Opinion filed September 2, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00026-CV
                                        __________

                         TIFFANY DAWN O’QUIN, Appellant

                                                V.

                    JAMES RICHARD HEATHCOCK, Appellee


                           On Appeal from the 393rd District Court

                                     Denton County, Texas

                            Trial Court Cause No. 2006-61191-393


                            MEMORANDUM OPINION
       This is a child custody dispute. The trial court granted the parties a divorce, named them
joint managing conservators of their two children, and granted James Richard Heathcock the
right to determine the children’s primary residence. We affirm.
                                      I. Background Facts
       Heathcock and Tiffany Dawn O’Quin were married and had two children, R.H. and C.H.
Heathcock filed for divorce. The trial court signed temporary orders that appointed the parties
temporary joint managing conservators of the children and gave Heathcock the right to designate
the children’s primary residence. At the time of trial, R.H. was six years old and in kindergarten.
C.H. was two years old. The trial court conducted a bench trial and entered a divorce decree that
gave Heathcock the right to designate the children’s residence and gave O’Quin scheduled
visitation that varied in some ways from the standard possession order.
                                             II. Issues
       O’Quin challenges the trial court’s judgment with three issues. She contends first, that
the trial court treated the trial as a modification proceeding rather than an initial determination
and that this imposed a heightened burden of proof upon her; second, that the trial court abused
its discretion by granting Heathcock the right to determine the children’s residence; and finally,
that the trial court abused its discretion by not granting her overnight possession of the children
during the second and fourth weeks of the month.
                                          III. Discussion
       A. Burden of Proof.
       O’Quin argues that the trial court improperly imposed a higher burden of proof upon her
because it treated the trial as a modification proceeding rather than an initial determination. To
substantiate this contention, she alleges that maintaining the status quo was one of only two
reasons advanced by Heathcock in support of his request to determine the children’s primary
residence, and she points to the trial court’s statement at the conclusion of trial that ―I’m going to
leave the father as the primary joint managing conservator.‖
       Heathcock contests the characterization of his case; but, regardless, one party’s trial
strategy does not delineate the burden of proof imposed by the trial court. Moreover, the trial
court’s concluding statement was not a statement of law but was simply an informal, shorthand
description of its holding. We note in this regard that, at the very beginning of the trial when
O’Quin’s counsel tried to discuss the temporary orders, the trial court interjected: ―I’m not going
to – I’m not – I’m going to hear evidence and decide what’s best.‖ The trial court did not impose
a heightened burden of proof, and Issue One is overruled.
       B. Sufficiency of the Evidence.
       O’Quin contends in her second issue that the trial court abused its discretion by granting
Heathcock the right to determine the children’s primary residence because there was insufficient
evidence to support the trial court’s finding of fact that this would serve the children’s best
interest. This requires that we employ 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 J.A.H., 311 S.W.3d 536, 540 (Tex. App.—El Paso 2009, no
pet.). The traditional sufficiency inquiry applies to the first question. Lindsey v. Lindsey, 965
                                                  2
S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.). Once we have determined whether
sufficient evidence exists, we must then decide whether the trial court made a decision that was
neither arbitrary nor unreasonable.
       In considering a legal sufficiency or ―no evidence‖ point, we consider the evidence in the
light most favorable to the verdict and indulge every reasonable inference that would support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Even if evidence is undisputed, it is
the province of the trier of fact to draw from it whatever inferences it wishes so long as more
than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither
the trier of fact nor the reviewing court may disregard it. Id. The trier of fact is the sole judge of
the credibility of the witnesses and the weight to give their testimony. Id. at 819. When there is
conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In
every circumstance in which a reasonable trier of fact could resolve conflicting evidence either
way, the reviewing court must presume it did so in favor of the prevailing party and disregard
any conflicting evidence. Id. at 821.
       A factual sufficiency point requires examination of all of the evidence to determine
whether the finding in question is so against the great weight and preponderance of the evidence
as to be manifestly unjust. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951). The reviewing
court cannot substitute its conclusions for those of the trier of fact.         If there is sufficient
competent evidence of probative force to support the finding, it must be sustained. Carrasco v.
Goatcher, 623 S.W.2d 769 (Tex. App.—El Paso 1981, no writ). It is not within the province of
this court to interfere with the trier of fact’s resolution of conflicts in the evidence or to pass on
the weight or credibility of the witness’s testimony. Benoit v. Wilson, 239 S.W.2d 792 (Tex.
1951). In a bench trial, findings of fact are the equivalent of a jury answer to the special issues.
Associated Tel. Directory Publishers, Inc. v. Five D’s Publ’g Co., 849 S.W.2d 894, 897 (Tex.
App.—Austin 1993, no writ).
       The term ―abuse of discretion‖ is not susceptible to rigid definition. Lindsey, 965 S.W.2d
at 591. The test is not whether, in the opinion of the reviewing court, the facts present an
appropriate case for the trial court’s action, but whether the court acted without reference to any
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or
unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984). The mere
fact that a trial judge may decide a matter within his discretionary authority in a different manner
                                                  3
than an appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).
          Texas courts traditionally use a non-exhaustive list of factors, known as the Holley
factors, when determining the best interest of the children.1 The original Holley decision was a
termination case, but the factors still provide a relevant framework for our analysis.
          The children were too young to testify, but O’Quin contends that R.H. expressed a
preference for living with her because he complained that it is unfair for Heathcock to have
eleven days custody and her only three. But, she conceded that she did not know how R.H.
would feel if this were reversed.
          O’Quin argues that the children’s emotional and physical needs would best be served by
having her designate their primary residence, and she points to the children’s young ages and the
fact that Heathcock agreed to additional Saturday visitation, that she had a large house that she
shared with her sister and niece, and that she had family members to help watch the children.
O’Quin also points to a court-ordered social study performed by Jo Anne Nowick Oliver. Oliver
described Heathcock as a good father, concerned about the children, and O’Quin as a good
parent and loving mother. Oliver recommended that O’Quin be given the right to designate the
children’s residence and explained that this was due, in part, to their young ages.2 Finally,
O’Quin believes that R.H. needs counseling because of behavioral issues and that C.H. needs
additional help because of delayed development, but Heathcock disagrees and, thus, they are not
receiving needed help.
          Heathcock points out that Oliver’s evaluation gave a preference to O’Quin because she is
a woman and that this runs counter to Texas law. See TEX. FAM. CODE ANN. § 153.003 (Vernon
2008) (when determining conservatorship and possession issues, trial courts shall consider the

          1
            Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are: (1) the desires of the children;
(2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children
now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the children; (6) the plans for the children by the individuals seeking custody; (7) the
stability of the home; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not
proper; and (9) any excuse for the acts or omissions of the parent.
          2
           Oliver testified:
                   A. And I additionally have a lot of background in child development, so I think that primary
          conservatorship should also be pinned on the developmental stages of the kid.

                    Q. And what does that mean?

                   A. To me that means they’re pretty young. That’s why I opted for them to have primary
          conservatorship remain with the mother till they get a little older.
                                                                 4
qualifications of the parties without regard to the sex of the party or child). Heathcock called
R.H.’s teacher and school counselor as witnesses. Diane Kenyon is R.H.’s kindergarten teacher.
She testified that R.H. was doing great in school, and that she did not see any need for him to go
to counseling. R.H.’s school counselor, Leticia Otero, testified that counseling might cause R.H.
more harm than good. C.H. was adopted. Heathcock testified that he was concerned about
C.H.’s limited speech but that C.H.’s biological sister was also slow to start speaking, and he
believed that C.H. was making progress.
       Neither party described the other as a bad parent, but both believed that they were a better
parent. O’Quin complains that Heathcock did not get the children involved in appropriate
activities, such as sports, but that she intended to do so. She noted that she had talked to
counselors about handling R.H.’s behavior and that she intended to enroll R.H. in a school near
her home that she believed would be better than the one he was currently attending because of its
smaller class sizes.   Heathcock points out that O’Quin committed adultery, that she is in
counseling and has taken medication for depression, that she has admitted to drinking alcohol at
work, and that her boyfriend has drank at work and then driven her home. He contrasted this by
describing his children’s normal daily schedule, including activities such as going to the park,
playing tee ball, doing homework, taking naps, and watching movies. Finally, the trial court had
the benefit of R.H.’s experience at school while living primarily with Heathcock.
       O’Quin was critical of an individual who lived with them during the marriage and helped
watch the children when they were at work. She successfully requested a provision in the
temporary orders prohibiting this individual from being around the children. She complained at
trial that this provision was violated. Heathcock did not respond to O’Quin’s allegation at trial
but points out in his brief that the trial court also prohibited allowing an unrelated adult with
whom either party has an intimate or dating relationship to remain overnight in the same
residence as the children and that O’Quin admitted at trial that one night her boyfriend slept in
the same house as her and the children.
       The trial court had sufficient information with which to exercise its discretion. The
evidence indicates that both parties are loving, caring parents and that each has the children’s
best interest at heart. Because the trial court had conflicting evidence and because that evidence
could be resolved in favor of either party, we cannot conclude that the trial court abused its
discretion by granting Heathcock the right to determine the children’s residence. Issue Two is
overruled.
                                                5
       C. Overnight Visitation.
       O’Quin contends in her third issue that the trial court abused its discretion by not granting
her overnight possession during the second and fourth weeks of each month. Heathcock and
O’Quin were both employed as bartenders at Cowboy’s Red River. O’Quin works Thursday,
Friday, and Saturday nights from 6:30 or 7:30 until 3:00 the following morning. The trial court
varied from the standard possession order to accommodate her work schedule and the children’s
young ages. O’Quin was given possession of the children on the first, third, and fifth Fridays of
the month beginning when school ends, or at 3 p.m. when school was not in session, and ending
at 7 p.m. the following Monday. She was also given possession on the second and fourth
Mondays beginning at 3 p.m. and ending at 7 p.m.
       Heathcock responds that O’Quin did not request overnight visitation before or during trial
and, therefore, has not preserved this issue. We agree. Texas public policy encourages frequent
contact between children and their parents to optimize the development of a close and continuing
relationship between each parent and child. TEX. FAM. CODE ANN. § 153.251(b) (Vernon 2008).
For parents who reside 100 miles or less apart, the legislature has provided a visitation schedule
that divides weekends and holidays and provides for weekday and vacation visitation. TEX.
FAM. CODE ANN. § 153.312(a) (Vernon Supp. 2009). This provision has been amended since
trial.3 The statute in effect at the time of trial required a possessory conservator requesting
overnight visitation to make an election before or at the time of the rendition of the original or
modification order. O’Quin points us to no such election, and none is contained within the
record. Moreover, we note that O’Quin received longer periods of visitation than required by the
standard visitation order and that, by moving her weekday visitation from Thursday to Monday,
she was freed from a work conflict. Issue Three is overruled.
                                                    IV. Conclusion
       The judgment of the trial court is affirmed.




                                                                              RICK STRANGE
September 2, 2010                                                             JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

       3
        Act of May 27, 2009, 81st Leg., ch. 1113, § 6 (eff. Sept. 1, 2009).
                                                              6
