                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

    IN THE INTEREST OF
                                                      §                        No. 08-18-00014-CV
    A.C.M., a Child.
                                                      §                           Appeal from the

                                                      §                         383rd District Court

                                                      §                     of El Paso County, Texas

                                                                               (TC# 2008AG5651)

                                                  OPINION

          This is an appeal from an order in a suit to modify the parent-child relationship after a de

novo hearing. Appellant Armando Montez (“Father”) appeals from that order insofar as it permits

Appellee Melissa Soliz (“Mother”) to designate the primary residence of the couple’s minor son

(“A.C.M.”) without any geographic restriction. Father contends that the evidence is legally and

factually insufficient to support various facts implicitly found by the trial court and that those

erroneous findings resulted in an order that is not in the best interest of the child. We affirm.

                                                BACKGROUND

          In July 2014, Father petitioned to modify a child support review order rendered on August

25, 2008.1 As pertinent to this appeal, Father requested that the prior order be modified to appoint



1
  This order is not in our record but the parties do not dispute that Mother was given the exclusive right to designate
the child’s primary residence without any geographic restriction and Father was granted possession of and access to
the child according to the standard possession order.
him as the person with the right to designate the primary residence of the child, A.C.M., and that

the residence of the child be restricted to El Paso County, Texas. On August 28, 2014, the parties

entered agreed temporary orders designating Mother as the person with the right to determine the

child’s primary residence, but restricting such residence to El Paso County, Texas. In addition,

Father was granted possession of and access to the child according to the extended standard

possession order. Mother was not represented by counsel at the time and testified that she felt

pressured into signing the agreed order.

       On September 15, 2016, an associate judge signed findings and recommendations

including an assessment that it is in the best interest of the child to restrict his primary residence

to El Paso County, Texas, and to grant Father possession of and access to the child according to

the extended standard possession order. Mother then requested a de novo hearing in the district

court. After conducting an evidentiary hearing (as discussed in further detail below), the district

court ordered, among other things, that “[t]here will be no geographic restriction on the child’s

residence to El Paso County” and that “[Mother] shall be permitted to relocate a year from the date

of this ruling.” The court further ordered that Father “shall have possession of and access to the

child according to the Standard Possession Order as set forth in the Child Support Review Order

from August 22, 2008.”

       Father filed a request for findings of fact and conclusions of law, but no such findings and

conclusions were timely filed and Father did not file a notice of past due findings and conclusions.

See TEX. R. CIV. P. 296, 297. Father now appeals from that portion of the court’s order permitting

Mother to designate the child’s primary residence without geographic restriction.

                                              ISSUES

       Father raises six issues challenging the legal and factual sufficiency of the evidence to

support the trial court’s implicit findings that (1) Father had not consistently exercised his extended
                                                      2
visitation rights; (2) Father had never attended school hearings or conferences and rarely attended

the child’s doctor visits; and (3) Mother wanted to relocate to the Dallas/Fort Worth area for

financial and educational reasons. In a seventh issue, Father asserts that these erroneous findings

“cause[d] the court to deny Father’s request to impose a geographical restriction because it was in

the best interest of the child[.]”

                                     STANDARD OF REVIEW

        A trial court’s determination of what is in the best interest of the child “will be reversed

only when it appears from the record as a whole that the court has abused its discretion.” Gillespie

v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when it acts

arbitrarily or unreasonably, without reference to any guiding principles, or when it fails to correctly

analyze the law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985);

In re M.V., 583 S.W.3d 354, 360 (Tex. App.—El Paso 2019, no pet.).

        Determining whether the trial court abused its discretion involves a two-pronged inquiry:

(1) did the trial court have sufficient information upon which to exercise its discretion? and (2) did

the trial court err in its application of discretion? In re M.V., 583 S.W.3d at 361; In re T.M.P., 417

S.W.3d 557, 562 (Tex. App.—El Paso 2013, no pet.). In the absence of findings of fact and

conclusions of law, we imply all necessary findings of fact to support the trial court’s order. In re

M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d at 563. If, however, the appellate record

includes a reporter’s record, the trial court’s implied findings may be challenged for legal and

factual sufficiency. In re M.V., 583 S.W.3d at 361; In re T.M.P., 417 S.W.3d at 563. Such

sufficiency challenges are considered as factors relevant to whether the trial court abused its

discretion rather than independent grounds of error. In re M.V., 583 S.W.3d at 361; In re T.M.P.,

417 S.W.3d at 562.



                                                      3
       Whether there is legally sufficient evidence is determined by “view[ing] the evidence in

the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168

S.W.3d 802, 807 (Tex. 2005). “When reviewing the factual sufficiency of the evidence, we

consider and weigh all the evidence, and will set aside a finding only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.” In re M.V.,

583 S.W.3d at 361. If there is a conflict in the evidence, we must presume that the fact finder

resolved the inconsistency in favor of the order if a reasonable person could do so. Id. If there is

evidence of a substantive and probative character supporting the trial court’s decision, we cannot

conclude that the court abused its discretion in reaching that decision. Id.

                                          DISCUSSION

Modification of a geographic residency restriction

       A court may modify an order providing the terms and conditions of conservatorship if (1)

the modification would be in the best interest of the child and (2) the circumstances of the child, a

conservator, or other person affected by the order have materially and substantially changed since

the date of the rendition of the prior order. TEX. FAM. CODE ANN. § 156.101; see In re T.M.P.,

417 S.W.3d at 562. This appeal concerns only the “best interest of the child” prong of the analysis.

       Whether it is in a child’s best interest to modify a geographic residency restriction is

generally guided by the public policy considerations of “(1) assur[ing] that children will have

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

of the child; (2) provid[ing] a safe, stable, and nonviolent environment for the child; and (3)

encourag[ing] 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; Lenz v. Lenz, 79 S.W.3d

10, 14 (Tex. 2002).
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         The supreme court in Lenz identified several factors that bear on whether it is in a child’s

best interest to lift a geographic restriction to accommodate a parent’s desire to relocate. In re

M.V., 583 S.W.3d at 360 (citing Lenz, 79 S.W.3d at 15-18). Those factors include:

         (1) the parent’s good-faith reasons for the proposed move; (2) the effect the move
         would have on the economic, educational, health, and leisure opportunities for the
         custodial parent and the child; (3) the positive impact the move would have on the
         custodial parent’s emotional and mental state, with beneficial results to the child;
         (4) whether the move would improve the custodial parent’s financial situation and
         ability to provide a better standard of living for the child; (5) whether the child’s
         special needs or talents could be accommodated at the new location; (6) the child’s
         relationship with and presence of extended family and friends, and the effect the
         move would have on those relationships; (7) the effect the move would have on the
         noncustodial parent’s visitation and communication with the child, and his ability
         to maintain a full and continuous relationship with the child; (8) whether the
         noncustodial parent has the ability to relocate; and (9) whether a visitation schedule
         could be arranged that would allow the noncustodial parent to continue a
         meaningful relationship with the child following the move.

Id.2

         Father contends on appeal that the evidence is legally and factually insufficient to support

the trial court’s implied findings in three respects: (1) Father did not consistently exercise his

extended visitation rights; (2) Father did not attend the child’s school conferences and doctor’s

appointments; and (3) Mother wants to relocate for financial and educational reasons. We will

address each in turn.

Evidence concerning Father’s exercise of extended visitation rights

         By order dated August 25, 2008, Father was granted visitation according to the standard

possession order. See TEX. FAM. CODE ANN. § 153.312. Pursuant to an agreed order dated August

28, 2014, Father was granted visitation according to the extended standard possession order. As a




2
  Father urges this Court to also apply factors identified by the supreme court in Holley v. Adams, 544 S.W.2d 367
(Tex. 1976), as bearing on the best interest of the child. Of the nine enumerated factors, our record contains evidence
pertaining to only three: the child’s needs, a parent’s acts or omissions, and any excuse for those acts or omissions.
Id. at 372. Those factors overlap with the Lenz factors and are addressed in our discussion under Lenz.

                                                               5
result, during the school year, Father was entitled to possession of A.C.M. on the first, third, and

fifth weekends of every month (from Thursday after school until Monday morning) and Thursday

after school until Friday morning on all other weeks. In addition, he was entitled to thirty

consecutive days with the child during the summer.

       Mother testified that Father did not take the child for weekends, vacations, or the summer,

and did not exercise his extended possession rights until directed to do so by an associate judge in

2016. She stated that Father would see the child occasionally but did not follow the terms of the

possession order. Mother acknowledged that, since being chastised by the associate judge, Father

had exercised his extended possession rights without any problems. She also acknowledged that,

since that time, she had sometimes asked Father to forego his extended time with the child to

accommodate her and that he acquiesced to those requests. She noted, though, that she did not

make such requests prior to the time Father was lectured by the associate judge because he was

not exercising his visitation rights anyway and had not been for a long time.

       Father, on the other hand, testified that he did exercise his visitation rights under the August

2014 agreed order except for a brief period in 2015. In November 2015, Mother filed a petition

for a protective order on A.C.M.’s behalf, alleging that Father had struck the child with a belt.

Father denied ever striking the child but testified that he did not exercise his possession rights

during the pendency of the protective order proceedings because he did not want to be in trouble

with the law.

       Once the petition for protective order was denied, Father tried to exercise his rights again

but A.C.M. did not want to go with him. Father testified that he would not force the child to go

with him until he was rebuked by the associate judge for not exercising his visitation rights. After

that, Father insisted that A.C.M. go with him during his possessory periods and the relationship



                                                      6
between Father and the child quickly returned to normal. Father stated that he has not missed a

visit with his son since that time, except when he has accommodated Mother’s requests to adjust

the possession schedule. He also stated that he did not exercise his right to have A.C.M. for thirty

consecutive days in the summer because he and Mother agreed to maintain the regular schedule

so that neither of them had to go for thirty days without seeing the boy.

       The evidence concerning Father’s exercise of his rights to possession of A.C.M. is

conflicting. We recognize that “[t]he trial court is in the best position to observe the witnesses and

their demeanor[.]” In re T.M.P., 417 S.W.3d at 563; see In re M.V., 583 S.W.3d at 361. For this

reason, we will not disturb the credibility determinations made by the trial court but, rather, will

presume that the court resolved any conflict in favor of its ruling. In re N.P.M., 509 S.W.3d 560,

565 (Tex. App.—El Paso 2016, no pet.); see In re M.V., 583 S.W.3d at 361.

       The trial court here noted the conflicts in the witnesses’ testimony and described Father’s

visitation history as “sketchy at best[.]” Crediting Mother’s testimony, as the trial court was

entitled to do, there is legally and factually sufficient evidence to support an implied finding that,

even apart from those instances in which Father accommodated Mother’s requests to forego

visitation, Father had not consistently exercised his visitation rights. Issues One and Two are

overruled.

Evidence concerning Father’s attendance at school conferences and medical appointments

       Both parents testified that A.C.M. has had behavioral issues at school. Mother testified

that Father has never attended a school hearing or conference to address those issues. Father

testified that the meetings were arranged between Mother and A.C.M.’s teacher, and that he would

have attended if he had been invited. As for medical appointments, Mother testified that she has




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taken the child to every doctor’s appointment. Father testified that he has taken the boy to the

doctor and the dentist a few times.

         Again, it was within the province of the trial court to resolve the conflicts in the testimony.

See In re N.P.M., 509 S.W.3d at 565. Giving credence to Mother’s testimony, there is legally and

factually sufficient evidence to support an implied finding that Father rarely, if ever, attended

A.C.M.’s school conferences and medical appointments. Issues Three and Four are overruled.

Evidence concerning Mother’s reasons for relocating

         Mother testified that she would like to relocate with the child to the Dallas/Fort Worth area

for three reasons. First, Mother’s mother, sister, brother-in-law, and nieces live in that area, and

another sister is planning to move there. Mother’s mother works nights, so she would be available

to keep A.C.M. after school and help him with his homework. A.C.M. could thus be with family

instead of being in daycare. At the time of the hearing, A.C.M. was at daycare from 2:45, when

school let out, until 5:45, when Mother picked him up after work. There is also evidence that

Mother’s fiancé sometimes picks up A.C.M. after he leaves work at 4.

         Mother’s second reason for relocating is financial. She testified that she makes $11 per

hour as a certified medical assistant, but could make $19 per hour with the same company by

transferring to Dallas. Mother’s fiancé testified that there are also better job opportunities for him

in the Fort Worth area than in El Paso.

         Mother noted that one reason she needs to improve her earnings is because Father has not

been paying court-ordered child support.3 Father admitted that he has not paid the proper amount




3
 Mother filed a counterpetition for modification, seeking to increase Father’s child support obligation. Father did not
appeal the ruling granting that increase.

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of child support but blamed the deficiency on a delay in paperwork to deduct child support from

his paycheck.

        Finally, Mother testified that she wants to relocate so that she can obtain a nursing degree.

While she acknowledged that there is a nursing school in El Paso, she explained that, in Dallas/Fort

Worth, she would have the support of family to help with A.C.M. so she could work and go to

school part-time.

        The evidence is legally and factually sufficient to support an implied finding that Mother

desires to relocate for financial and educational reasons, as well as to have the support of her

immediate family. Issues Five and Six are overruled.

Best interest of the child

        Having disposed of Father’s specific sufficiency challenges, we must still address the

ultimate issue of whether the trial court abused its discretion by concluding that it is in the best

interest of the child to lift the geographic restriction on his primary residence. On this issue, we

revisit the factors identified by the supreme court in Lenz. See In re M.V., 583 S.W.3d at 360

(citing Lenz, 79 S.W.3d at 15-18).

        As discussed above, Mother presented evidence that she wants to relocate to Dallas/Fort

Worth because she could earn more money and she would have support from her immediate family

which would allow her to pursue a nursing degree. While she did not testify to a firm job offer

awaiting her at the end of the school year, she did state that she could transfer with her present

employer at any time. This testimony supports lifting the geographic restriction under the first,

second, third, fourth, and sixth Lenz factors. See id. (“(1) the parent’s good-faith reasons for the

proposed move; (2) the effect the move would have on the economic, educational, health, and

leisure opportunities for the custodial parent and the child; (3) the positive impact the move would



                                                     9
have on the custodial parent’s emotional and mental state, with beneficial results to the child; (4)

whether the move would improve the custodial parent’s financial situation and ability to provide

a better standard of living for the child; . . . [and] (6) the child’s relationship with and presence of

extended family and friends, and the effect the move would have on those relationships”).

        The fifth Lenz factor is whether the child’s special needs or talents could be accommodated

at the new location. Id. A.C.M. has problems reading but is an accomplished baseball player.

Mother’s fiancé testified that he believes there are better schools and more competitive baseball

teams in Dallas/Fort Worth than in El Paso, but he did not offer any factual basis for those beliefs.

Neither Mother nor Father opined on the issue. We conclude that this factor is neutral in

determining whether relocation is in the best interest of the child.

        The remaining three Lenz factors concern the impact of relocation on the noncustodial

parent’s contact with the child. See id. (“(7) the effect the move would have on the noncustodial

parent’s visitation and communication with the child, and his ability to maintain a full and

continuous relationship with the child; (8) whether the noncustodial parent has the ability to

relocate; and (9) whether a visitation schedule could be arranged that would allow the noncustodial

parent to continue a meaningful relationship with the child following the move”).

        Concerning the eighth Lenz factor, Mother testified that, during the course of their

relationship, Father and Mother had planned to move to Dallas/Fort Worth as a couple. This

indicates that Father, at least at one time, was willing to relocate. But there is no evidence of

Father’s present ability to relocate. We therefore conclude that the eighth Lenz factor is neutral in

our analysis.

        As to Father’s ability to maintain a continuous and meaningful relationship with the child,

we note that both parents testified that they have been cooperative with one another and that both



                                                      10
are primarily interested in what is best for their son. Mother testified that, if she relocates to

Dallas/Fort Worth, Father could see A.C.M. during holidays and summers. She stated that she

would offer extra visitation during the summers and would help get the child to El Paso. Mother

also testified that she does not want to take the child away from his father, she wants Father to

have visitation, and she is not trying to hurt Father because she “wouldn’t want that.”4 The record

does not demonstrate any reason why A.C.M.’s parents would not continue to cooperate after

relocation to ensure that the child has a meaningful relationship with both.

         In addition to evidence indicating that Father will have the ability to maintain a meaningful

relationship with A.C.M., we must also consider the evidence that Father has not consistently

exercised his visitation and possession rights in the past. While Father was more diligent about

seeing his son after being chastised by the associate judge, the fact remains that his visitation

history is, as described by the trial court, “sketchy at best[.]” The trial court was entitled to take

this history into account when weighing the impact on Father of allowing Mother to relocate with

the child to Dallas/Fort Worth. The evidence, as a whole, supports the conclusion that Father will

be able to maintain a meaningful relationship with A.C.M. if he so desires. The seventh and ninth

Lenz factors thus support the court’s decision to lift the geographic restriction.

         Each of the applicable Lenz factors supports the trial court’s conclusion that lifting the

geographic restriction on Mother’s ability to designate A.C.M.’s primary residence is in the best

interest of the child. The court therefore did not act arbitrarily, unreasonably, or without reference




4
  Mother did at one point move to restrict Father’s visitation and asked that he be given a hair follicle test to detect
drug use. Mother testified that she was concerned for her son because Father had used marijuana daily during their
relationship. Father admitted to using marijuana but testified that he last used that drug in 2014. Father passed the
hair follicle test and the request to restrict his visitation was denied.

                                                               11
to any guiding principles. Downer, 701 S.W.2d at 241-42; In re M.V., 583 S.W.3d at 360. In

short, the court did not abuse its discretion.

          As a final matter, we address Father’s assertion that an abuse of discretion is evidenced by

the trial court’s comment that Mother did not present a “compelling” case for relocation. Father

contends that this comment demonstrates the court’s belief that the evidence justifying relocation

is legally and factually insufficient. This is not a fair reading of either the court’s comment or its

import.

          After the close of evidence, the trial court, which was conducting a de novo hearing

following a ruling by an associate judge imposing the geographic restriction, inquired whether the

circumstances presented to the associate judge differed from those that were presented at the de

novo hearing. In fact, the circumstances were different. At the time of the hearing before the

associate judge, Mother was contemplating an immediate move because both she and her fiancé

had job offers in Dallas/Fort Worth. By the time of the de novo hearing, the school year was about

to begin and Mother decided that it would be best not to move A.C.M. until the end of the school

year. After hearing this explanation, the trial court merely noted that, at the time of the hearing

before the associate judge, the request to lift the geographic restriction was “even more

compelling” and, at the time of the de novo hearing, “it isn’t as compelling.”

          We do not read the record as supporting Father’s assertion that the trial court believed that

Mother had not established legitimate reasons for seeking to relocate with A.C.M. Rather, the

record reflects that the court simply determined that there was no immediate time pressure to

decide whether relocation would be permitted because the desired move to Dallas/Fort Worth was

not imminent. This is evidenced by the court’s proposal to defer ruling on the request to lift the

geographic restriction until a time closer to the end of the school year. When Father pressed for



                                                       12
an immediate ruling, the court ruled that the geographic restriction would be lifted and that Mother

would be permitted to relocate in a year. For all of the reasons discussed above, that ruling is

supported by legally and factually sufficient evidence and does not constitute an abuse of

discretion. Issue Seven is overruled.

                                          CONCLUSION

       The record establishes that the trial court had sufficient information concerning the reasons

for Mother’s desire to relocate and the impact relocation would have on her, the child, and Father

to exercise its discretion. See In re T.M.P., 417 S.W.3d at 562. The record further establishes that,

considering the benefits to Mother and, ultimately, to A.C.M., as well as any impairment of

Father’s contact with the child, the trial court did not err in its application of discretion. See id.

The order lifting the geographic restriction on Mother’s ability to designate A.C.M.’s primary

residence is affirmed.


                                               GINA M. PALAFOX, Justice
December 23, 2019

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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