

 Opinion filed December 9,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                           No. 11-08-00323-CV 
                                                     __________
 
                             IN
THE INTEREST OF A.N.O., A CHILD

 
                                   On
Appeal from the 106th District Court
                                                          Dawson
County, Texas
                                                Trial
Court Cause No. 02-05-16537
 

 
O
P I N I O N
            Iris
Briones-Garrison appeals the trial court’s order modifying the parent-child
relationship between herself and her daughter, A.N.O.  We affirm.
I.  Background Facts
Iris and Fidel Ogeda are
the parents of A.N.O. but were not married.  In 2002, Iris filed an original petition in a suit affecting the parent-child
relationship and asked to be designated as the conservator with the right to
determine A.N.O.’s primary residence or, alternatively, that A.N.O.’s residence be restricted to Dawson County
or any contiguous county. The trial
court entered temporary orders that gave Iris the right to designate A.N.O.’s
residence but restricted her
residence to Dawson County.  When the trial court concluded the trial, it announced that the parties would be joint
managing conservators, that Iris would have the right to designate A.N.O.’s residence, and that A.N.O.’s residence
would be restricted to Dawson County.  The written decree tracked these
holdings except that it contained no residency restriction.
            Several years later, Iris became engaged to Matt
Garrison, and she notified Fidel that she and A.N.O. were moving to Rockwall
with Garrison and that they would then move to Midland. Fidel filed a petition to modify and asked for the
right to designate A.N.O.’s residence. 
Fidel also asked for a temporary restraining order (TRO) preventing Iris from removing A.N.O. from Dawson
County.
            The trial court held a hearing on Fidel’s motion for a TRO.  Fidel
entered into evidence that portion of
the custody trial transcript containing the trial court’s oral pronouncement.  At the end of the TRO hearing, the
trial court announced that it recalled
placing a geographic restriction on A.N.O.’s residence and that this restriction
would remain in place.  The trial
court entered a temporary restraining order that prevented either party from
removing A.N.O. from Dawson County.  The court later entered temporary orders in which it recited the
prior oral residency ruling and noted that it had not been modified.  When the
trial court conducted an evidentiary hearing on the petition to modify, it found for Fidel and modified the
parent-child relationship to give him the right to designate A.N.O.’s residence within Dawson County.
II.  Issues
Iris challenges the trial
court’s order with a single issue, contending that the trial court erred when it modified conservatorship because
there was insufficient evidence of a material and substantial change of circumstance. 
                                                    
III. Discussion
A. Standard of Review.
          We review the trial court’s decision to
modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982).  A trial court abuses its discretion when it acts arbitrarily or unreasonably or when
it clearly fails to correctly analyze
or apply the law.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex. 1985).   Legal and factual insufficiency
challenges are not independent grounds for asserting error in custody determinations but are relevant factors
in assessing whether the trial court abused its discretion.  In re
T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002,
pet. denied). An abuse of discretion
does not occur if some evidence of a substantive and probative character exists to support the trial court’s decision.  Bates
v. Tesar, 81 S.W.3d 411, 424-25
(Tex. App.—El Paso 2002, no pet.).  We
consider only the evidence most favorable to the trial court’s ruling and will uphold its judgment on any legal theory
supported by the evidence.  Niskar
v. Niskar, 136 S.W.3d 749, 753-54 (Tex. App.—Dallas 2004, no
pet.).
B. Material and Substantial Change of Circumstance.
            Iris frames this as a relocation case
and argues that her move was not a material and substantial change of circumstance.  Fidel responds that this is a
residency restriction case and argues
that the trial court had ample evidence upon which to conclude that A.N.O.’s
residence should remain in Dawson
County.
            When the trial court heard Fidel’s petition to modify, Iris had married
Garrison. They were living in Rockwall
but were in the process of moving to Midland.  Iris contends that moving A.N.O. to Midland would not be
a material and substantial change of circumstance
and relies heavily upon the El Paso Court’s decision in Bates,
81 S.W.3d 411.  There, the court held that relocation was
not, as a matter of law, a material and substantial change in circumstance but that moving a
significant distance could support a finding of changed circumstance.  Id.  The court noted that this is a fact-intensive
inquiry and suggested that trial
courts consider the following factors:
·          
the distance involved; 
·          
the quality of the relationship
between the noncustodial parent and the child;
·          
the nature and quantity of the
child’s contacts with the noncustodial parent, both de jure and de
facto;
·          
whether the relocation would
deprive the noncustodial parent of regular and meaningful access to the children;
·          
the impact of the move on the
quantity and quality of the child’s future contact with the noncustodial parent;
·          
the motive for the move;
·          
the motive for opposing the
move;
·          
the feasibility of preserving the
relationship between the noncustodial
parent and the child through suitable
visitation arrangements; and
·          
the proximity, availability,
and safety of travel arrangements.
Id. at 430.
Iris contends that a
consideration of these factors does not support the trial court’s material and substantial change of circumstance
finding.  However, the El Paso Court was not faced with a residency restriction
in Bates. Subsequently, in Fuentes
v. Jasso, No. 08-03-00109-CV, 2004 WL 1078498 (Tex. App.—El Paso May 13, 2004, no pet.) (mem.
opinion), the court considered a custody order that did contain a residency
restriction. The father had the right to designate his son’s residence, but that residence was restricted
to El Paso.  The father moved to Tucson, Arizona. He asked that the geographic limitation be lifted.  The
mother responded by asking for the right to designate her son’s residence.  The trial court ruled in the mother’s
favor.  Id. at *1. The El Paso Court affirmed. It found that, when the father moved, the conflict
between the father’s right to designate
his son’s residence and the residency restriction made the custody order
unworkable and ripe for modification.  Id. at *2.  A similar
situation is present here.
The trial court could not simultaneously maintain
the residency restriction and Iris’s right to designate A.N.O.’s residence.  Iris did not ask the trial
court to lift the residency restriction, and she has not addressed that restriction in her appeal.  We need
not, therefore, consider the effect of the failure to include a residency restriction in the original
custody order or the effect of the trial court’s subsequent orders containing one. Fidel argues that, because Iris did not specifically request the
elimination of the residency restriction at trial, she cannot contest that
restriction on appeal.  We agree that she did not strictly comply with Tex.
R. App. P. 33.1(a) and that a trial
court ordinarily does not abuse its
discretion by not making an unrequested ruling. See Willis v. Willis,
826 S.W.2d 700, 702 (Tex. App.—Houston [14th Dist.] 1992, no writ) (failure
to preserve objection to the trial
court’s judgment creates waiver on appeal).  In this case, however, it was
clear that, by opposing Fidel’s
petition to modify, Iris was implicitly asking the trial court to either
eliminate the residency restriction
or to at least modify it by adding Midland County as an acceptable location.  But
even though we assume an implicit request, this is insufficient to fully
challenge the trial court’s failure to grant her affirmative relief.  Because
Iris was seeking a modification of the custody order, she also had the burden
of proving that there was a material and substantial change of circumstance and
that her requested modification was in A.N.O.’s best interest.  Cisneros v. Dingbaum,
224 S.W.3d 245, 258 (Tex. App.—El Paso 2005, no pet.).  Iris’s failure
to address why the trial court erred by not finding that she carried her burden
of proof leaves us unable to conclude
that the trial court abused its discretion by not granting her implicit request. Tex.
R. App. P. 38.1(f).
If we assume that Iris’s opposition to Fidel’s
petition and her issue are sufficient to preserve a challenge to the
modification order, she has not shown an abuse of discretion.  The Family Code provides four grounds for modifying
a custody order:  (1) by agreement of
the parties, (2) the child’s preference, (3) a voluntary relinquishment, or (4) a material and substantial
change of circumstance. Tex. Fam.
Code Ann. § 153.007(a) (Vernon 2008),
§ 156.101 (Vernon Supp. 2010).  The first three grounds are not implicated
in this case.  Thus, Iris’s implicit
request to modify necessarily concedes that a material and substantial change of circumstance had occurred.  Furthermore, because of the irreconcilable conflict
between Iris’s right to designate A.N.O.’s residence and the residency
restriction, the trial court did not err by finding that a material and
substantial change in circumstance had occurred. 
The next question is whether the trial court’s
decision to give Fidel the right to designate A.N.O.’s residence was in A.N.O.’s
best interest.  Texas appellate courts
review a 


trial court’s best interest finding using the Holley factors.  See Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  These factors
include, without limitation, the following:
(1) the desires of the child;
 
(2) the emotional and physical needs of the child
now and in the future;
 
(3) the emotional and physical danger to the child
now and in the future;
 
(4) the parental abilities of the individuals
seeking custody;
 
(5) the plans for the child by these individuals;
 
(6) the stability of the home;
 
(7) the
acts or omissions of the parent that may indicate that the existing
parent-child relationship is not a
proper one; and
 
(8) any
excuse for the acts or omissions of the parent.
 
Id.  When
the trial court’s decision involves relocation issues, the Texas Supreme Court
has identified the following
additional factors:
(1) the relationship with and presence of extended
family;
 
(2) the presence of friends;
 
(3) the presence of a stable and supportive
environment;
 
(4) the
custodial parent’s improved financial situation and ability to provide a better
standard of living for the child;
 
(5) the
positive impact on the custodial parent’s emotional and mental state, with
beneficial results to the child;
 
(6) the
noncustodial parent’s right to have regular and meaningful contact;
 
(7) the
ability of the noncustodial parent to relocate; and
 
(8) the
ability of the noncustodial parent to adapt his work schedule to the child.
Lenz v. Lenz, 79 S.W.3d 10, 15-19
(Tex. 2002).
          At
the conclusion of the final hearing, the trial court advised the parties that
A.N.O.’s best interest could be
served by being in either parent’s home.  Iris maintains that she is the better
choice for primary conservator, but she does not challenge Fidel’s parenting abilities. 
Because the trial court found that both parties were good parents, it gave consideration to the residency restriction.  When
a conservatorship order has been implemented, the concept of res judicata
attaches, and the order establishes what was in the child’s best interest at the time of the divorce. Knowles
v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969). The trial court’s oral
pronouncement at the original custody trial establishes that A.N.O.’s best interest at that time was served by
a residency restriction. 
The trial court had sufficient
evidence upon which to conclude that the residency restriction was still in A.N.O.’s best interest.  The
court noted that Iris originally requested the residency restriction and that of it neither party had ever complained. 
A.N.O. has resided in Dawson County
since shortly after her birth.  A.N.O. was
in school in Lamesa, and she was involved in ballet, soccer, and Girl Scouts.  She had grandparents, aunts, uncles, and several
cousins her age in Lamesa.  She had no family in Midland.  Garrison is a
Lieutenant with the Texas Department
of Public Safety.  He has been with the DPS for ten years. Midland was his
sixth duty station.  Consequently, there
was reason to believe that A.N.O. would be required to periodically move if the trial court lifted the residency restriction.
Texas public policy
encourages promoting stability for children and discourages constant litigation in child custody cases.  Bates,
81 S.W.3d at 421.  Iris correctly
notes that A.N.O. has resided with
her all of her life and that the trial court’s order dramatically altered this
constant. A.N.O. has, however, lived
in Lamesa essentially all of her life, and she has several con-nections to that community.  If the court lifted the
residency restriction, this constant would be altered.  The trial court was, therefore, required to weigh
competing concerns when determining A.N.O.’s best interest. Trial courts are 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. at 424. Thus, trial courts do not abuse their
discretion so long as some evidence
of a substantive and probative character exists to support the trial court’s
decision.  Jenkins v. Jenkins, 16
S.W.3d 473, 477 (Tex. App.—El Paso 2000, no pet.).  The trial court had sufficient evidence upon which to conclude that
A.N.O.’s best interest would be served by retaining the residency restriction.  Because Iris had moved and because
both parties were good parents, the trial court did not err by giving Fidel the
right to designate A.N.O.’s primary residence. 
Iris’s issue is overruled.
IV.  Conclusion
The
judgment of the trial court is affirmed.
                                                                                                
 
                                                                                                RICK
STRANGE
                                                                                                JUSTICE
 
December
9, 2010
Panel consists of: 
Wright, C.J.,
McCall, J., and Strange,
J.

