Beatrice Adriana Sandoval v. Daniel Martinez ( 2019 )

Opinion issued December 17, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00587-CV
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BEATRICE SANDOVAL, Appellant
V.
DANIEL MARTINEZ, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Case No. 2015-60445
MEMORANDUM OPINION
This is an appeal from the trial court’s order modifying the parent-child
relationship, which removes appellant, Beatrice Sandoval, and appellee, Daniel
Martinez, as joint managing conservators of their minor son, and makes Daniel the
sole managing conservator and Beatrice the possessory conservator. In two issues
on appeal, Beatrice contends that the trial court erred in (1) finding that changed
circumstances support the modification and (2) entering a judgment that did not take
into consideration Beatrice’s two other minor children in setting child support and
did not impose a geographic limitation to Texas on Daniel’s right to designate the
child’s primary residence. We affirm in part and reverse and remand in part.
BACKGROUND
Beatrice and Daniel are parents of a child, DMJ,1 who was two years old at
the time of trial. On February 24, 2016, while the child was an infant, Beatrice and
Daniel entered into an “Agreed Order in Suit Affecting the Parent-Child
Relationship.” Under this original agreed order, both parents were appointed joint
managing conservators, with Beatrice having the exclusive right to designate the
child’s primary residence, which was required to be “in HARRIS or any contiguous
county.”
Thereafter, the relationship between the parents deteriorated, and Beatrice was
arrested and charged with assaulting Daniel’s new girlfriend, Katie, during an
exchange of possession in September 2016.2
1
For purposes of this opinion, we refer to the child by the alias DMJ.
2
Beatrice received deferred adjudication and the charges were dismissed once she
successfully completed the deferred-adjudication requirements.
2
In December 2016, Beatrice took the child to live with her mother in
California. Her other children were already there, and she wanted to join them. She
also claimed that she moved because she was having trouble financially and that she
was frightened of Daniel.
On March 10, 2017, Daniel filed an “Emergency Motion to Modify
Conservatorship and Possession or Access,” alleging that Beatrice had “violated the
present orders of this court” and had prevented Daniel from “seeing the child for the
last four months.” Beatrice returned to Texas with the child sometime that same
month. Before the motion to modify went to trial, the trial court signed temporary
orders placing the child with Daniel.
Daniel’s motion to modify went to trial on March 26, 2018. At trial, both
parties testified and presented evidence about their difficult relationship.
Specifically, there was evidence about Beatrice’s assault against Daniel’s now-wife,
Katie. There was also evidence of violence against Daniel, Beatrice’s older daughter,
and injuries to Beatrice and Daniel’s two-year-old child while he was in Beatrice’s
care. Daniel testified that since the child was returned to his possession, the child
also showed signs of aggressive behavior. When Daniel took the child to the doctor,
the medical records note that the child was aggressive with the medical
professionals. Finally, both Daniel and Beatrice testified about the almost four-
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month period, during which Beatrice took the child and moved to California to live
with her mother.
At the close of the trial, the trial court stated:
I find there has been a change in circumstance. I find that the
respondent mother has committed family violence. I am appointing the
father as the sole managing conservator of the child, the mother as the
possessory conservator of the child. He may determine the residence of
the child within the State of Texas.
The respondent has a modified standard possession order, which would
be all of the standard possession order without Thursdays. Pickup and
return will be at the petitioner’s residence unless the parties can agree
otherwise.
Respondent is to pay child support based on a gross income of $400 a
week with the offset for her other children beginning April 1st, 2018,
by wage withholding. Petitioner is to provide the health insurance for
the child, and the parties will both pay one-half of the uninsured
medical support as child support. Petitioner’s child support is
terminated per the prior temporary order.
On April 24, 2018, the trial court signed an “Order in Suit to Modify Parent-
Child Relationship.” The order, which is the subject of the present appeal, states
that “[t]he Court finds that the material allegations in the petition to modify are true
and that the requested modification is in the best interest of the child.” The order
does not specify family violence as the basis for the change in circumstances
required to modify the original custody order. The order removes the parents as joint
managing conservators and makes Daniel the sole managing conservator and
Beatrice the possessory conservator.
4
On May 7, 2018, Beatrice timely filed a request for findings of fact and
conclusions of law. Then, on July 3, 2018, over two months after the trial court
signed the modification order, Beatrice notified the trial court of past-due findings
of fact and conclusions of law. The trial court did not file findings of fact and
conclusions of law.
This appeal followed.
CUSTODY MODIFICATION BASED ON CHANGED CIRCUMSTANCES
In issue one, Beatrice contends that “[t]he Trial Court abused its discretion by
appointing Daniel Martinez as Sole Possessory Conservator based on a finding of
family violence.”
Standard of Review and Applicable Law
Because a trial court has broad discretion to decide the best interest of a child
in family-law matters such as custody, visitation, and possession, we review a trial
court’s order modifying conservatorship under an abuse-of-discretion standard. See
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its
discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly
analyze or apply the law. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston
[14th Dist.] 2002, no pet.).
Under the abuse-of-discretion standard, legal and factual sufficiency of the
evidence are not independent grounds of error but are factors in assessing whether
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the trial court abused its discretion. See In re D.S., 76 S.W.3d at 516. An appellate
court will sustain a legal-sufficiency issue when (1) the record discloses a complete
absence of evidence of a vital fact, (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (3)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence establishes conclusively the opposite of a vital fact. See Uniroyal Goodrich
Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether
there is legally sufficient evidence to support the trial court’s exercise of discretion,
we consider the evidence and inferences favorable to the finding if a reasonable
factfinder could, and disregard evidence contrary to the finding unless a reasonable
fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002); In re P.M.B., 2 S.W.3d 618, 621–22
(Tex. App.—Houston [14th Dist.] 1999, no pet.). We defer to the factfinder’s
resolution of underlying facts and to credibility determinations that may have
affected its determination and will not substitute our judgment for the factfinder’s.
In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
To prevail on his petition to modify the parent-child relationship, Daniel had
to establish that (1) modification would be in the child’s best interest and (2) “the
circumstances of the child, a conservator, or other party affected by the order has
materially and substantially changed” since the date of the rendition of the February
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23, 2016 “Agreed Order in Suit Affecting the Parent-Child Relationship.” See TEX.
FAM. CODE § 156.101(a)(1)(A). Here, Beatrice does not challenge the implied
finding that the modification was in the child’s best interest; she challenges only the
implied finding of a material and substantial change in circumstances. Specifically,
she contends that the evidence is insufficient to support the trial court’s implied
finding of a change of circumstances based on family violence.
In deciding whether a material and substantial change of circumstances has
occurred, a factfinder is not confined to rigid or definite guidelines; instead, the
determination is fact specific and must be made according to the circumstances as
they arise. In re A.L.E., 279 S.W.3d at 428. Material changes may include (1) the
marriage of one of the parties, (2) poisoning of a child’s mind by one of the parties,
(3) change in the home surroundings, (4) mistreatment of a child by a parent or step-
parent, or (5) a parent’s becoming an improper person to exercise custody. Id. at 429.
Additionally, a course of conduct pursued by a managing conservator that hampers
a child’s opportunity to favorably associate with the other parent may suffice as
grounds for redesignating managing conservators. In re Marriage of Chandler, 914
S.W.2d 252, 254 (Tex. App.—Amarillo 1996, no writ); Gunther v. Gunther, 478
S.W.2d 821, 829–30 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.).
A material and substantial change in circumstances may be established by either
direct or circumstantial evidence. In re A.L.E., 279 S.W.3d at 429.
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Because no findings of fact were entered in this case,3 we infer that the trial
court made all findings necessary to support its judgment. See Worford v. Stamper,
801 S.W.2d 108, 109 (Tex. 1990); In re P.A.C., 498 S.W.3d 210, 217 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). Under these circumstances, we review the
record to determine whether some evidence supports the judgment and the implied
findings, considering only the evidence most favorable to the judgment and
3
Rule of Civil Procedure 296 provides that in “any case tried in the district or county
court without a jury, any party may request the court to state in writing its findings
of fact and conclusions of law.” TEX. R. CIV. P. 296. Once properly requested, a
trial court has twenty days to file its findings of fact and conclusions of law, and if
the trial court fails to do so, the requesting party must notify the trial court within
thirty days after filing the original request. TEX. R. CIV. P. 297. When a party
notifies the trial court of its failure to file findings and conclusions, but the notice is
untimely, the requesting party has waived the right to complain on appeal. See Vee
Bar, Ltd. v. BP Amoco Corp., 361 S.W.3d 128, 131 (Tex. App.—El Paso 2011, no
pet.) (holding ranch owners waived any right to complain on appeal about trial
court’s failure to file findings of fact and conclusions of law where owners’ filing
of past-due-findings notice in trial court was untimely).
Here, the trial court signed its final modification order on April 24, 2018. On May
7, 2018, Beatrice timely filed a request for findings of fact and conclusions of law.
Then, on July 3, 2018, Beatrice notified the trial court of past-due findings of fact
and conclusions of law. Beatrice’s notice of past-due findings and conclusions was
not timely because it was more than thirty days after the May 7, 2018 request.
Because her notice of past due findings was untimely Beatrice has waived the right
to complain about the lack of findings by the trial court.
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upholding the judgment on any legal theory supported by the evidence. Worford,
801 S.W.2d at 109; P.A.C., 498 S.W.3d at 217.
With these principles in mind, we review the evidence for a material and
substantial change in circumstances since the February 23, 2016 agreed custody
order that would, in the child’s best interest, justify a custody modification.
Analysis
Beatrice contends that there was no evidence to support the trial court’s
implied “family violence” finding because it referred to “[a]n incident between
Beatrice Sandoval and Katie Martinez, while Katie Martinez was married to another
man, not living with Daniel Martinez, but in a dating relationship with Daniel
Martinez.” However, we need not decide whether Beatrice’s assault against Katie
constitutes “family violence,” as that term is defined by the Family Code, because
other evidence also supports the trial court’s change-of-circumstances finding.
In addition to the assault against Katie, there was also evidence that, at a beach
party in the summer of 2016, Beatrice followed Daniel in her car and rear-ended him
because she was angry that he allowed someone to sit and cool off in his truck while
not inviting her children to do so. Although Beatrice claimed that the incident
occurred because she was texting, her foot slipped off the brake, and she bumped the
barbecue pit that Daniel had attached to the back of his truck, the trial court, as
factfinder, was entitled to disbelieve her testimony See In re A.L.E., 279 S.W.3d at
9
427 (noting that we defer to factfinder on credibility issues). This would be some
evidence of family violence against a family member as those terms are defined by
Family Code section 71.003 and 71.004(1).4
Beatrice’s older daughter testified in an earlier temporary-order hearing that
Beatrice struck her in the head, arm, and leg. This, too, is some evidence of family
violence, as those terms are defined by the Family Code. See id. Although Beatrice
contended that her daughter had lied about the abuse, the trial court, as factfinder,
was entitled to disbelieve her testimony. See id.
There was also evidence that, on one occasion, when Beatrice returned the
child after a period of possession, Daniel noticed an iron burn on the child. Beatrice
testified that she left the iron on the floor because she did not want it to fall on the
child, but that when he walked by the iron on the floor, he burned himself. Daniel
also noticed a gash on the child’s chin and that he had a bump between his eyes and
two black eyes. Beatrice claimed that these injuries were caused when the child
4
“Family violence” means “an act by a member of a family or household against
another member of the family or household that is intended to result in physical
harm, bodily injury, assault, or sexual assault or that is a threat that reasonably
places the member in fear of imminent physical harm, bodily injury, assault, or
sexual assault, but does not include defensive measures to protect oneself.” TEX.
FAM. CODE § 71.004(1); see also TEX. FAM. CODE § 101.0125 (applying definition
in section 71.004 to suits affecting parent-child relationship). “Family” includes
individuals related by consanguinity or affinity or who are the parents of the same
child, without regard to marriage. TEX. FAM. CODE. § 71.003.
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accidentally fell. Again, the trial court, as factfinder, was entitled to disbelieve
Beatrice’s explanations. See id.
Finally, and perhaps most importantly, there was evidence that, even though
the original decree provided that Beatrice was required to maintain the child’s
primary residence in Harris or any contiguous county, she moved with the child to
California on December 24, 2016, and kept him there until March 2017. During her
stay in California, Daniel was deprived of his court-ordered visitation, including the
Christmas holidays in 2016. Beatrice claimed that she moved to her mother’s house
in California because she was having a hard time financially and she was scared for
her safety because Daniel “was coming around the apartment, driving around crazy,
screaming at [her], banging on [her] door, blowing his horn.” She also said that her
other children were already living with her mother in California and she wanted to
join them. The record shows that Daniel filed an “Emergency Motion to Modify
Conservatorship and Possession or Access” on March 10, 2017, and that Beatrice
returned to Texas about that time. Beatrice testified that she returned to Texas
because she wanted to obtain custody “the legal way.”
In Arredondo v. Betancourt, 383 S.W.3d 730, 739–40 (Tex. App.—Houston
[14th Dist.] no pet.), the mother appealed from a modification that designated the
father as the conservator with the exclusive right to designate the child’s primary
residence. The court of appeals held that there was evidence to support the
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modification—the mother had moved the child to Mexico without telling the father
beforehand, she failed to return the child to the father for his possession period,
including the Christmas visitation, and the father’s ability to exercise visitation
would be significantly impaired if the mother were allowed to move to Mexico with
the child. Id. It should be noted that the court of appeals found sufficient evidence
to show a change of circumstances, even though when the mother moved the child
to Mexico there was no geographic restriction in the decree preventing her from
doing so. Id. at 738.
In this case, there was a geographic restriction in the decree that required
Beatrice to “maintain the child’s primary residence in HARRIS or any contiguous
county.” Despite that restriction, Beatrice moved the child to California without
prior notice to Daniel, and, in doing so, she deprived him of his court-ordered
visitation. Following the reasoning of the court in Arredondo, which applies even
more so because of the geographic restriction in this case, we conclude that there is
sufficient evidence to show a change in circumstances. See 383 S.W.3d at 739–40.
Based on the assault against Katie, even if not family violence, the evidence
of family violence against Daniel, Beatrice’s older daughter, and the child, plus the
fact that Beatrice moved to California in violation of the court order thereby
depriving Daniel of visitation rights, the trial court did not abuse its discretion in its
implied finding of a change in circumstances.
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Accordingly, we overrule issue one.
DOMICILE RESTRICTION AND CHILD-SUPPORT CREDIT
In issue two, Beatrice contends the trial court “erred in signing the Judgment
in Suit to Modify that did not impose a domicile restriction on the child to Texas and
did not calculate child support considering [Beatrice’s] two other children, not
before the trial court.”
Daniel “concedes that [Beatrice] should be entitled to a reduction of child
support due to the amount of child support assessed in the final order not taking into
consideration the two other minor children not before the Court.” Daniel also
acknowledges that “the domicile of the child should be restricted to the state of Texas
as per the ruling made by the Judge.” We agree that the judgment does not include
the restriction and credit requested by both parties, and that the trial court indicated
that it intended to include such in its judgment.
Accordingly, we sustain issue two.
CONCLUSION
We reverse only the portions of the order determining the amount of child
support Beatrice owes and giving Daniel the right to designate the child’s primary
residence without a geographical limitation to the State of Texas. We remand the
case to the trial court to (1) recalculate Beatrice’s child support, taking into
consideration her other two minor children, and to (2) impose a geographical
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limitation to the state of Texas on Daniel’s right to designate the primary residence
of the child. We affirm the remaining portions of the judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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