                              In the
                         Court of Appeals
                 Second Appellate District of Texas
                          at Fort Worth
                        ___________________________
                             No. 02-16-00386-CV
                        ___________________________

                                 C.H., Appellant


                                         V.

                                  S.L., Appellee



                     On Appeal from the 360th District Court
                             Tarrant County, Texas
                         Trial Court No. 360-578634-15


Before Walker and Pittman, JJ.; and Charles Bleil (Senior Justice, Retired, Sitting by
                                  Assignment).
                   Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

       In this appeal arising out of a divorce decree’s child-custody provisions

concerning C.H. (Mother) and S.L.’s (Father) daughter, A.S., Mother raises four

issues: (1) the trial court lacked subject-matter jurisdiction under the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA); (2) if the trial court did have

jurisdiction under UCCJEA, the trial court abused its discretion by failing to decline

jurisdiction and to transfer the case to a more convenient forum; (3) the trial court

erred in entering a default judgment and denying Mother a new trial because Mother

did not receive notice of the trial setting; and (4) the trial court’s custody order is not

supported by legally or factually sufficient evidence. We will affirm.

                                   BACKGROUND

I.     Factual Background

       Mother and Father were married in Karachi, Pakistan, in January 2008. A.S.

was born in Minnesota in 2008.1           Sadly, A.S. was born with several health

complications, which include Joubert Syndrome2 and nephronophthisis. Due to these

conditions, A.S. has required “significant” and “constant” medical care:


      Mother actually testified at the venue hearing that A.S. “came to Minnesota
       1

when she was two months old and has been living here since that time.”

       Joubert Syndrome is a rare brain malformation causing mental and physical
       2

development abnormalities. See Joubert Syndrome, CLEVELAND CLINIC (Jan. 21, 2016),
https://my.clevelandclinic.org/health/articles/6040-joubert-syndrome (last visited
Sept. 27, 2018).


                                            2
      • A.S. has been a patient at Mayo Clinic in Rochester, Minnesota since she was a
        toddler where she receives regular treatment and testing;

      • A.S. is a candidate for a kidney transplant;

      • A.S. has been a regular patient of the Noran Neurological Clinic in
        Minneapolis, Minnesota, where she receives regular tests and exams;

      • A.S. also receives a variety of therapy services from the Courage Center in
        Golden Valley, Minnesota; and

      • A.S. receives orthopedic treatment at the Shriners Hospital for Children in
        Saint Paul, Minnesota, and eye examinations from the University of Minnesota
        Medical Center.

         Mother asserts that Father physically abandoned her and A.S. in 2013 when he

moved from Minnesota to Texas, and thereafter never contacted or attempted to

contact A.S. However, at the end of 2014, Mother and A.S. came to Texas to move

in with Father in hopes of reconciliation.

II.      Procedural Background

         Reconciliation never occurred, and on July 1, 2015, Father filed a petition for

divorce in Tarrant County, Texas. Around this time, Mother and A.S. moved back to

Minnesota. Father’s petition stated that the court had jurisdiction over the divorce

because Father and Mother had lived in Tarrant County for the last 90 days and were

residents of Texas for the previous six months.

         Mother filed a pro se answer and attached a UCCJEA affidavit in which she

swore that A.S.’s place of residence for the previous five years was in Minnesota.




                                             3
Mother also filed a motion to dismiss and alternatively a motion to transfer venue

because Texas was an inconvenient forum.

      A.     Change-of-Venue Hearing

      On November 9, 2015, the trial court conducted a hearing on Mother’s motion

to dismiss or transfer. Father appeared in person at the hearing with his counsel and

Mother appeared pro se over the telephone from St. Paul, Minnesota. During the

hearing, the trial court asked Mother whether she had ever lived in Texas:

      THE COURT:          Okay. So have you ever lived in Texas?

      [MOTHER]:           Yes, I did.

      THE COURT:          And how long ago did you do that?

      [MOTHER]:           It was – it was only for a period of three months on
                          and off, back and forth between Minnesota and
                          Texas. And I would say in July.

      THE COURT:          Of what year?

      [MOTHER]:           This year.

      THE COURT:          Okay. So for a few months off and on in 2015?

      [MOTHER]:           Yes, Your Honor.

Mother testified that in about December 2014, she moved to Texas with A.S., during

which time they lived with Father. Mother conceded in her motion to dismiss that

she and A.S. were in Texas from December 20, 2014, to January 5, 2015; from

February 20, 2015, to March 15, 2015; from March 21, 2015, to April 25, 2015; and

from May 8, 2015, to July 1, 2015. In her UCCJEA affidavit, Mother provided four



                                          4
different addresses where A.S. had lived in the previous five years, all of which were

Minnesota addresses.

       On cross-examination, Mother testified that she had in fact lived in Texas,

obtained a Texas driver’s license, entered into a lease agreement with an apartment

complex, enrolled A.S. in a Texas school, and regularly brought A.S. to visit Texas

doctors. Mother also acknowledged that she had been convicted of “lying to the

police.” Finally, Mother testified that she had only moved back to Minnesota after

Father had filed the underlying petition for divorce and that she had intentionally

avoided service of the divorce petition.

       At the conclusion of the hearing, the trial court stated that it would deny

Mother’s motion to dismiss or transfer. Then on the record, the parties discussed a

scheduling order, which included mediation, to govern the proceedings of the case.

Mother stated that she understood the scheduling order. Before going off the record,

the trial court explained that the court coordinator would contact Mother to discuss a

trial setting.

       On October 28, 2015, the trial court entered a scheduling order. On May 24,

2016, Father’s counsel filed a notice of service providing that the scheduling order,

which had a May 26, 2016 trial date, had been sent by U.S. mail to Mother’s last-

known address.




                                           5
      B.     Default-Divorce Hearing

      On May 26, 2016, the trial court held a default-divorce hearing. Father’s

counsel informed the trial court that after Father and Mother participated in

mediation, Mother filed her own petition in Minnesota to decide the issue of custody

of A.S. Father’s counsel stated that Father appeared before the Minnesota court over

the phone and explained that the instant divorce petition was pending in Texas, so the

Minnesota court continued its hearing.

      Father’s counsel further asserted that “[Mother] is nowhere to be found. She

knows about today’s hearing. She’s been served. She has a scheduling order, but she

has not shown up, so we will be seeking a default specifically for the divorce, Your

Honor . . . .” Before proceeding with the default divorce prove-up, the bailiff

confirmed that he had called Mother’s name in the hallway and received no response.

The trial court also confirmed with the court coordinator that Mother had not

communicated with the coordinator. Before proceeding with the divorce hearing, the

trial court again inquired whether Mother had notice of the divorce hearing:

      THE COURT:          How about you guys? Have you heard anything?

      [COUNSEL]:          No, Your Honor. The only thing that I’ve -- I can
                          update the Court about is she has a Minnesota
                          lawyer and a Minnesota file. Nothing in Texas.
                          And, Your Honor, she is aware that, to the best of
                          my knowledge, that today is her trial date, Your
                          Honor.

      THE COURT:           All righty. Having taken judicial notice of the file, it
                           shows today is the trial date. I’m going to go ahead


                                           6
                            and also find that she’s in default, and you may
                            proceed. Did you send her notice, too, on top of
                            everything else?

       [COUNSEL]:           Your Honor, I sent the scheduling order. But,
                            Your Honor, on the 24th itself, this was discussed
                            in open court in Minnesota where her -- herself and
                            her lawyer were made aware of today as well, again,
                            so that’s one of the reasons the judge continued to
                            June 1st, Your Honor.

Father then stated under oath that he had served Mother with the divorce petition.

       Father also testified that he was asking the court to make him A.S.’s joint

managing conservator. Father stated that he had no objection to A.S. living in

Minnesota but that he did want a visitation schedule. Father then listed a litany of

requests concerning visitation dates, times, and conditions. The trial court granted the

divorce and all of Father’s requested relief.

       On July 13, 2016, the trial court rendered a final decree of divorce that stated

Mother had notice but failed to appear and included a determination of

conservatorship of A.S. naming Mother and Father as joint managing conservators.

According to the divorce decree, Mother was permitted to designate A.S.’s primary

residence, but Mother could not change it unless she provided advance notice to

Father. The divorce decree also ordered Mother to make A.S. available for weekly

communications with Father—at least three times during the weekdays and at least

twice on weekends. The divorce decree also attached standard possession orders for

both Mother and Father.



                                            7
       On July 20, 2016, Mother filed a motion for new trial, alleging that she did not

receive actual notice of the May 26, 2016 trial. On October 5, 2016, the trial court

held a hearing on the motion for new trial. Mother appeared but did not present any

testimony or evidence. The same day, the trial court overruled the motion for new

trial. This appeal ensued.

                     JURISDICTION UNDER THE UCCJEA

       In her first issue, Mother asserts that the trial court erred in entering the

divorce decree because it lacked jurisdiction to do so under the UCCJEA.

I.     Standard of Review and Applicable Law on Subject-Matter Jurisdiction

       Whether a court has subject-matter jurisdiction is a question of law that we

review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). Whether undisputed evidence of jurisdictional facts established a trial court’s

jurisdiction is also a question of law. Id.; City of Wichita Falls v. Jenkins, 307 S.W.3d 854,

857 (Tex. App.—Fort Worth 2010, pet. denied). The question of subject-matter

jurisdiction may be raised at any time, even for the first time on appeal, and may be

raised by the court if not raised by the parties. See Tex. Ass’n. of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993).

II.    Law Concerning UCCJEA

       “The UCCJEA encourages national uniformity in child-custody disputes; the

Act is an attempt to deal with the problems of competing jurisdictions entering

conflicting interstate child-custody orders, forum shopping, and the drawn out and

                                              8
complex child-custody legal proceedings often encountered by parties where multiple

states are involved.” In Interest of T.B., 497 S.W.3d 640, 644–45 (Tex. App.—Fort

Worth 2016, pet. denied).      Texas has adopted the UCCJEA as the “exclusive

jurisdictional basis for making a child-custody determination by a court of this state.”

Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.); see

also Tex. Fam. Code Ann. § 152.201 (West 2014).

      Located in Chapter 152 of the family code, the UCCJEA provides:

      a court of this state has jurisdiction to make an initial child custody
      determination only if:

             (1) this state is the home state of the child on the date of the
                 commencement of the proceeding, or was the home state of
                 the child within six months before the commencement of
                 the proceeding and the child is absent from this state but a
                 parent or person acting as a parent continues to live in this
                 state;

             (2) a court of another state does not have jurisdiction under
                 Subdivision (1), or a court of the home state of the child has
                 declined to exercise jurisdiction on the ground that this state
                 is the more appropriate forum under Section 152.207 or
                 152.208, and:

                    (A) the child and the child’s parents, or the child and at
                        least one parent or a person acting as a parent, have a
                        significant connection with this state other than mere
                        physical presence; and

                    (B) substantial evidence is available in this state concerning
                         the child’s care, protection, training, and personal
                         relationships;

              (3)    all courts having jurisdiction under Subdivision (1) or
                    (2) have declined to exercise jurisdiction on the ground that
                    a court of this state is the more appropriate forum to

                                           9
                   determine the custody of the child under Section 152.207 or
                   152.208; or

              (4) no court of any other state would have jurisdiction under the
                  criteria specified in Subdivision (1), (2), or (3).

Tex. Fam. Code Ann. § 152.201(a). Under the UCCJEA, the date for determining

whether a Texas court has jurisdiction to make an initial determination in a child-

custody action is the date the proceeding in Texas was commenced. In re B.A.B.,

124 S.W.3d 417, 419 (Tex. App.—Dallas 2004, no pet.).

       Texas courts have read Section 152.201 as providing that in an initial child-

custody determination, courts first look to the home state of the child and because the

UCCJEA prioritizes home-state jurisdiction, if any state is deemed to be the child’s

home state, generally no other state may exercise jurisdiction to make an initial child-

custody determination. Powell v. Stover, 165 S.W.3d 322, 327–28 (Tex. 2005).

III.   Analysis

       A.    “Child-Custody Proceeding”

       The threshold issue is whether the divorce decree arose out of a child-custody

proceeding. At the venue hearing, the trial court appeared to agree with Father’s

argument that the divorce proceeding was not a child-custody proceeding subject to

the UCCJEA because Father asserted he was only seeking visitation and not




                                          10
attempting to alter conservatorship.3 To the extent the trial court denied Mother’s

motion to dismiss or transfer on this basis, we cannot agree.

         The UCCJEA defines a “child custody proceeding” as “a proceeding in which

legal custody, physical custody, or visitation with respect to a child is an issue. The term

includes a proceeding for divorce.” Tex. Fam. Code Ann. § 152.102(4) (West 2014)

(emphasis added). A cursory examination of Father’s original petition for divorce

reveals that Father originally sought to be appointed sole managing conservator of the

child, as well as a standard visitation and access schedule under the family code. And,

although Father appeared to change course at the venue hearing, at which he

indicated that he was only seeking visitation and not to alter conservatorship,4 under


       THE COURT: Well, how can you make the same argument if it’s not a
         3

custody case?

      [MOTHER]: Because he’s asking for – even if it’s not custody, for visitation or
whatever. I’m not okay with that.

         THE COURT: Did you read 152.207? That’s all I’m asking.

         [MOTHER]: Okay. If it’s regarding this case, yes, I did. And then it doesn’t
apply.

       THE COURT: All of the sections that you are talking about apply if custody is
an issue. So my question to you is if custody is not on the table and he is not
contesting custody, is there another section that you want to refer to in making this
argument of convenience or inconvenience?

        [COUNSEL]: And do you know that he’s not asked for custody; he’s asked
         4

for visitation? Are you aware of that?

         [MOTHER]: Yes, I’m aware of that.


                                            11
the plain, unambiguous language of the UCCJEA, such a request for visitation still

falls within the UCCJEA’s definition of a child-custody proceeding. See id. Indeed,

the final decree of divorce named Father and Mother as joint managing conservators.

      Therefore, the underlying divorce proceeding is a child-custody proceeding as

defined by the UCCJEA; thus, the requisites of the UCCJEA must have been satisfied

for the trial court to exercise subject-matter jurisdiction over the child-custody

provisions of the divorce decree.

      B.     A.S.’s Home State

      Mother’s argument is straightforward: Texas was never the home state of

A.S.,5 so the trial court did not have subject-matter jurisdiction over the child-custody

portion of the divorce proceeding.

      The UCCJEA defines “home state” as “the state in which a child lived with a

parent or a person acting as a parent for at least six consecutive months immediately

before the commencement of a child custody proceeding.” Id. § 152.102(7). In

analyzing a child’s home-state status under the UCCJEA, the Supreme Court of Texas

has rejected a parent’s subjective-intent test.    Powell, 165 S.W.3d at 326.      Thus,

      5
        In attempting to argue that Minnesota is A.S.’s home state, Mother
immediately conceded that “Minnesota was not the home state of A.S. on the date
this action was filed, July 1, 2015, because she did live in Texas for some periods in
early 2015. . . . Her short period of living in Texas prevents Minnesota from being
her home state on the date of commencement of th[is] action.” Because home-state
jurisdiction is determined on the date the proceeding in Texas was commenced, In re
B.A.B., 124 S.W.3d at 419, we agree with Mother that Minnesota was not A.S.’s home
state for purposes of this appeal.


                                           12
Mother’s or Father’s subjective intent regarding A.S.’s home state is not relevant to

our analysis. See id. Instead, the determination is based on where the child lived, and

the child’s physical presence is the “central factor” in making this determination. Id.

at 328 (“We therefore hold that in determining where a child lived for purposes of

establishing home-state jurisdiction, the trial court must consider the child’s physical

presence in a state.”). Courts also consider the nature and quality of the child’s

contacts with Texas. See In re T.B., 497 S.W.3d at 645.

      Based on our de novo review, we hold that the trial court did not err by

concluding that it had home-state jurisdiction. At the venue hearing, Mother testified

that she and A.S. only visited Texas for a few months on-and-off in 2015, but that

Texas was never A.S.’s home state.        However, Mother’s subjective intent is not

relevant in determining A.S.’s home state. See Powell, 165 S.W.3d at 326. The trial

court received evidence that: (1) Mother had a Texas driver’s license; (2) A.S. first

moved to Texas with Mother in December of 2014; (3) A.S. lived in Texas in an

apartment with Mother and Father and that Mother had signed a lease agreement for

the apartment; (4) A.S. was enrolled in a Texas school as of April 7, 2015; (5) A.S. was

seeing doctors in Texas; and (6) Mother and A.S. had not moved back to Minnesota

until after Father had filed the underlying petition for divorce on July 1, 2015.

      Therefore, because A.S. had a physical presence in Texas for six consecutive

months—from December 2014 through July 1, 2015—at the time Father filed his

petition for divorce and because A.S. was enrolled in a Texas school, we hold Texas

                                           13
has home-state jurisdiction. See B.A.B., 124 S.W.3d at 419 (concluding Texas court

had jurisdiction under the UCCJEA by examining facts as of the date the proceeding

commenced); T.B., 497 S.W.3d at 646 (listing state where child attends school as a

factor in making an initial custody determination).

         C.   Significant-Connection Jurisdiction

         Mother argues in the alternative that A.S. does not have a significant

connection to Texas.        However, significant-connection jurisdiction under the

UCCJEA is only at issue when the child has no home state. See In re Oates, 104 S.W.3d

571, 578 (Tex. App.—El Paso 2003, no pet.) (“Significant connection jurisdiction

should be employed only when Texas is not the home state and it appears that no

other state could assert home state jurisdiction.”); In re E.K.N., 24 S.W.3d 586, 591,

592 (Tex. App.—Fort Worth 2000, no pet.) (“In Texas, home state jurisdiction

prevails over significant connection jurisdiction. . . . Therefore, significant connection

jurisdiction should be employed only in those instances where Texas is not the home

state and it appears that no other state could assert home state jurisdiction.”). Here,

because we held above that Texas has home-state jurisdiction, the UCCJEA’s

significant-connection jurisdiction is not applicable. See id. We overrule Mother’s first

issue.




                                           14
 TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO
                  DECLINE JURISDICTION

      In her second issue, Mother contends that even if Texas had home-state

jurisdiction, the trial court should have declined to exercise jurisdiction to make a

decree because Minnesota is a more convenient forum.

I.    Applicable Law and Standard of Review

      The Supreme Court of Texas has recognized that section 152.207 of the family

code provides “flexibility” during the adjudicative process and is intended to “avert

potential injustice” once the trial court has determined that it has jurisdiction over the

case. Powell, 165 S.W.3d at 327; see also Tex. Fam. Code Ann. § 152.207 (West 2014).

Thus, a Texas court that has home-state jurisdiction under the UCCJEA to make an

initial child-custody determination may nevertheless decline to exercise its jurisdiction

any time before making such a determination if it finds that it is an inconvenient

forum to make a child-custody determination under the circumstances and that a

court of another state would be a more appropriate forum. See Tex. Fam. Code Ann.

§ 152.207(a); Powell, 165 S.W.3d at 328.

      “The trial court may consider any relevant factor when deciding whether to

decline jurisdiction for inconvenient forum.” Barabarawi v. Rayyan, 406 S.W.3d 767,

774 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Among the nonexclusive

factors that should be weighed, the UCCJEA specifically enumerates the following:




                                           15
      (1) whether domestic violence has occurred and is likely to continue in
          the future and which state could best protect the parties and the
          child;

      (2) the length of time the child has resided outside this state;

      (3) the distance between the court in this state and the court in the state
          that would assume jurisdiction;

      (4) the relative financial circumstances of the parties;

      (5) any agreement of the parties as to which state should assume
         jurisdiction;

      (6) the nature and location of the evidence required to resolve the
         pending litigation, including testimony of the child;

      (7) the ability of the court of each state to decide the issue expeditiously
          and the procedures necessary to present the evidence; and

      (8) the familiarity of the court of each state with the facts and issues in
          the pending litigation.

See Tex. Fam. Code Ann. § 152.207(b).

      A trial court’s decision under Section 152.207 is reviewed for an abuse of

discretion. Barabarawi, 406 S.W.3d at 774. A trial court abuses its discretion if it fails

to analyze or apply the law correctly. Powell, 165 S.W.3d at 324.

II.   Analysis

      The evidence at the venue hearing demonstrated that A.S. and Mother lived

and had a physical presence in Texas for six consecutive months prior to Father filing

the divorce petition; in fact, Mother left Texas and intentionally evaded service of

process following the filing of the divorce petition, kept a storage unit in Texas, and

attended the venue hearing telephonically. Yet Mother cites comments from the trial


                                           16
court to support her argument that the court misunderstood the law and that the trial

court’s decision would have been different had it properly understood the law.

However, a trial court has discretion over the conduct of a hearing, which includes the

authority to express itself in exercising this broad discretion. In re J.W.G., No. 14-17-

00389-CV, 2017 WL 5196223, at *5 (Tex. App.—Houston [14th Dist.] Nov. 9, 2017,

pet. denied) (mem. op.). Thus, we decline to treat a trial court’s comments made as

part of its judicial function as testimonial evidence to consider in our analysis. See id.

       The case Mother cited in support of reversal is factually distinguishable because

it involved “an unusual situation in which neither parent nor the child resides in

Texas, yet one parent is pursuing a modification suit here.” In re Alanis, 350 S.W.3d

322, 327 (Tex. App.—San Antonio 2011, orig. proceeding). Unlike this case, in Alanis

there were no identified witnesses in Texas and the last action taken by a Texas court

in the matter occurred almost a decade earlier. See id. at 327–28. These facts are

certainly not present here as Father lived in Texas and would be a witness located in

Texas. And at the time Father filed his petition for divorce, Mother and A.S. still

resided in Texas. Indeed, Mother admitted to later leaving the state and avoiding

service of process.

       Therefore, we hold that the trial court did not abuse its discretion in retaining

jurisdiction because Texas is a convenient forum. See Barabarawi, 406 S.W.3d at

775 (concluding that there was no abuse of discretion in the trial court’s failing to

decline jurisdiction under Section 152.207). We overrule Mother’s second issue.

                                            17
 DEFAULT JUDGMENT AND MOTHER’S MOTION FOR NEW TRIAL

      In her third issue, Mother challenges the trial court’s denial of her motion for

new trial because she did not receive proper notice of the trial setting.

I.    Standard of Review and Applicable Law

      We review a trial court’s decision to overrule a motion to set aside a default

judgment and grant a new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v.

Lerma, 288 S.W.3d 922, 926 (Tex. 2009).

      In Craddock v. Sunshine Bus Lines, Inc., the Supreme Court of Texas established

the three-factor test for setting aside a default judgment. 133 S.W.2d 124, 126 (Tex.

1939). Under the Craddock test, no-answer default judgments should be vacated and a

new trial granted when the defaulting party establishes that (1) the failure to answer or

to appear was not intentional or the result of conscious indifference but rather was

due to a mistake or an accident; (2) the motion for a new trial sets up a meritorious

defense; and (3) granting a new trial will not cause delay or work other injury to the

prevailing party. In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006); Craddock, 133 S.W.2d

at 126. The Supreme Court of Texas has extended Craddock to post-answer default

judgments. Dolgencorp, 288 S.W.3d at 926.

II.   Analysis

      Mother’s motion for new trial and argument were predicated on a lack of

notice of the May 26, 2016 trial setting. Father concedes that “[t]he clerk’s record

contains no notice from the trial court or the clerk of the court to Appellant of the

                                            18
trial setting.” However, the divorce decree states, “Respondent, [Mother], had notice,

but failed to appear.” Mother’s motion for new trial was unverified and attached no

exhibits. Further, the record does not reflect that Mother presented evidence at the

motion-for-new-trial hearing.

       “When a party receives no notice of a trial setting, she satisfies the first prong of

Craddock and need not meet the remaining two.” In re R.K.P., 417 S.W.3d 544, 551–

52 (Tex. App.—El Paso 2013, no pet). To require otherwise would violate federal

due-process rights under the Fourteenth Amendment to the United States

Constitution. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86–87, 108 S. Ct. 896,

900 (1988). But “[n]otice of a trial setting does not always appear in the clerk’s record

and need not affirmatively appear in the record as a whole.” In re Marriage of Parker,

20 S.W.3d 812, 816 (Tex. App.—Texarkana 2000, no pet.). The law presumes that a

trial court will hear a case only after giving proper notice to the parties. Id.; Tex. Dep’t

of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812–13 (Tex. App.—Houston [14th Dist.]

1997, no pet.). Thus, in arguing a lack of notice, Mother was required to set forth

evidence to rebut the presumption of notice based on the recital in the divorce decree.

Parker, 20 S.W.3d at 816

       Mother filed an unverified motion for new trial, attached no affidavit to her

motion, and adduced no live testimony at the motion-for-new-trial hearing. As such,

Mother failed to rebut the presumption that she received proper notice. Accordingly,

we hold that the trial court did not abuse its discretion in overruling Mother’s motion

                                            19
for new trial.        See Dougherty-Williams v. Dougherty, No. 01-13-01087-CV,

2014 WL 2809827, at *2 (Tex. App.—Houston [1st Dist.] June 19, 2014, no pet.)

(overruling request to set aside default divorce decree because “the record from trial

affirmatively demonstrates that [wife] was provided notice of the trial setting and

nothing in the actual record supports [wife’s] argument otherwise”); Parker, 20 S.W.3d

at 816 (holding movant can and must present rebuttal evidence to overcome

presumption of notice because “[a] recitation of due notice of the trial setting in the

judgment constitutes some, but not conclusive, evidence that proper notice was

given”).

      We overrule Mother’s third issue.

                          SUFFICIENCY CHALLENGE6

      Mother’s final issue challenges that the evidence before the trial court was

legally and factually insufficient to support the custody order.

I.    Standard of Review

      We review the trial court’s order for child custody, control, possession, and

access for an abuse of discretion. In re T.D.C., 91 S.W.3d at 872; In re K.R., No. 02-15-

      6
       Although Mother attempts to raise a sufficiency challenge to the trial court’s
custody determination, legal and factual sufficiency are not independent grounds for
challenging a custody order. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort
Worth 2002, pet. denied) (op. on reh’g). They are, however, factors to consider in
determining whether the trial court abused its discretion—our standard for reviewing
a custody order. See id. Therefore, we construe Mother’s fourth issue as challenging
the custody order for an abuse of discretion due to insufficient evidence. See Tex. R.
App. P. 38.9.


                                           20
00276-CV, 2016 WL 3198611, at *6 (Tex. App.—Fort Worth June 9, 2016, no pet.)

(mem. op.).       Generally, the trial court has the broad discretion to grant

conservatorship to any party in a custody dispute so long as the award is in the best

interest of the child. Landry v. Nauls, 831 S.W.2d 603, 604 (Tex. App.—Houston

[14th Dist.] 1992, no writ). A trial court only abuses its discretion if it acts without

reference to any guiding rules or principles, that is, if its act is 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). A trial court also abuses its discretion by ruling

without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex.

2012). And a trial court abuses its discretion if it fails to analyze the law correctly or

misapplies the law to established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

       Legal and factual sufficiency are relevant factors to consider whether an abuse

of discretion occurred. T.D.C., 91 S.W.3d at 872. In determining whether there has

been an abuse of discretion because the evidence is legally or factually insufficient to

support the trial court’s decision, we consider whether the court had sufficient

information upon which to exercise its discretion and whether it erred in its

application of that discretion. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort

Worth 2010, no pet.); In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005,

no pet.); T.D.C., 91 S.W.3d at 872. “The traditional sufficiency review comes into

play with regard to the first question. With regard to the second question, we

determine, based on the elicited evidence, whether the trial court made a reasonable

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decision.” Newell v. Newell, 349 S.W.3d 717, 721 (Tex. App.—Fort Worth 2011, no

pet.) (quoting W.M., 172 S.W.3d at 725).

II.    Applicable Law

       A court’s primary consideration in determining the issues of conservatorship,

possession, and access must always be the best interest of the child. Tex. Fam. Code

Ann. § 153.002 (West 2014); In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2007); Lenz v.

Lenz, 79 S.W.3d 10, 14 (Tex. 2002); Newell, 349 S.W.3d at 721. Texas courts have

applied what are commonly referred to as the Holley factors—a nonexhaustive list of

considerations for determining a child’s best interest. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976) (enumerating list of factors to ascertain best interest of child

in parental termination context); T.D.C., 91 S.W.3d at 873. The family code creates a

rebuttable presumption that the appointment of the child’s parents as joint managing

conservators is in the child’s best interest.      In re G.B., No. 09-15-00285-CV,

2016 WL 157842, at *4 (Tex. App.—Beaumont Jan. 14, 2016, no pet.) (mem. op.)

(citing Tex. Fam. Code Ann. § 153.131(b)). A party requesting to be appointed sole

managing conservator of a child has the burden to rebut the statutory presumption

that joint managing conservatorship would be in the best interest of the child. Hinkle

v. Hinkle, 223 S.W.3d 773, 779 (Tex. App.—Dallas 2007, no pet.).

III.   Application of the Law to the Facts

       The final divorce decree with its child-custody provisions was rendered

following a default-divorce hearing. At the hearing, Father testified that he was asking

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the court to appoint him as a joint managing conservator. The trial court named

Father and Mother as A.S.’s joint managing conservators and attached standard

possession orders. Although Father did not provide testimony specifically addressing

the Holley factors, it is Mother’s burden to rebut the statutory presumption that joint

managing conservatorship would be in the best interest of A.S. Because she has failed

to rebut this presumption, we hold that the trial court did not abuse its discretion in

naming Father and Mother joint managing conservators. See id. at 782–83 (affirming

award of joint managing conservators because mother failed to set forth sufficient

evidence to overcome statutory presumption that joint managing conservators are in

child’s best interest).

       We overrule Mother’s fourth issue.

                                   CONCLUSION

       Having held that the trial court had jurisdiction over the child-custody aspect of

the underlying divorce suit, that the trial court did not err by not declining to exercise

jurisdiction over the suit in favor of Minnesota as a more convenient forum, that the

trial court did not err by denying Mother’s motion for new trial, and that the trial

court did not abuse its discretion by appointing Father and Mother as joint managing

conservators and providing a standard possession order, we affirm.




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                                   /s/ Mark T. Pittman
                                   Mark T. Pittman
                                   Justice

Delivered: October 11, 2018




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