      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00118-CV



                                  Angela M. Blackwell, Appellant

                                                  v.

                                    Mark M. Humble, Appellee


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
         NO. 28,167, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



              CONCURRING AND DISSENTING OPINION


                Because I would affirm the judgment in all respects, I concur in the majority’s opinion

with regard to the first four issues and dissent from the remaining portions that reverse and remand

this long-suffering appeal to the trial court.

                We are to review a trial court’s decision on custody, control, possession, and

visitation matters for abuse of discretion, and reverse the trial court’s order only if we determine,

from reviewing the record as a whole, that the trial court abused its discretion. See In re Jane Doe 2,

19 S.W.3d 278, 281-82 (Tex. 2000); Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston

[1st Dist.] 2001, no pet.). Generally, orders arising from modification suits will not be disturbed

unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper,

801 S.W.2d 108, 109 (Tex. 1990). Such an abuse of discretion occurs when a trial court acts

arbitrarily, unreasonably, or without regard to guiding rules or principles. Id. That a trial court may
decide a matter within its discretionary authority in a manner different from an appellate court in a

similar circumstances does not demonstrate an abuse of discretion. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

               In our review of a modification order under an abuse of discretion standard, legal

and factual sufficiency are not independent grounds of error, but are relevant factors in deciding

whether the trial court abused its discretion. See Zeifman v. Michels, 212 S.W.3d 582, 588

(Tex. App.—Austin 2006, pet. denied); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston

[14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.—El Paso 2001,

no pet.). Because we apply an abuse of discretion standard, the traditional sufficiency standards of

review overlap, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475,

476-77 (Tex. App.—Austin 2002, no pet.). Under this hybrid analysis, we engage in 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? Id. at 477-78; Lindsey v. Lindsey,

965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.). The traditional sufficiency review comes

into play with regard to the first question; we then proceed to determine whether, based on the

evidence, the trial court made a reasonable decision, that is, whether the court’s decision was

arbitrary or unreasonable. Lindsey, 965 S.W.2d at 592.

               As Blackwell argues in her fifth issue regarding access and possession, the trial

court’s temporary order has been in effect since April 2, 2003, “being modified by the Judgement

being appealed herein, dated January 25, 2005, only by changing the name of the person to supervise

the visits to a deputy sheriff.” With regard to her access to and possession of the children, Blackwell



                                                  2
contends that the trial judge “abused his discretion in ordering the restricted possession in the first

place and by continuing it in the permanent Judgment” and “by not setting out a program for phasing

Appellant back into standard visitation.”

                In the modification orders dated March 7, 2003, and April 2, 2003, the trial court

expressly found and stated in its written orders that the requested modifications were in the best

interest of the children. In the 2004 proceedings that resulted in the judgment dated January 25,

2005, the court found that it had continuing, exclusive jurisdiction in the case, found Betty French

and Monty Humble to have standing and appointed them co-possessory conservators, and changed

the name of the person to supervise Blackwell’s visits to a deputy sheriff. Based on Blackwell’s

“global” attack on the modification order as the majority describes it, the majority finds that

(i) Blackwell objected on the ground that the trial court failed to include its iteration of “best

interest” in its final judgment; and (ii) she preserved this ground. Blackwell neither objected on this

ground, nor is it preserved.

                Finding sufficient evidence to support the trial court’s decision that “some limitations

on Blackwell’s possession and access would be in the children’s best interests,” the majority

nevertheless disagrees with their “severity” and “the difficulty Blackwell will face in seeking future

modifications that might allow her more contact with her children.” Notwithstanding Blackwell’s

failure to request findings of fact, the majority finds these restrictions seemingly inconsistent with the

trial court’s decision to maintain Blackwell as a managing conservator and concludes that “we are

left to speculate” about what the trial court “believed” the evidence to be. These judgments go to the

heart of a trial court’s discretion, and we may not substitute our judgments for that of the trial court.



                                                    3
                Likewise, I would conclude the trial court did not abuse its discretion in appointing

Monty Humble as a possessory conservator. The majority does not find that the trial court erred in

granting Monty Humble standing, only that there were “meager facts.” Because his testimony

showed that he had seen the children regularly during their lives and was uncontroverted, the trial

court did not abuse its discretion in allowing his intervention and appointing him a co-possessory

conservator. Some evidence of a substantive and probative character exists to support the trial

court’s decision. In the absence of a statutory mandate, there is no abuse of discretion.

                I would conclude that the extensive—albeit stale—record establishes that the trial

court had sufficient evidence to support its modification order and that the trial court did not

abuse its discretion. Given the standard of review, the trial court’s decision was not unreasonable

or arbitrary.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Filed: December 14, 2007




                                                  4
