

NO. 07-10-0110-CV
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
MARCH 29, 2011
_____________________________
 
In the
Interest of C. M. G., A Child 
_____________________________
 
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY;
 
NO. D-1-FM-02-005140; HONORABLE RHONDA HURLEY,
PRESIDING
_____________________________
 
Opinion
_____________________________
 
 
Before QUINN, C.J., and HANCOCK  and PIRTLE,
JJ.
            Kristen Walsh Pfeiffer appeals from
an order of the trial court denying her request to modify the parent/child
relationship with her daughter C.M.G.  She
sought to modify  the geographic
restriction requiring the child to live within Travis County or counties
contiguous to it and permit her to move the child to Massachusetts to
accommodate her current husband’s employment. 
The trial court denied both her request and motion for new trial founded
upon newly discovered evidence.  Kristen
considered those decisions to be instances of abused discretion and so argues
via four issues.  We disagree.  
            Background
            Kristen and Francis (Frank) Gavin
were divorced in 2003 and had only one child, C.M.G., during the marriage.  The youth was almost two years old at the
time of the divorce.  Both Kristen and
Frank remarried and had children with their new spouses.  It is unquestioned that both parents love
C.M.G. and, though Kristen was granted primary custody in the divorce decree
and the right to designate the child’s primary residence, the parties
cooperated in caring for the child until 2009. 
During that year, Kristen’s husband, Ken Pfeiffer, lost his job in
Austin, searched for employment for three months, and eventually accepted a
postion in Massachusetts.  There he now
resides and returns periodically to Austin to visit his family.
            Applicable Authority
            We review the trial court’s order
under the standard of abused discretion. 
In
re C.R.O., 96 S.W.3d
442, 446 (Tex. App.–Amarillo 2002, pet. denied).  Per that standard, we cannot interfere with
the decision so long as some evidence of a substantive and probative character
supports it and the ruling comports with the law.  Id. at 447.  Given this standard of review, it is of
little import, in the first instance, that evidence appeared of record
supporting a different decision.  Nor can
we simply accept the evidence iterated by appellant and use it as basis for
changing the trial court’s ruling. 
Rather, the onus lies with the party attacking the decision to establish
that the decision was arbitrary, unreasonable, or a deviation from guiding
rules and principles.  Only then can it
be said that discretion was abused. 
            Moreover, when, as here, the dispute
actually concerns the tenor of the evidence presented to the trial court, appellant’s
interests are best served by explaining to us why no evidence supported the
decision or why any evidence that could be said to support it lacks credence or
probative value.  Doing that not only
assists the reviewing court in addressing the task before it but also evinces
true recognition of and compliance with the standard of review. 
            Next, one attempting to modify an
order establishing conservatorship, possession, and access to a child must show
that 1) there has been a material and substantial change in the circumstances,
and 2) the modification would be in the best interest of the child.  Tex. Fam.
Code Ann. §156.101(a) (Vernon  Supp. 2010).  Here, the child’s father did not dispute that
a material and substantial change of circumstances occurred.  Rather, the dispute concerned the child’s
best interest.  
            With regard to the child’s interest,
we note that 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) 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 marriage has been dissolved.  Id. §153.001(a) (Vernon 2008).  Such policy concerns weigh heavily in
assessing whether to modify geographic restrictions placed on the child’s
residence.  And, in assuring that those
concerns are appropriately addressed, the trial court may consider numerous
indicia 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 ability of the noncustodial parent to
adapt his work schedule to the child, and 9) the health, education, and leisure
opportunities available to the child.  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.).   
            Application of Authority
            We readily acknowledge the presence
of evidence indicating that Kristen’s lot would improve if she was allowed to
be with her husband in Massachussetts. 
And, it can be said that by enhancing Kristen’s interests, those of her
children could be enhanced as well.[1]
See
Echols v. Olivarez, 85
S.W.3d 475, 481 (Tex. App.–Austin 2002, no pet.) (recognizing that the child’s
interests can be intertwined with those of the custodial parent).[2]  Also of record is evidence tending to suggest
that a move would not be detrimental to C.M.G.’s interest for she will be with
the family unit, be by good schools, and have access to other relatives and the
like.  Yet, that was not the only
evidence before the trial court.  
            The record before us also shows that
1) Ken’s education and training (mechanical engineering) qualified him for
multiple jobs, not simply those in the particular field of interest he opted to
pursue; 2) he accepted a job in Massachusetts 
with a “start-up” company experiencing financial losses after a three-month
search even though he was capable of and actually earning money as a consultant
at the time; 3) the jobs within the field of interest selected by Ken (solar energy)
are “government subsidized,” unstable, and could require “moving around”; 4)
C.M.G.’s father (Frank) often ate lunch with her at school, attended school
functions, took her on trips, regularly exercised his visitation, and rarely
allowed more than a couple of days to pass without seeing her; 5) the child
attended an excellent school in Austin; 6) only one airline provided non-stop
service between Boston and Austin and the return flight did not arrive in
Boston until 9:00 p.m.; 7) Frank held a tenured position at the University of
Texas and it would be extremely difficult for him to find a like post on the
East coast; 8) though Kristen offered to make the child available to Frank
through video conferencing and proposed a visitation schedule allegedly
affording him substantially the same amount of visitation time, visitation
nonetheless was dependent on the child’s school schedule;[3]
9) moving would reduce the quantum of daily contact between father and child;
10) C.M.G. loves and has a good relationship with her father, stepmother, and
half sister; 11) the child also has a good friend living near her father; and
12) C.M.G. is close to Frank’s sister who also lives in Austin.  The foregoing evidence is not of little
merit.  It connotes differing
home/economic environments to which C.M.G. would be exposed - one potentially
unstable, nomadic, and dependent upon where jobs could be found in a unique
field of interest versus another shown to be stable and secure.  Needless to say, stability is important to a
child’s well-being.  To that, we add the evidence
of Ken’s current financial ability to travel back and forth to Texas to be with
his family while pursuing his own interests. 
We further note Kristen’s failure to cite us to any evidence
illustrating that 1) her well-being and disposition will be so affected by
having to remain in or around Austin that C.M.G. would suffer, or 2) employment
opportunities (outside the field of solar energy) for which Ken was trained and
qualified were unavailable in or around Austin. 
When considered in toto, the foregoing data and circumstances are enough to insulate
the trial court’s decision from claims of unreasonableness. 
            As suggested by Kristen in her
brief, one must acknowledge that divorce brings change and the obligation to
recognize that.  Yet, the decision to
divorce is seldom made by the children of the marriage.  It is more likely foisted upon them by their
parents.  And, while some commentators
caution against the “slavish adherence” to public policies favoring the
maintenance of continuous and frequent contact between children and both of
their parents, Echols v. Olivarez, 85 S.W.3d at 480, parents lack the
same decision-making freedom, such as the best interest of their children
that they may have enjoyed viz-a-viz their decision to divorce.  In sum, the trial court had sufficient basis
upon which to conclude that retaining the geographical restriction at issue was
warranted.  Its decision does and did not
constitute an instance of abused discretion.
            Motion for New Trial
            As for the motion for new trial,
Kristen thought it should have been granted on the basis of newly discovered
evidence.  The latter purportedly
consisted of statements made by Frank regarding his wife’s medical condition
and how it prevented him from being C.M.G.’s full-time caretaker.  We overrule the issues.
            Whether a trial court erred in
denying a motion for new trial again depends upon whether it abused its
discretion.  Waffle
House, Inc. v. Williams, 313
S.W.3d 796, 813 (Tex. 2010). 
Furthermore, one seeking a new trial due to newly discovered evidence
must show that 1) the evidence has come to his knowledge since trial, 2) the
failure to discover the evidence is not due to a lack of diligence, 3) the
evidence is not cumulative, and 4) the evidence is so material it would probably
produce a different result.  Id.           
            That Frank’s wife suffered from the
particular medical condition was known to Kristen before the trial ended.  Thus, it was not newly discovered evidence
but could be deemed cumulative of other information presented at trial.  And, that C.M.G. had stayed with her father
and stepmother indicated that they had the ability to care for the child
despite the medical condition; so, one could reasonably debate about whether
the new evidence was so material as to probably produce a different result.  Finally, a reasonable jurist could have
deemed the evidence as further support for maintaining the status quo since the
medical condition could be viewed as interfering with the ability of both Frank
and his wife to regularly travel far distances if the child was to move.  That, in turn, could reasonably be viewed as
detrimental to the child’s interest in maintaining substantive interaction with
her entire family.  Thus, denying a new
trial was not an abuse of discretion.  
            In closing, we comment upon the
tenor of appellant’s argument and do so not as  criticism but rather as guidance for others
who may journey down the same road. 
Kristen focused most, if not all, of her attention upon the presence of
evidence that would purportedly warrant modification of the previous
order.  Little was said about the lack of
evidence supporting the trial court’s ruling or why the evidence which
supported it was either deficient or unworthy of credence.  Litigants and their counsel must be mindful
of the standard of review when drafting their briefs and argument if they wish
to effectively help or influence the reviewing court.   
            The orders are affirmed since all
issues are overruled.
 
                                                                                    Brian
Quinn
                                                                                    Chief
Justice
            
 




[1]While
Kristen notes other beneficial factors such as her husband’s increased salary,
due to the higher cost of living and higher taxes in Massachusetts, Ken’s
employment with a startup company whose financial future is not certain, and
the placement of their home on the market even before Ken lost his job and its
failure to sell, there is room for disagreement as to whether that it falls in
Kristen’s favor.  The increased salary
will supposedly allow her to remain a stay-at-home mother but she has been a
stay-at-home mother since her second child was born and she had no plans to
obtain a job in the foreseeable future, even if Ken’s current job does not
last.  There is also mention of the good
schools in the area where they plan to live, but the child currently attends a
“blue-ribbon” school in Austin.   


[2]Kristen
argues that we are bound by a statement in the Echols
opinion to the effect that “we must primarily concentrate on the general
quality of life for both the child and the custodial parent in assessing
whether a change is positive and in the child’s best interest.”  Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex.
App.–Austin 2002, no pet.).  In
that case, the trial court found there to be no abuse of discretion in lifting
a geographical limitation because there was evidence that the child would be a
direct beneficiary of her mother’s promotion which would allow the mother to be
better able to care for the child.  Id. 
However, that opinion was based on the specific facts of that
case.  


[3]It
can also be said that seeing someone over the internet is far different than
being in the actual presence of someone. 
Though a phone call may have its beneficial effects, it hardly
substitutes for a hug, kiss, or touch.


