.L.N. in school because he did not want her to attend since she could not speak and would
be unable to report any problems at school.
Father testified that he worked in the fracking industry as a sand coordinator for
Halliburton, that his job moved with each assignment, and that he sometimes had to spend several
days out of town before returning home, even on weeks when the children were supposed to be in
his possession. Father testified that his mother or grandmother would watch the children when he
was away from town for work.
2
Carlton testified that Father had a habit of calling the police and had even called the police on him while he was
watching the children.
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Father was served with a subpoena requiring him to bring financial records and
documentation of any income he had received for the last twelve months to trial, but the record
showed that Father did not comply, and he brought only a few paycheck stubs with him. Father
testified that he had dental insurance and had paid for medical insurance for the children through
his employment, as reflected by the deductions on his paycheck. While Father previously agreed
to provide for half of tutoring classes for one of the children, and was later ordered to do so, Father
admitted that he failed to pay for the last month of tutoring. Father loved his children and believed
it was in the children’s best interests to remain with him.
After hearing this evidence, the trial court found that it was in the children’s best interests
for both parents to remain joint managing conservators with Mother having the “exclusive right to
designate the primary residence of the children without regard to geographic location.” The trial
court also awarded Mother other exclusive rights including (1) the right to consent to medical,
dental, and surgical treatment involving invasive procedures; (2) the right to consent to psychiatric
and psychological treatment; (3) the right to represent the children in legal action; (4) the right to
consent to marriage and enlistment in the armed forces; (5) the right to make decisions about the
children’s education; (6) the right to act as the children’s agent; (7) the right to services and
earnings of the children, except as provided by Section 264.0111 of the Texas Family Code; and
(8) the right to apply for and maintain the children’s passports. The trial court also ordered Father
to pay $1,214.22 per month in child support and half of “[e]ducational and [m]iscellaneous
[e]xpenses” that were to be “considered child support and enforceable as such.”
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III. The Record Does Not Support Father’s First Point of Error
Father argues that the trial court abused its discretion by ordering him to pay child support
in an amount greater than the statutory guidelines. While he agrees that the monthly amount of
$1,214.22 in child support “was . . . in accordance with the guidelines,” Father points to the order
requiring him to pay educational and miscellaneous expenses3 and argues that this shows that the
trial court exceeded the statutory guidelines.4 We disagree.
“The trial court is given broad discretion in setting child support payments and in
modifying those payments.” In re W.C.R., No. 06-15-00001-CV, 2015 WL 3989149, at *2 (Tex.
App.—Texarkana July 1, 2015, no pet.) (mem. op.) (quoting In re K.R.L., No. 06-09-00010-CV,
2009 WL 1748965, at *2 (Tex. App.—Texarkana June 23, 2009, no pet.) (mem. op.)). “An
appellate court should not disturb a child-support order unless a clear abuse of discretion is shown.”
3
The text of the order follows:
In addition to all other . . . child support provisions provided in this order, the following is
hereby ORDERED:
1. Educational and Miscellaneous Expenses - [Mother] shall pay 50% and [Father]
shall pay 50% of the cost of:
a. All other expenses associated with school and/or extracurricular activities
including: class trips, enrollment or registration fees, activity fees, and
transportation associated with such activities.
b. [Mother] shall direct all receipts for costs incurred related to the expenses
described above to [Father], who shall remit payment directly to [Mother] within
10 days of receipt.
The provision of education and miscellaneous expenses will be considered child support
and enforceable as such.
4
The trial court also ordered Father to maintain health insurance for the children, but Father does not complain that
this amount was in excess of child support, likely because (1) “[m]edical support is an additional child-support
obligation that may be enforced by any means available for the enforcement of child support,” and (2) the cost of the
children’s healthcare was already deducted from Father’s paycheck. In re A.L.S., 338 S.W.3d 59, 67 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied) (citing TEX. FAM. CODE ANN. § 154.183(a)).
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Id. “[A]n obligation to pay a minor child’s school tuition is necessarily an obligation to provide
child support.” In re H.L.B., No. 05-18-01061-CV, 2020 WL 104623, at *3 (Tex. App.—Dallas
Jan. 9, 2020, no pet.) (mem. op.) (citing In re Grossnickle, 115 S.W.3d 238, 247 (Tex. App.—
Texarkana 2003, no pet.); Huffines v. McMahill, No. 07-10-00029-CV, 2010 WL 2836980, at *2
(Tex. App.—Amarillo July 20, 2010, no pet.) (“[T]he most common type of child support order is
one that requires the parent who is not managing conservator to pay the managing conservator a
sum of money on a periodic basis. But other types of support are authorized. Child support
payments may include a specific expense, such as tuition.”) (quotation marks omitted) (citations
omitted)).
At trial, the trial court said, “Father will pay child support in accordance with the
guidelines,” and told Father,
[I]t is possible that had you provided tax returns . . . and all of your paycheck stubs
that the child support could be lower or higher than what’s going to be ordered, but
since you failed to comply with the subpoena duces tecum, it’s going to be based
solely on what you have provided . . . today.[5]
For purposes of determining child support, “[w]henever feasible, gross income should first
be computed on an annual basis and then should be recalculated to determine average monthly
gross income.” TEX. FAM. CODE ANN. § 154.061(a). Among other things, the term “resources”
includes 100% of all wage and salary income and other compensation for personal services, self-
employment income, interest, dividends, royalties, annuities, capital gains, gifts, and prizes. Under
the statutory guidelines, the trial court was to presumptively apply thirty percent of Father’s
monthly net resources as child support. TEX. FAM. CODE ANN. § 154.125 (Supp.).
5
Our appellate record contains only one paycheck stub.
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Father does not argue that the trial court lacked authority to order the payment of half of
the children’s educational and miscellaneous expenses. Instead, Father argues that the addition of
this obligation caused his child support payments to exceed thirty percent of his monthly net
resources. It is Father’s burden to provide us with a record that supports his claimed error. See
Moore v. Hawkins, No. 06-09-00076-CV, 2011 WL 907781, at *1 n.3 (Tex. App.—Texarkana
Jan. 7, 2011, no pet.) (mem. op.). Since the record shows that Father failed to comply with the
subpoena, Father cannot show that the amount he was ordered to pay exceeded thirty percent of
his monthly net resources.
While our appellate record only contains one paycheck stub covering a two-week period
listing gross pay at $2,179.00 and net pay at $1,633.70, it is apparent that Father brought a few
other paycheck stubs with him to court that are not included in our appellate record. Father testified
that his paychecks varied significantly for each pay period due to overtime pay and agreed that his
latest paycheck for a two-week period listed his gross bi-monthly pay at $5,392.80 and his after-
tax pay at $3,925.13. The only figures in the record seem to indicate that the order to pay child
support of $1,214.22 was much less than the statutory guidelines for child support.
The record also fails to include any evidence of the cost of educational and miscellaneous
expenses. Even so, the trial court stated that Father would pay child support in accordance with
the guidelines. Because there were no findings of fact, we presume that the trial court considered
the tutoring expenses and other educational and miscellaneous expenses when issuing its order and
made an implied finding that all amounts of child support ordered were within the statutory
guidelines. As a result, we conclude that the record does not support Father’s first point of error.
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IV. The Trial Court Did Not Abuse Its Discretion by Granting Mother Certain Exclusive
Rights
“The Texas Family Code sets forth ‘significant hurdles’ before a conservatorship order
may be modified.” P.M.G., 405 S.W.3d at 411 (quoting A.L.E., 279 S.W.3d at 428). “A court
may modify a conservatorship order. . . . if modification would be in the best interest of the child’
and ‘the circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed’ since the date of the rendition of the [last order].” Id.
(quoting TEX. FAM. CODE ANN. § 156.101(a)(1)(A)).
Father argues that the trial court’s grant of certain exclusive rights to Mother was an abuse
of discretion because (1) there was not a material and substantial change in circumstances since
the trial court’s last order in December 2016 and (2) Mother’s award of these exclusive rights was
not in the children’s best interests. We disagree.
A. Right to Designate Primary Residence Without Geographical Restriction
In his second point of error, Father complains of the trial court’s award to Mother of the
exclusive right to designate the children’s primary residence without geographical limitation. If a
trial court appoints both parties as joint managing conservators, “it must designate the conservator
who has the exclusive right to determine the primary residence of the child and 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.” Matter of Marriage of Christensen,
570 S.W.3d 933, 938 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. FAM. CODE ANN.
§ 153.134(b)(1)). “[T]he best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to the child.” Id.
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(quoting TEX. FAM. CODE ANN. § 153.002). “The trial court has wide latitude in determining what
is in the best interest of the child.” Id. (citing Gillespie, 644 S.W.2d at 451).
Furthermore, these types of cases are “intensely fact driven, which is why courts have
developed best-interest tests that consider and balance numerous factors.” Id. (quoting Lenz v.
Lenz, 79 S.W.3d 10, 19 (Tex. 2002)). “The Texas Supreme Court has instructed courts to consider
the public policies outlined in Section 153.001(a) of the Texas Family Code.” Id. (citing Lenz, 79
S.W.3d at 14). That Section specifies 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).
A court may consider the following Holley factors relevant to a best-interest finding:
(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 and the
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 the individuals, (7) the stability of the home, (8) acts or omissions by
a parent tending to show that the existing parent-child relationship is inappropriate,
and (9) any excuses for the acts or omissions of a parent.
Christensen, 570 S.W.3d 938 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). In
Lenz, the Texas Supreme Court set out the following additional factors that may be relevant to the
determination of a child’s best interest when considering a parental relocation:
(1) the reasons for and against the move, (2) the education, health, and leisure
opportunities afforded by the move, (3) the accommodation of the child’s special
needs or talents, (4) the effect on extended family relationships, (5) the effect on
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visitation and communication with the noncustodial parent, (6) the noncustodial
parent’s ability to relocate, and (7) the child’s age.
Id. (citing Lenz, 79 S.W.3d at 15–16).
Here, the trial court heard that Mother wished to accept a store manager position in
Louisiana, which would afford her a good opportunity to provide for her children. She had also
had a child with Carlton, who lived in Louisiana, and wished to reunite D.L.N., E.L.N., and J.L.N.
with their sibling. Mother provided the children with a safe and stable home and showed that she
had resources in Monroe to ensure that the children had adequate care while she was working.
Although Father established that the children had a good support system in Mount Pleasant, a place
where they had lived for a majority of their lives, the trial court found that Father was not able to
watch the children during his periods of possession. The trial court explained its reasoning in
omitting a geographical restriction as follows:
The Supreme Court has held -- and so have the cases that followed it -- that it is in
the children’s best interest that whenever possible they be raised by a parent.
And I know, [Father], that you are doing the best that you can, that you have a lot
of obligations with your job, but it appears to the Court that the children are being
primarily raised by your mother and grandmother and you whenever your job
allows it.[6]
Also, the children were young and both D.L.N. and J.L.N. had medical needs. J.L.N. was
also behind developmentally and needed speech therapy. Mother explained the many difficulties
she had experienced with Father who had secreted the children from her at times and refused to
cooperate with Mother’s efforts to provide the children with medical care and schooling. Though
6
Mother testified that she paid Father’s mother and grandmother to watch the children when she was working until
Father forbade his family fom caring for the children during Mother’s period of possession.
13
there were programs to assist J.L.N. with her developmental needs, Father had refused to allow
Mother to enroll the child in school so she could take advantage of those programs. Mother also
testified that Father was abusive toward her and had taught D.L.N. to fight. Mother testified that
the children enjoyed the time spent living in Monroe, which had good schools and better
healthcare, especially for D.L.N. Based on this evidence, the trial court was free to determine that
the move to Monroe would afford the children better healthcare, education, and supervision.
In considering public policies outlined in the Texas Family Code, the trial court ensured
that the children would have frequent and continuing contact with Father through a standard order
for possession of and access to the children. As a result, and when considering Father’s work
schedule, the trial court could have found that the modified order would have minimal effect on
extended family relationships and visitation and communication with Father. Also, nothing
showed that Father, who often drove several hours for work out of town, would be unable to
relocate closer to Monroe. Given the terms of the modified order, the trial court could have found
that it would encourage both parents to share in the rights and duties of raising the children.
In sum, the facts showed that the circumstances of the parties had materially and
substantially changed since December 2016 and that the trial court’s prior order had become
unworkable. Mother had another child and wished to relocate to accept a job offer while Father
had accepted a position that did not enable him to personally care for the children during his
periods of possession under the trial court’s prior order. When considering the Lenz factors, Holley
factors, and the public policies of the Texas Family Code, we find no abuse of discretion in the
trial court’s ruling that it was in the best interests of the children for Mother to have the exclusive
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right to designate the children’s primary residence without geographical restriction. As a result,
we overrule Father’s second point of error.
B. Mother’s Other Exclusive Rights
In his last point of error on appeal, Father argues that the trial court abused its discretion in
awarding Mother the exclusive rights to consent to the children’s health and mental health care
needs, make decisions about their education, maintain their passports, consent to marriage or
enlistment of the children in the armed forces, represent the children in legal action, act as the
children’s agent, and receive services and earnings of the children, except as provided by Section
264.0111 of the Texas Family Code.
“The court shall specify the rights and duties of a parent that are to be exercised . . .
exclusively by one parent.” TEX. FAM. CODE ANN. § 153.071. “The court may limit the rights and
duties of a parent appointed as a conservator if the court makes a written finding that the limitation
is in the best interest of the child.” TEX. FAM. CODE ANN. § 153.072. Here, the trial court found
that Mother’s possession of these exclusive rights was in the children’s best interests.
The record showed that Father had interfered in Mother’s attempts to obtain schooling and
adequate medical care for the children. Father had also taken Mother’s green card, had threated
to take the children to Italy without Mother’s consent, has previously moved the children to a
location undisclosed to Mother, and had failed to relinquish J.L.N.’s social security card when
needed. The trial court also heard that Father refused to cooperate with Mother on even simple
tasks, such as picking up medication for his son, and would withhold information and consent to
decisions involving the children just to place undue burdens on Mother. Due to the record
presented in this case, we find no abuse of discretion in the trial court’s finding that providing
15
Mother with the complained-of exclusive rights was in the children’s best interests. As a result,
we overrule Father’s last point of error.
V. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: August 3, 2020
Date Decided: August 19, 2020
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