                                   NO. 07-11-00128-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL E

                                   DECEMBER 14, 2011


                         IN THE INTEREST OF C.P.L., A CHILD


             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

            NO. 77,573-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.


                                MEMORANDUM OPINION

       Father and mother each moved the trial court to modify portions of their divorce

decree concerning conservatorship of their daughter, C.P.L.           Mother now appeals

certain rulings of the trial court in that regard. We will modify the trial court’s order and,

as modified, affirm.


                                        Background


       C.P.L. was born in May 2008, and about six months later father and mother

married. The marriage ended in divorce. The trial court signed a decree approved in

form and substance by father and mother in September 2009. Among its terms, the

decree appointed father and mother joint managing conservators of C.P.L. It granted
mother the exclusive right to designate the primary residence of C.P.L. “within 100 miles

of Potter/Randall County, Texas.”


         In September 2010, mother filed a motion to modify the decree. She sought

removal of the geographic restriction and a custody arrangement splitting possession of

C.P.L. between father and mother in two week increments until the child reached

“school age.” In a supporting affidavit, mother expressed the desire to move to Tulsa,

Oklahoma, and take advantage of employment opportunities beneficial to her and

C.P.L.


         Father filed a counter-motion to modify the decree. While alleging no change of

circumstances, he sought the right to designate the primary residence of C.P.L. should

mother desire to move from Potter and Randall counties.


         Trial of the motions was to the bench in November 2010. After hearing the

testimony of four witnesses, two for mother and two for father, the trial court rendered

judgment denying mother’s request to remove a geographic restriction. It appointed

father and mother joint managing conservators and ordered equal possession until

C.P.L. reaches kindergarten age or November 3, 2012, whichever occurs first. Effective

on the first of those events, father was appointed the conservator with the exclusive

right to designate C.P.L.’s primary residence. Finally, the court ordered that beginning

with 2011, “and for all subsequent years,” father shall have the exclusive right to the

federal income tax child dependency exemption. This appeal followed.




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                                         Analysis


       Through three issues, mother argues the trial court abused its discretion in

denying her request to lift the geographic restriction, prospectively granting father the

exclusive right to designate the primary residence of C.P.L., and awarding father the

federal income tax dependency exemption. Mother’s issues implicate the sufficiency of

evidence supporting the trial court’s implicit findings that it was in the best interest of

C.P.L. to retain a geographic restriction, to appoint father the conservator with the

exclusive right to designate the primary residence, and to grant father the dependency

exemption.


Standard of Review


       We review the trial court’s modification of a divorce decree under the abuse of

discretion standard. In re Marriage of Swim, 291 S.W.3d 500, 504 (Tex.App.--Amarillo

2009, no pet.). Under this standard, we may not interfere with the trial court’s decision

so long as it is supported by evidence of a substantive and probative character and the

ruling comports with the law. Id. Under the abuse of discretion standard we apply, legal

and factual sufficiency of the evidence are not independent grounds of error, but if

implicated are relevant factors for determining whether the trial court abused its

discretion. Id.; Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.App.--Houston [14th Dist.]

2007, no pet.); Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.--Dallas 2004, no pet.);

see Zeptner v. Zeptner, 111 S.W.3d 727, 734 (Tex.App.--Fort Worth 2003, no pet.)

(division of community property). See also Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991).

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      Here, findings of fact and conclusions of law were neither requested nor filed. In

the absence of express findings, we imply all necessary findings in support of the trial

court’s judgment. In re B.N.B., 246 S.W.3d 403, 406 (Tex.App.--Dallas 2008, no pet.)

(citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)).


Mother’s First and Second Issues


      Because of their interrelation, we will jointly discuss mother’s first and second

issues. Mother testified she wanted a job that would make use of her math degree. At

the time of divorce, she was a high school math tutor and special education assistant.

She resigned the position in May 2010 because of stress. She also did not wish to

become a teacher. Mother additionally held an outside tutoring position which ended

when the program with which she was affiliated ceased operations in the Texas

Panhandle.


      To locate employment, mother posted a resume through several internet services

and had “a few” job interviews. Her job search within 100 miles of Amarillo was minimal

although she agreed she looked to the extent she was able. During this time, mother

worked at a local Olive Garden Restaurant and for Avon. She received food stamps

and WIC (Women, Infants, and Children Program) assistance. About six months after

the divorce mother told father she wanted to move from the Amarillo area.           She

ultimately received a job offer as a teller at a Tulsa bank. She also found a position in

Tulsa with the tutoring program with which she formerly was associated.


      In October 2009, mother began dating Scott Middleton. He was an Olive Garden

employee whom she met about four years before her divorce. Middleton was twenty
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years her senior and obtained a divorce during the summer of 2009. Before mother’s

divorce, Olive Garden transferred Middleton to Tulsa where he was general manager.

Mother expanded the range of her job search to Tulsa in May 2010. Her rationale was

to be near Middleton and to provide for her needs and those of C.P.L.


       Mother believed moving to Tulsa would be in C.P.L.’s best interest as the

potential existed for tripling her pay and providing more for her daughter. On cross-

examination, mother acknowledged the associated travel expenses of living in Tulsa

might diminish any extra pay she earned.              And she could not say whether the

detriments to C.P.L. of moving to Tulsa would outweigh any benefits. While unwilling to

allow father the right to designate C.P.L.’s primary residence, mother testified the child’s

relationship with father was very important and she was “willing to do as much as [she

could] to make it stay the way that it is or more.”


       Several members of mother’s family live in Amarillo, including her parents, her

brother, her grandmother, and a niece. The niece is the same age as C.P.L. and they

have a close relationship. C.P.L. sees her maternal grandparents three or four times a

week. Mother acknowledged father also had family living in Amarillo and she believed

C.P.L. saw them on a regular basis.


       Janet, appellant’s mother, testified she supported her daughter’s move to Tulsa

even though she would lose “almost daily” contact with C.P.L. According to Janet, the

move would allow mother to make a good living to support C.P.L. She agreed her

daughter struggled over the preceding year. To help facilitate her daughter’s move to

Tulsa, Janet indicated she could assist with transportation and caring for C.P.L. as well

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as seeing that C.P.L. has regular contact with father. On cross-examination, Janet

agreed if C.P.L. moves to Tulsa father will not be able to have the same relationship

with her.


       Father testified he was a customer service representative at a pharmacy but also

studying to become a wind turbine technician. He believed his income was less than

what mother earned at Olive Garden. Father has relatives in Amarillo including his

parents, his grandfather, three aunts, and a three-year-old niece. The niece and C.P.L.

play together. C.P.L. sees her paternal grandparents two or three times a week. Father

and C.P.L. attend church.


       Steve, the paternal grandfather of C.P.L., is a coach at the high school where

mother was once employed. He assisted her in obtaining the position. In his opinion,

opportunities for private math tutors exist in Amarillo.     Steve testified of a good

relationship with C.P.L. They visit each Wednesday and every other weekend. He

stated he would be “devastated” if C.P.L. moves to Tulsa. C.P.L. plays with Steve’s

other granddaughter, usually on Wednesdays. On cross-examination, Steve expressed

the opinion that allowing mother to take C.P.L. to Tulsa would begin “slowly squeez[ing]”

the paternal grandparents out of C.P.L.’s life.


       Substantive Law


       A party seeking modification of an order establishing conservatorship,

possession, and access to a child must show a material and substantial change in the

circumstances, and the modification would be in the best interest of the child. Tex.

Fam. Code Ann. § 156.101(a) (West Supp. 2011). In the present case, mother does not
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dispute the occurrence of a material and substantial change of circumstances. The

parties’ disagreement concerns the best interest of C.P.L.


         The best interest of the child is the court’s primary consideration in determining

issues of conservatorship and possession of and access to the child. Tex. Fam. Code

Ann. § 153.002 (West 2008). The public policy of this state is (1) to assure that children

have frequent and continuing contact with parents who have shown the ability to act in

the best interest of the child, (2) to provide a safe, stable, and nonviolent environment

for the child, and (3) to encourage parents to share in the rights and duties of raising

their child after dissolution of the marriage. Tex. Fam. Code Ann. § 153.001(a) (West

2008).


         These policy concerns weigh heavily in assessing whether to modify geographic

restrictions placed on the child’s residence.      In re C.M.G., 339 S.W.3d 317, 320

(Tex.App.--Amarillo 2011, no pet.). In addressing these concerns, the trial court may

consider factors such as (1) the child’s relationship with extended family, (2) the

presence of friends, (3) the presence of a stable and supportive environment for the

child, (4) the custodial parent’s improved financial situation, (5) the positive impact on

the custodial parent’s emotional and mental state and its beneficial impact, if any, on the

child, (6) the noncustodial parent’s right to have regular and meaningful contact with the

child, (7) the ability of the noncustodial parent to relocate, (8) the adaptability of the

noncustodial parent’s work schedule to the child, and (9) the health, education, and

leisure opportunities available to the child. Id. (citing Lenz v. Lenz, 79 S.W.3d 10, 15-16

(Tex. 2002); In re Z.N.H., 280 S.W.3d 481, 486-87 (Tex.App.--Eastland 2009, no pet.)).

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       Unless it would not be in the best interest of the child, the trial court “shall”

appoint a parent as sole managing conservator, or both parents as joint managing

conservators of the child.    Tex. Fam. Code Ann. § 153.131(a) (West 2008).             A

rebuttable presumption exists that the appointment of the parents as joint managing

conservators is in the best interest of the child. Id. § 153.131(b). In rendering an order

appointing joint managing conservators, the court shall designate the conservator who

has the exclusive right to determine the primary residence of the child. Tex. Fam. Code

Ann. § 153.134(b)(1) (West 2008).


       Application

       At the time of divorce, Mother agreed with the geographic limitation of the decree

although she was then actively seeking other employment without success and within

two months began dating a man living in Tulsa. Within six months, she expressed

dissatisfaction with her agreement and roughly a year after her divorce sought to shed

this restraint. Mother wanted to be near her boyfriend in Tulsa and found entry level

work in that city paying significantly more than her Amarillo restaurant job. While the

trial court could consider the potential of improved financial circumstances, this did not

control its decision.   At the time of the modification hearing, mother seemed to be

testing the water concerning her anticipated move. So she was not able to present

evidence about what life in Tulsa for C.P.L. would be like. Factors such as housing for

mother and daughter, their daily routine, daycare, healthcare, friendship and social

opportunities, church, regular and meaningful contacts between father and C.P.L., and

handling a regular 367-mile trip to Amarillo, were not addressed. On the other hand, the

judge heard of a fairly consistent environment for C.P.L. in Amarillo.         That is, a
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significant Amarillo family network on both sides including playmates, four loving

grandparents, church attendance, a new rent house for father owned by his parents,

and an established babysitter.


       Given mother’s intention to move to Tulsa with the accompanying uncertainty of

its consequences for C.P.L., we are not able to say the trial court abused its discretion

by denying mother’s request to dissolve the geographic restriction and granting father

the exclusive right to designate the primary residence of C.P.L., following the period of

equal possession. We overrule mother’s first and second issues.


Mother’s Third Issue


       By her third issue, mother contends the trial court abused its discretion by

awarding father the federal income tax dependency exemption.              She grounds this

complaint in part on an absence of sufficient evidence.


       Under the Internal Revenue Code, a taxpayer is permitted an exemption for

dependents in the computation of taxable income. 26 U.S.C.A. § 151(a) & (c) (West

2011). The term “dependent” includes a “qualifying child.” 26 U.S.C.A. § 152(a)(1)

(West 2011).     A child of a taxpayer may be a qualifying child.            26 U.S.C.A. §

152(c)(1)(A) & (2)(A) (West 2011). The parent who has a qualifying child for the greater

part of the year is the “custodial parent” under the Internal Revenue Code and is entitled

to the exemption. 26 U.S.C.A. § 152(a), (c)(1)(B), (e)(1) (West 2011). When parents

claiming a qualifying child do not file a joint return, the child is treated as the qualifying

child of the parent with whom the child resided for the longest period of time during the

taxable year or, if the child resides with each parent for the same amount of time during
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the taxable year, the parent with the highest adjusted gross income. 26 U.S.C.A. §

152(c)(4)(A) (West 2011). The noncustodial parent may take the exemption for the

qualifying child if the custodial parent signs a written declaration that he or she will not

claim the child as a dependent and the noncustodial parent attaches the written

declaration to his or her tax return. 26 U.S.C.A. § 152(e)(2) (West 2011). While a trial

court has considerable discretion in granting the dependent child exemption, its ruling

must conform to applicable federal law.        See In re J.G.Z., 963 S.W.2d 144, 150

(Tex.App.--Texarkana 1998, no pet.) (issue of income tax exemptions preempts state

law and must be determined according to federal statutes, rules, and regulations).


       We conclude no evidence supports the trial court’s implicit finding of facts

authorizing father’s entitlement to the exclusive right to claim the federal dependency

exemption. Accordingly, the trial court abused its discretion by awarding the father the

exemption as it did. We sustain mother’s third issue.


                                        Conclusion


       We reform the modification order of January 19, 2011, by striking the portion

awarding father the child dependency income tax exemption for taxable year 2011 “and

all subsequent years.” We affirm the judgment of the trial court as reformed.




                                                        James T. Campbell
                                                             Justice




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