                         NUMBER 13-13-00162-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ADRIAN GAITAN,                                                         Appellant,

                                         v.

ERICA THUMANN,                                                         Appellee.


                    On appeal from the 25th District Court
                         of Lavaca County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes

      Appellant Adrian Gaitan appeals a child custody order rendered in favor of

appellee Erica Thumann.      By one issue, Gaitan argues the trial court abused its

discretion in granting Thumann the exclusive right to determine the residence of the

parties’ minor child. We affirm.
                                       I.      BACKGROUND

       Gaitan and Thumann are the biological parents of O.G., a minor child born in 2008.

Prior to their break-up, the couple lived together with O.G. for approximately three years,

but never married. During their relationship, Gaitan worked in the offshore oil production

industry, but by the time of trial, he was employed full time with a shore based oilfield

service company. Thumann worked part-time as a bookkeeper and payroll processor.

Thumann testified she used drugs during her relationship with Gaitan and that she was

investigated by the Texas Department of Family and Protective Services (CPS) on three

separate occasions. One of the investigations occurred when both parents were still

living together. At that time, Thumann failed a drug test, and CPS removed O.G. from

the home. O.G. thereafter lived with a relative for approximately one month, but was

returned to Gaitan and Thumann’s home pursuant to a CPS safety plan.

       After the parties separated, Gaitan filed an original suit affecting the parent-child

relationship, requesting temporary conservatorship of O.G. and for Thumann to have

supervised access. Approximately one month later, the parties entered a Rule 11

agreement, approved by the court, giving Thumann the right to designate O.G.’s

residence.1 During the pendency of the case, the parties subsequently agreed to the

preparation of a home study. The home study concluded that Gaitan should be given

the right to designate O.G.’s residence.




       1 See TEX. R. CIV. P. 11. The Rule 11 agreement further stipulated the rights of the parents and

the amount of child support that Gaitan must pay.

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        Following a bench trial, the trial court held that the parties would remain joint

managing conservators, sharing equal rights and duties pertaining to the health and

education of the child, but that Thumann would have the exclusive right to establish O.G.’s

residence.

                     II.     DETERMINATION OF CHILD’S PRIMARY RESIDENCE

        Gaitan contends that the trial court improperly relied on the following criteria to

support its holding granting Thumann the exclusive right to determine the child’s primary

residence: (1) that Thumann took a parenting class and Gaitan did not; (2) that Gaitan

did not list Thumann’s name as an emergency contact at the child’s school; (3) the

conduct of Gaitan’s parents; and (4) the conduct of Thumann after entry of the temporary

orders. Gaitan argues that the above factors are not part of the best-interest standard

and may not be relied on by the trial court. We disagree.

A.      Standard of Review

        In determining which joint managing conservator will have the exclusive right to

establish the primary residence of the children, the trial court is vested with broad

discretion. See In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.);

see also In re D.W.J.B., 362 S.W.3d 777, 780 (Tex. App.—Texarkana 2012, no pet.) (“We

review a trial court's decision regarding custody, control, and possession matters

involving a child under an abuse of discretion standard.”). The trial court's judgment will

be disturbed only where the record as a whole shows that the trial court abused its

discretion. 2   Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas 2011, pet.


        2 In his brief, Gaitan urges us to review this case based on the factual sufficiency. In family law
cases, evidentiary sufficiency is not an independent ground of error but instead is a factor relevant to our
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denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). An appellate

court cannot conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. Moreno v. Perez, 363

S.W.3d 725, 737 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing E.I. du Pont de

Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)); see Pena v. Pena,

8 S.W.3d 639, 639 (Tex. 1999) (per curiam) (“[T]he trial court is vested with wide

discretion in determining custody issues.”). We accord the trial court great latitude in

judging credibility and concern for the child's best interest. See McGalliard v. Kuhlmann,

722 S.W.2d 694, 697 (Tex. 1986); see also In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005);

In re B.L.D., 113 S.W.3d 340, 348 (Tex. 2003).

       A trial court abuses its discretion if it acts arbitrarily and unreasonably or without

reference to guiding principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.

2000); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied). A

trial court does not abuse its discretion when it makes a decision on conflicting evidence.

Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.).                       If some

evidence of a substantive and probative character exists to support the trial court's

decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—

Dallas 2008, no pet.); see In re J.C., 346 S.W.3d 189, 193 (Tex. App.—Houston [14th

Dist.] 2011, no pet.). The evidence need not be compelling or conclusive to support the

trial court's exercise of discretion. See Holley v. Holley, 864 S.W.2d 703, 706 (Tex.




assessment of whether the trial court abused its discretion. See In re A.B.P., 291 S.W.3d 91, 95 (Tex.
App.—Dallas 2009, no pet.).
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App.—Houston [1st Dist.] 1993, writ denied) (holding there is no abuse of discretion if

some evidence of a substantive and probative character supports the decision).

        When the trial court does not file findings of fact and conclusions of law, it is implied

that the trial court made all the necessary findings to support its final order. See Burns,

116 S.W.3d at 920. The judgment will be upheld on any legal theory that finds support

in the evidence. Strong, 350 S.W.3d at 765; see In re A.N.O., 332 S.W.3d 673, 676

(Tex. App.—Eastland 2010, no pet.); see also In re C.B., No. 13-11-00472-CV, 2012 WL

3139866, at *1–2 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.).

B.      Applicable Law

        The Texas Family Code establishes the best interest of the child as the primary

consideration when courts determine conservatorship of a child. TEX. FAM. CODE ANN. §

153.002 (West, Westlaw through 2013 3d C.S.). Section 153.134 lists six specific factors

in determining best interest.3 Id. § 153.134(a) (West, Westlaw through 2013 3d C.S.).

Several, but not all, of the listed factors correspond with those set out by the Texas

Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley

factors are:

        (A) the desires of the child;

        (B) the emotional and physical needs of the child now and in the future;


        3   The statutory factors are: (1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint managing conservators; (2) the ability of
the parents to give first priority to the welfare of the child and reach shared decisions in the child's best
interest; (3) whether each parent can encourage and accept a positive relationship between the child and
the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the
geographical proximity of the parents' residences; (6) if the child is 12 years of age or older, the child's
preference, if any, regarding the person to have the exclusive right to designate the primary residence of
the child; and (7) any other relevant factor. See TEX. FAM. CODE ANN. § 153.134 (West, Westlaw through
2013 3d C.S).
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       (C) the emotional and physical danger to the child now and in the future;

       (D) the parental abilities of the individuals seeking custody;

       (E) the programs available to assist these individuals to promote the best interest
           of the child;

       (F) the plans for the child by these individuals or by the agency seeking custody;

       (G) the stability of the home or proposed placement;

       (H) the acts or omissions of the parent which may indicate that the existing parent-
           child relationship is not a proper one; and

       (I) any excuse for the acts or omissions of the parent.

Id. at 372. This list is by no means exhaustive.         Id. Although Holley involved the

termination of parental rights, appellate courts look to the factors listed there in

determining the issue of best interest in other suits affecting the parent-child relationship.

See, e.g., In re C.R.O., 96 S.W.3d 442, 451 (Tex. App.—Amarillo 2002, pet. denied); see

also Shoemake v. Shoemake, No. 13-05-00421-CV, 2007 WL 1288815, at *4 (Tex.

App.—Corpus Christi May 3, 2007, no pet.) (mem. op.).

C.     Analysis

       1.     The child’s emotional and physical needs now and in the future

       George Matthews conducted the home study on Thumann and Gaitan. Matthews

did not identify any deficiency regarding Thumann’s ability to meet O.G.’s emotional and

physical needs, but concluded that Gaitan should be the parent with the right to designate

the child’s primary residence. In reaching this conclusion, Matthews believed that Gaitan

demonstrated a great deal of stability and would be better able to meet the needs of the

child on a more long-term basis. Matthews testified that the home study was conducted


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approximately eleven months before trial.        The trial court, however, also heard the

following testimony regarding Thumann obtaining a job and a home and the potential

effect of Thumann’s change of circumstances:

      [THUMANN COUNSEL]:                  So do you consider providing for the child
                                          having a job, as that —

      [MATTHEWS]:                         Yes.

      [THUMANN COUNSEL]:                   — a good thing?

      [MATTHEWS]:                         That’s usually — yes.

      [THUMANN COUNSEL]:                  Having a home of your own?

      [MATTHEWS]:                         Not necessarily a home of their own, but
                                          certainly adequate space in the home for
                                          the number of people that are going to be
                                          living in the home.

      [THUMANN COUNSEL]:                  So theoretically, at this point, if you were
                                          to find out Ms. Thumann has held a job
                                          steadily since May, albeit, part time –

      [MATTHEWS]:                         Uh-huh.

      [THUMANN COUNSEL]:                  — and found a home of her own for her
                                          and her son, would that be a positive
                                          thing?

      [MATTHEWS]:                         That would be a positive thing.

      [THUMANN COUNSEL]:                  And at the time when this was conducted,
                                          could that have had a bearing?

      [MATTHEWS]:                         Yes.

      We believe that the trial court was presented with a different set of facts at the time

of trial than what Matthews faced at the time of the home study. Therefore, it was



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reasonable for the court to reach a different conclusion than Matthews regarding which

parent should have the right to designate the child’s residence.

      Additionally, the trial court heard testimony regarding drug use.          Although

Thumann acknowledged her past drug use, she testified that her most recent drug use

occurred in the fall of 2010, when she was still in a relationship with Gaitan. She further

stated that Gaitan provided her with the drugs and used drugs with her on previous

occasions. According to Thumann, the child was not present when she used drugs.

Thumann introduced a negative hair follicle drug test collected in October 2012. She

further testified that she has been O.G.’s primary caretaker throughout his life and that

O.G. has continued to live with her since her separation from Gaitan.

      Gaitan testified that O.G. is healthy, well dressed, and properly groomed. He also

stated that during the relationship, Thumann would take O.G. to the doctor regularly, and

that she was the sole caretaker for O.G. when Gaitan worked offshore.           From this

testimony, the trial court could have reasonably concluded that Thumann is able to safely

care for O.G. and that while she may have used drugs in the past, she was not currently

using drugs and did not pose a risk to O.G.’s safety.

      2.     The emotional and physical danger now and in the future

      Gaitan testified that he does not consider Thumann to be a danger to O.G. As we

previously noted, the court heard testimony pertaining to Thumann’s previous drug use

and her housing and employment stability. When considering the evidence, the trial

court could have reasonably formed the belief that Thumann did not present a danger to

the child’s emotional and physical well-being.


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       3.     The parental abilities of the individuals seeking custody

       During the pendency of the suit, Thumann took a parenting class and Gaitan did

not. Although Gaitan argues that such a consideration is improper, whether or not the

parties take a parenting class is a relevant factor since a parenting class will arguably

have an impact on a party’s parenting ability. See Holley, 544 S.W.2d at 372. Similarly,

Gaitan’s failure to list Thumann as an emergency contact on O.G.’s school records,

although dismissed by Gaitan, is relevant because it casts doubt on whether Gaitan could

encourage and accept a positive relationship between the child and Thumann. See TEX.

FAM. CODE Ann. § 153.134(a)(3).

       Gaitan also challenges the trial court’s consideration of several letters written by

Gaitan’s family to the home study preparer. The letters contained negative comments

directed at Thumann, which the trial court may have viewed unfavorably. Coupled with

Thumann’s testimony, the letters provide evidence regarding the co-parenting abilities of

Thumann and Gaitan. Such evidence is relevant since the trial court is permitted to

consider co-parenting abilities in assigning rights and duties to each parent. See In re

M.A.M., 346 S.W.3d 10, 18 (Tex. App.—Dallas 2011, no pet.). It was not improper for

the trial court to consider the letters in determining the best interest of the child.

       4.     The stability of the home or proposed placement

       Gaitan argues that Thumann’s frequent moves indicate a lack of stability.

Thumann testified that she had moved four times in the year and a half since her

separation from Gaitan and that at the time of trial she had been living at her current

address for a period of two months. At the time the Rule 11 agreement was entered,


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Thumann was living in San Antonio, and Gaitan was living in Hallettsville. Subsequently,

Thumann moved to Long Mott, first living with her mother, then on her own. There was

no evidence that her moves adversely affected her ability to care for O.G.

       Thumann was employed at the time of trial and testified that she had been

employed for a period of at least six months.4 Thumann also testified that she had never

placed the child outside of her home after the separation. It was reasonable for the trial

court to find that Thumann’s conduct since the entry of the temporary orders placed her

closer to family and contributed to her maintaining steady employment, thus creating a

more stable living situation for O.G.

       Gaitan testified that he has lived in the same residence for several years and that

he has the support of his family in caring for O.G. The trial court heard testimony that

Gaitan has had a steady job for a significant period of time, has no other children that he

owes a legal duty to support, and is involved in O.G.’s school. From this evidence, it

seems that Gaitan is an active and concerned parent. Although there is evidence that

Gaitan could provide a stable, loving environment for the child, there is also evidence that

Thumann is prepared to do the same.             The conflicts in the evidence here must be

resolved by the trial court, who may choose to believe one witness and disbelieve others.

See Kuhlman, 722 S.W.2d at 697.




       4 Thumann testified that she could not remember when she started her employment, but that she
had been working there for “a good six to eight months.”
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      5.     The acts or omissions of the parent and any excuse for the acts or
             omissions

      Thumann testified Gaitan supplied the drugs and that they had both participated in

the drug use. She also testified that the last time she used drugs was in 2010, a fact

substantiated by her 2012 negative hair follicle drug test. Neither party testified they

sought treatment or counseling.      Based upon this evidence, the trial court could

reasonably conclude that the issue of drug use involved both parents, but that Thumann

was not currently using drugs and had not been for a significant period of time. We

cannot substitute our judgment for that of the trial court simply because other evidence

may support a different conclusion. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998);

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); see Pena, 8 S.W.3d 639 at 639; see

also Shoemake, No. 13-05-00421-CV, 2007 WL 1288815, at *6.

      6.     Summary

      To the extent Gaitan argues the trial court improperly relied on factors outside of

the best interest standard, we hold that a finding of best interest does not require a

formulaic approach or a strict adherence to a lists of factors. See Holley, 544 S.W.2d at

372; TEX. FAM. CODE ANN. § 153.134(a)(7). Moreover, the challenged considerations are

relevant within the framework of Section 153.134 and Holley. See TEX. FAM. CODE ANN.

§ 153.134; Holley, 544 S.W.2d at 372. Our review of the record shows that sufficient

evidence exists to support the trial court's decision it was in O.G.’s best interest for

Thumann to determine his primary residence. The trial court did not abuse its discretion

in this regard. We overrule Gaitan’s sole issue.



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                                      III.    CONCLUSION

      We affirm the judgment of the trial court.

                                                   GREGORY T. PERKES
                                                   Justice

Delivered and filed the
4th day of September, 2014.




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