in the Matter of the Marriage of Nikki Lanelle Christensen and Dean Christensen, Jr., and in the Interest of W.C., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00070-CV
IN THE MATTER OF THE MARRIAGE OF
NIKKI LANELLE CHRISTENSEN AND DEAN CHRISTENSEN, JR.,
AND IN THE INTEREST OF W.C., A CHILD
On Appeal from the 5th District Court
Bowie County, Texas
Trial Court No. 17D0769-005
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Burgess
OPINION
This is an appeal from a final decree of divorce between appellant Nikki Lanelle
Christensen and appellee Dean Christensen, Jr. Specifically, Nikki challenges the divorce decree’s
geographical residency restriction requiring their child, W.C., to reside in Bowie County, Texas.
Because we hold that there was no error in the divorce decree, we affirm the trial court’s judgment.
I. Background
After almost eight years of marriage to Dean, on July 5, 2017, Nikki filed an original
petition for divorce. In her petition, Nikki asked the trial court to appoint her as joint managing
conservator of W.C., 1 the sole child born during the parties’ marriage. She also asked the court to
designate her as the conservator who had the exclusive right to designate W.C.’s primary
residence. On October 12, 2017, Dean filed an original counterpetition for divorce, and on
October 20, 2017, he filed an amended counterpetition for divorce. In his amended
counterpetition, Dean averred that both parties should be appointed joint managing conservators,
but he asked that he be given the exclusive right to designate W.C.’s primary residence. 2
Prior to filing for divorce, Nikki and Dean had lived for several years in Atlanta, Texas,
which is located in Cass County. 3 During that time, W.C. attended pre-K in Cass County. While
1
We refer to the children by initials in order to protect their privacy. See TEX. FAM. CODE ANN. § 109.002(d) (West
Supp. 2018).
2
At the time of W.C.’s birth, Dean had sole custody of his two children from another relationship, G.T. and G.N.
3
Although the distance between the cities and the counties in which they are located are not included in the record, we
may take judicial notice of the locations of “cities, counties, boundaries, dimensions, and distances because
geographical facts such as these are easily ascertainable and capable of verifiable certainty.” Butts Retail, Inc. v.
Diversifoods, Inc., 840 S.W.2d 770, 774 (Tex. App.—Beaumont 1992, writ denied).
2
Dean and Nikki lived in Atlanta, Dean worked at Red River Army Depot and Nikki worked at
Wadley Regional Medical Center, 4 both of which are located in Bowie County. When Nikki and
Dean separated, Nikki moved to an area near Wake Village and was living in a three-bedroom,
two-bath duplex. Dean moved to a newly purchased, two-bedroom home in New Boston, Texas, 5
with his two older sons, G.T. and G.N. At that time, W.C. was attending Wake Village Elementary
School, had been doing very well in school, and had made friends while at school.
During the hearing, however, Nikki testified that she was in the process of moving to Red
River County because “[t]hat’s where [her] family support is.” She stated that she had no family
residing in Bowie County. Nikki also explained that she had a new job in Paris, Texas, which is
located in Lamar County. She stated that the job she had at Wadley did not pay her enough and
that she was “struggling monthly.” She stated that her new salary would be twenty thousand
dollars a year more than the salary she had been receiving while working at Wadley. According
to Nikki, it was approximately sixty miles from Dean’s home in Bowie County to her
grandmother’s home, where she planned to reside in Red River County. Nikki asked the court to
designate W.C.’s primary residence within either Bowie or Red River County.
Dean testified that he believed that it was in W.C.’s best interest to remain in Bowie County
because “he need[ed] to be with his family.” He stated that, in the event the trial court allowed
him to move with Nikki to Red River County, he would be unable “to exercise school to school
4
Nikki began working at Wadley in July 2016. She worked from 7:00 a.m. until 7:00 p.m., three days a week. Nikki
stated that she was making $20.82 per hour. At the time of the hearing, Nikki had an associate’s degree in nursing
and was in the process of working on a bachelor’s degree in nursing at Baldwin University. She explained that she
took classes online and “[had] to participate in discussions and write papers and occasionally do quizzes.”
5
Both Wake Village and New Boston are located in Bowie County.
3
visitation.” According to Dean, he had exercised visitation in accordance with the temporary order
“every chance [he got].” He stated that he had possession of W.C. every weekend and some week
nights. In Dean’s opinion, there were many medical facilities in Texarkana where Nikki could
find employment. Dean asked the trial court to award the parties joint managing conservatorship
of W.C., with Dean having the right to establish W.C.’s residency in Bowie County.
Following the hearing, the trial court entered a final decree of divorce, ordering, in relevant
part, “that the primary residence of [W.C.] shall be Bowie County, Texas, and the parties shall not
remove the child from Bowie County, Texas.” The divorce decree continued,
Nikki Lanelle Christensen shall have the exclusive right to designate [W.C.]’s
primary residence within Bowie County, Texas. . . . [T]his geographic restriction
on the residence of [W.C.] shall be lifted if, at the time Nikki Lanelle Christensen
wishes to remove [W.C.] from Bowie County, Texas for the purpose of changing
the primary residence of [W.C.], Dean Christensen, Jr.[,] does not reside in Bowie
County, Texas.
In addition, the trial court granted Dean extended visitation with W.C., allowing him to have
possession of W.C. on the second, fourth, and fifth weekends and on Thursdays from 5:00 p.m.
until the beginning of school the following day.
Nikki maintains that her new employment in Paris created a substantial commuting
problem. She contends, “The current drive from Wake Village to Paris is approximately one and
a half hour each way[,]” “versus the driving distance from [Red River County] to Paris,
approximately 24 miles, or a difference of 66 miles.” She also maintains that Dean’s failure to
pay child support further necessitated that she take the higher paying job in Paris. 6 For these
6
On November 13, 2017, the parties entered into an agreed temporary order wherein Dean was ordered to pay Nikki
$400.00 per month in child support, with the first payment being due on December 1, 2017. Following the final
4
reasons, Nikki appeals the trial court’s geographical restriction requiring W.C.’s primary residence
to remain in Bowie County. Specifically, Nikki contends that there was legally and factually
insufficient evidence to support the trial court’s imposition of a geographical residency
requirement restricting W.C.’s residency to Bowie County.
II. Standard of Review
An appellate court reviews a trial court’s order regarding conservatorship under an abuse
of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court
abuses its discretion when it acts arbitrarily and unreasonably or without reference to any guiding
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
However, “[i]n family law cases, the abuse of discretion standard of review overlaps with
traditional standards of review.” In re C.G.L., No. 06-13-00068-CV, 2014 WL 887778, at *3 (Tex.
App.––Texarkana Mar. 6, 2014, no pet.) (mem. op.) (citing In re A.B.P., 291 S.W.3d 91, 95 (Tex.
App.––Dallas 2009, no pet.); In re Matter of Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.
––Texarkana 1998, no pet.); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.––Austin 1997, no
pet.)). Thus, “legal and factual insufficiency are not independent grounds of reversible error, but
instead are factors relevant to our assessment of whether the trial court abused its discretion.” Id.
(citing A.B.P., 291 S.W.3d at 95; Scoggins v. Trevino, 200 S.W.3d 832, 836 (Tex. App.—Corpus
Christi 2006, no pet.); Doyle, 955 S.W.2d at 479. Of course, in making our evaluation, we
recognize that “[t]he trial court is in the best position to observe the demeanor and personalities of
divorce hearing, the trial court found that Dean was in contempt of court for failure to make child support payments
for the months of December 2017 and January, February, March, April, and May 2018. The trial court sentenced
Dean to 120 days in jail, but suspended his sentence and placed him on community supervision for a period of five
years. The record also shows that, on June 7, 2018, Dean paid $2,000.00 in child support to Nikki.
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the witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned by merely
reading the record.” Bates v. Tesar, 81 S.W.3d 411, 424 (Tex. App.—El Paso 2002, no pet.).
Moreover, a trial court does not abuse its discretion if there is some evidence of a probative and
substantive character to support its decision. Id. at 424–25; Jenkins v. Jenkins, 16 S.W.3d 473,
477 (Tex. App.—El Paso 2000, no pet.). Accordingly, we consider whether the trial court had
sufficient evidence upon which to exercise its discretion and whether it erred in exercising that
discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.––Dallas 2005, pet. denied); see
also Cisneros v. Dingbaum, 224 S.W.3d 245, 258 (Tex. App.—El. Paso 2005, no pet.).
III. Discussion
A. Sufficiency of the Evidence to Support a Geographical Residency Restriction
It is well settled that, when a trial court appoints 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. TEX. FAM. CODE
ANN. § 153.134(b)(1) (West 2014). Moreover, “[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.” TEX. FAM. CODE. ANN. § 153.002 (West 2014). The trial court has wide
latitude in determining what is in the best interest of the child. Gillespie, 644 S.W.2d at 451.
6
Furthermore, these types of cases are “intensely fact driven, which is why courts have
developed best-interest tests that consider and balance numerous factors.” 7 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. at 14. 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) (West 2014).
In Lenz, the court set out additional factors that may be relevant to the determination of a
child’s best interest after a parental relocation. Those factors include (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 visitation and communication with the noncustodial parent, (6) the
noncustodial parent’s ability to relocate, and (7) the child’s age. Lenz, 79 S.W.3d at 15–16. In
addition, a court may consider the Holley factors relevant to a best-interest finding, including
(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
7
Section 153.134 of the Texas Family Code is silent as to the factors a trial court should consider when it determines
whether a domicile restriction is in the best interest of the child. See TEX. FAM. CODE ANN. § 153.134 (West 2014).
7
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. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976).
In this case, Nikki asked the trial court to designate W.C.’s primary residence as either
Bowie County or Red River County, thereby conceding that Bowie County would be an acceptable
choice for W.C.’s residency. In addition, W.C. had been attending elementary school in Bowie
County and had been excelling in school and forming new friendships with other children his age.
Moreover, W.C. has family located in Bowie County, including his two half-brothers, G.T. and
G.N. Dean also stated that he would be unable to exercise his weekday visitations if Nikki were
allowed to relocate to Red River County. Further, Dean had been working for a substantial period
of time in Bowie County. While Nikki’s commute to work would be shorter if she and W.C. were
allowed to reside in Red River County, that fact is not determinative of whether it was in W.C.’s
best interest to relocate to that county. For these reasons, we find that there was legally and
factually sufficient evidence for the trial court to determine that a Bowie County geographical
residency restriction was in W.C.’s best interest.
We overrule Nikki’s first point of error.
B. The Trial Court’s Sua Sponte Imposition of a Geographical Residency
Restriction
Nikki also contends that the trial court erred when it sua sponte imposed a geographical
restriction on W.C.’s residency. Rule 301 of the Texas Rules of Civil Procedure provides, “The
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judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict,
if any, and shall be so framed as to give the party all the relief to which he may be entitled either
in law or equity.” TEX. R. CIV. P. 301. 8 A judgment, absent issues tried by consent, must conform
to the pleadings. State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.—San Antonio 1991,
no writ). Relief, therefore, may not be granted in the absence of pleadings to support that relief.
Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).
While a trial court may not grant relief to a party in the absence of pleadings to support
such relief, pleadings may be liberally construed to support the judgment. Frost v. Sun Oil Co.
(Delaware), 560 S.W.2d 467, 473 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ). To
determine whether a claim was pled, the court must find those pleadings adequate to state, “with
reasonable certainty” and without reference to information from another source, “the relief sought
with sufficient information upon which to base a judgment.” Stoner v. Thompson, 578 S.W.2d
679, 683 (Tex. 1979).
In cases affecting the parent-child relationship, however, the pleading requirements are of
lesser importance. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). In Leithold, the
petitioner sought a modification of the final decree of divorce to give him custody and control of
the child during the summer months. The Texas Supreme Court held that the petitioner’s pleading
was sufficient to support a judgment for lesser relief in the nature of modified visitation rights with
permanent custody as previously decreed. Id. The court explained,
8
“There are sizable exceptions” to the concept that a judgment must conform to the pleadings, “most of which have to
do with the idea that a matter may be tried by consent.” State for the Protection of Cockerham v. Cockerham, 218
S.W.3d 298, 304 (Tex. App.—Texarkana 2007, no pet.).
9
It is beside the point that . . . the trial court, whether erroneously or not, construed
the pleadings of petitioner as seeking only a modification of visitation rights; the
point is that once the child is brought under its jurisdiction by suit and pleading cast
in terms of custody and control, it becomes the duty of the court in the exercise of
its equitable powers to make proper dispositions of all matters comprehended
thereby in a manner supported by the evidence.
Id.
This Court addressed the issue of pleading requirements in In re Macalik, 13 S.W.3d 43
(Tex. App.—Texarkana 1999, no pet.). In Macalik, Thompson claimed that specific modifications
in the final order must have been requested in a pleading in order to provide her with notice of the
controverted issues to be decided and to afford her due process. We recognized that, “in cases
affecting the parent/child relationship, when the best interest of the child is always the overriding
consideration, technical rules of pleading and practice are of little importance, and fair notice is
afforded when the pleadings generally invoke the court’s jurisdiction over custody and control of
the children.” Id. at 45 (citing Leithold, 413 S.W.2d at 701).
In Dean’s amended counterpetition for divorce, Dean stated, in part, as follows:
“Counterpetitioner and Counterrespondent, on final hearing, should be appointed joint managing
conservators, with all the rights and duties of a parent conservator. Counterpetitioner should be
designated as the conservator who has the exclusive right to designate the primary residency of
the child.” Thus, Dean asked the trial court to determine the parties’ rights and duties related to
conservatorship over W.C. Therefore, his request necessarily invoked the jurisdiction of the trial
court over matters of custody and control, instilling the trial court with “decretal powers” over
W.C.’s geographic residence. See Leithold, 413 S.W.2d at 701 (“[A] suit properly invoking the
10
jurisdiction of a court with respect to custody and control of a minor child vests that court with
decretal powers in all relevant custody, control, possession and visitation matters . . . .”). 9
Because the pleadings were sufficient to support the trial court’s judgment, we overrule
Nikki’s second point of error.
IV. Conclusion
We affirm the judgment of the trial court.
Ralph K. Burgess
Justice
Date Submitted: January 8, 2019
Date Decided: February 6, 2019
9
In her brief, Nikki, citing In re P.M.G., 405 S.W.3d 406 (Tex. App.––Texarkana 2013, no pet.), states that we have
previously “concluded that a general request to address conservatorship invoked the trial court’s jurisdiction and
imbued the trial court with ‘decretal power’ which included a geographic restriction.” However, she asks that we
reconsider that ruling in light of recent cases from the Houston Fourteen Court of Appeals and the Amarillo Court of
Appeals holding that a mere request for change of conservatorship was not sufficient to grant the trial court authority
to impose a geographic restriction. See Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.––Houston [14th Dist.] 2013,
no pet.); Gomez v. Rangel, No. 07-13-00070-CV, 2014 WL 4441379 (Tex. App.––Amarillo Sept. 8, 2014, no pet.)
(mem. op.). Nevertheless, P.M.G., Flowers, and Gomez, each involved motions to modify suit affecting parent-child
relationship (SAPCR) orders, not original SAPCR proceedings. In original SAPCR proceedings, Section 153.134(b)
of the Texas Family Code specifically requires the trial court to “(1) designate the conservator who has the exclusive
right to determine the primary residence of the child” and it allows the trial court to “(A) establish, until modified by
further order, a geographic area within which the conservator shall maintain the child’s primary residence . . . .” TEX.
FAM. CODE ANN. § 153.134(b)(1)(A). Therefore, in original SAPCR proceedings, a general request for determination
of conservatorship necessarily imbues the trial court with discretion to impose a geographical restriction. Because
this case is an original SAPCR proceeding, we decline the invitation to reconsider our previous holding in P.M.G.
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