      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-00-00130-CV



                                     Melody Fickle, Appellant

                                                  v.

                                    Allen Lee Fickle, Appellee



  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
          NO. B-99-0296-F, HONORABLE CURT STEIB, JUDGE PRESIDING



               Melody Fickle (“Melody”) appeals the trial court’s final decree of divorce awarding

appellee, Allen Lee Fickle (“Allen”), the right to establish the primary residence of the couple’s only

child, Brianna Nicole Fickle (“Brianna”). Appellant contends that the trial court abused its discretion

in awarding Allen the right to determine Brianna’s primary residence. We will affirm the trial court’s

decree.


                                         BACKGROUND

               Melody and Allen married on May 29, 1993. Soon after, Melody joined the United

States Air Force and the couple moved to Goodfellow Air Force Base in San Angelo, Texas. On

December 19, 1994, their daughter Brianna was born. Brianna was eventually diagnosed as a “special

needs” child because of speech and emotional development problems. Melody became dissatisfied

with her family’s situation at Goodfellow and subsequently requested a tour of duty overseas with

the hope of later obtaining a stateside assignment at a different location. Melody consequently
performed a tour of duty in Korea for one year—from March 1998 through March 1999. Before

leaving for Korea, Melody was Brianna’s primary caregiver but Allen shared the child-rearing

responsibilities. After Melody left for her tour of duty, Allen assumed the role of exclusive caregiver

for Brianna.

               Melody returned to San Angelo in March 1999 and filed for divorce shortly thereafter.

In May 1999, the trial court appointed Melody and Allen joint temporary managing conservators,

whereby Brianna moved back and forth between them on a monthly basis. In August 1999, the

parties waived a jury trial and the trial court heard evidence on the merits. In its final decree of

divorce signed November 1, 1999, the court appointed Melody and Allen joint managing conservators

of Brianna. As one of Allen’s rights and duties, the trial court gave him the authority to establish

Brianna’s primary residence. Melody now appeals the trial court’s decree, complaining only of this

ruling.


                                           DISCUSSION

               Melody does not contest the appointment of the parents as joint managing

conservators. Thus, she acknowledges that either Allen or Melody must have the responsibility of

establishing their daughter’s primary residence and that the trial court could properly make this

decision. She asserts, however, that the trial court abused its discretion by relying on impermissible

factors in awarding Allen the right to establish Brianna’s primary residence. In particular, Melody

contends that the trial court violated the Fourteenth Amendment of the United States Constitution

and section 153.003 of the Texas Family Code, which prohibits discrimination on the basis of sex or

marital status in determining conservatorship of a child. See U.S. Const. amend. XIV; Tex. Fam.

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Code Ann. § 153.002 (West 1996). Melody further contends that the trial court abused its discretion

because the evidence presented showed that awarding custody to Allen “was clearly not in the best

interests of Brianna Fickle.”

                Although Melody argues two separate points of error, both of Melody’s arguments

are subsumed by the allegation that the trial court abused its discretion when it awarded Allen the

right to determine Brianna’s primary residence. In a review applying an abuse of discretion standard,

insufficiency of the evidence is not an independent ground of complaint; instead, the appellate court

considers the sufficiency of the evidence supporting the ruling as one relevant factor in assessing

whether the trial court abused its discretion.         In re Driver, 895 S.W.2d 875, 877 (Tex.

App.—Texarkana 1995, no writ); see also Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991).

                The trial court is given wide latitude in determining the best interest of a minor child.

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The decision concerning conservatorship

of a child is addressed to the sound discretion of the trial court when it sits as trier of fact. Jeffers

v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ). The appellate court will

not disturb the trial court’s order concerning a joint managing conservatorship unless the trial court

clearly abused its discretion. Gillespie, 644 S.W.2d at 451. We afford this deference to the trial

court because it is in the best position to observe the demeanor and personalities of the witnesses, and

can “feel the forces, powers, and influences that cannot be discerned by merely reading the record.”

Id. Thus, we will not hold that the court abused its discretion as long as the record contains some




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evidence of a substantive and probative character to support the trial court’s decision. Valdez v.

Valdez, 930 S.W.2d 725, 731 (Tex. App.—Houston [1st Dist.] 1996, no writ).

               Melody requested that the trial court make findings of fact and conclusions of law.

See Tex. R. Civ. P. 296. It did so. The trial court concluded that, “[b]ased on section 153.002 of

the Family Code, the best interests 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.” See Tex.

Fam. Code Ann. § 153.002 (West 1996). The court found as a matter of fact, “The best interests of

the child dictate that the parents be appointed joint managing conservators, but that the father should

have the exclusive right to determine the primary residence of the child.”

               Melody presents no support for her bald assertion that the trial court violated section

153.003 of the Texas Family Code and the Fourteenth Amendment of the United States Constitution.

She directs us to no proof in the record in support of these contentions. Furthermore, the record

does not indicate that the trial court made its determination on any one factor, impermissible or

otherwise. Both parties testified fully concerning the issue, along with other witnesses. The record

contains evidence tending to support the trial court’s decision that it was in Brianna’s best interest

for Allen to determine her primary residence. While Allen was not Brianna’s primary caregiver before

Melody left for Korea, he assumed that position after Melody left. Allen served as Brianna’s sole

caregiver from March 1998 through March 1999 and as her joint temporary managing conservator

from May 1999 to November 1999. Allen testified that Brianna is his “number one priority” and that

he believes he “can provide that stability that she needs and that continuity and discipline and

structure.” Melody’s testimony conceded that Allen possesses adequate parenting skills and that



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Melody would not have left for Korea had she not believed that Allen could handle the responsibility

of caring for Brianna. Another witness testified that Brianna’s behavior problems improved during

the year Allen had primary responsibility for her.

               Melody points to no evidence that the trial court considered impermissible factors in

reaching its decision. Furthermore, the record contains evidence of a substantive and probative

character tending to support the trial court’s decision. See Valdez, 930 S.W.2d at 731. Therefore,

we cannot say that the trial court abused its discretion in granting Allen the right to determine the

primary residence of Brianna. Melody’s points of error are accordingly overruled.


                                         CONCLUSION

               Having overruled appellant’s points of error, we affirm the trial court’s decree

awarding appellee the right to establish the child’s primary residence.




                                              Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Jones and Yeakel

Affirmed

Filed: November 30, 2000

Do Not Publish




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