Opinion issued December 19, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00322-CV
                             ———————————
                      MARIA TURRUBIARTES, Appellant
                                         V.
                        JOSE PABLO OLVERA, Appellee


                    On Appeal from the 309th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-70680


                          OPINION ON REHEARING

       We grant rehearing, withdraw our opinion and judgment dated June 1, 2017,

and issue this opinion and judgment in their place. Because we have granted



    Justice Huddle, who participated in the original decision, resigned her office on
    June 14, 2017, and did not participate in the opinion on rehearing.
rehearing, the appellant’s motion for en banc reconsideration is moot.

      This appeal arises from a dispute between divorcing parents over the

managing conservatorship of their children. The trial court awarded sole managing

conservatorship to the father and possessory conservatorship to the mother. On

appeal, the mother contends the trial court erred in denying her motion for new trial

challenging that ruling.

      We hold that the trial court erred in denying the mother’s motion for new trial.

We reverse the portion of the final decree of divorce appointing the father as sole

managing conservator, affirm the remainder of the decree, and remand this case to

the trial court for a new trial solely on the issue of conservatorship.

                                  BACKGROUND

      Maria Turrubiartes and Jose Pablo Olvera have three children, who were born

before their marriage. The couple married in February 2013 and separated in

October or November 2014, after Maria and a neighbor had an altercation. The

altercation arose when Jose told the neighbor that the neighbor’s husband and Maria

were having an extramarital affair. After the altercation with her neighbor, Maria

left with the children.

      The trial court heard testimony from Maria and Jose as to conservatorship.

No other witnesses testified and the parties introduced little documentary evidence.




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       Jose testified that Maria refused to tell him where she and the children lived

after they separated. Jose said that Maria’s brother-in-law threatened to kill him if

he tried to visit the children at their new home. Without telling Jose, Maria withdrew

the children from the school they had attended in Tomball and enrolled them in a

different one in Magnolia.

       Jose found out where the children were enrolled about a month later. He

visited them there during lunch as often as twice a week in the year before trial. He

did not see the children outside of school because he did not know their home

address. Maria also told the school that Jose was not allowed to take them from the

school. Had he known where the children lived, Jose said he still would not have

been able to see them there given the brother-in-law’s threat.

       Jose further testified that he was the parent who helped the children with their

homework before the separation because he can speak and read in English. He also

said that he had taken them to the doctor. Jose denied that he ever laid his hands on

Maria. He said that he was asking the court to make him primary managing

conservator because he had the resources to provide the children a better life and

because Maria drove them without a driver’s license and he was concerned about

their safety.

       Maria testified that she and the children have lived with her sister and brother-

in-law since the separation. She said that she and Jose separated after he accused


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her of adultery and set her and the children’s clothes on fire. According to her, she

didn’t leave so much as Jose ran her off. Maria acknowledged that, before she and

Jose had separated, she spoke with her neighbor’s husband by phone almost daily,

but she denied that they had an affair.

      Maria also denied that she kept Jose from seeing the children after the

separation. She said that nothing stopped him from visiting them at her sister’s, and

that Jose had visited them outside of school. That said, she could not recall an

occasion when she had allowed Jose to see the children. She also conceded that she

had placed the children in therapy without consulting Jose. Maria testified that Jose

refused to speak with her, and that he had blocked her telephone number and would

not take her calls.

      Maria disputed that Jose had helped the children with homework. She said

that Jose did nothing for the children and had “never really taken care of” them.

Maria acknowledged that she also did not help the children with their studies but

said that her nephew did. She requested that “custody be 50/50” because she and

Jose were both parents and he had no history of parenting.

      The trial court heard testimony from both Maria and Jose about her

immigration status. While Jose is a United States citizen, Maria is an undocumented

immigrant. Maria drives without a driver’s license, which she cannot obtain as an




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undocumented immigrant. She testified that she intends to apply for legal status in

the country. But Maria conceded that she had not yet applied for that status.

      After hearing the evidence, the trial court granted Maria and Jose a divorce

based on “discord and conflict of personalities between the two parties that destroys

the legitimate ends of the marriage relationship.” It divided the property as requested

by Jose, and appointed him as sole managing conservator and Maria as possessory

conservator. The trial court also ordered Maria to have a licensed driver pick up and

return the children during the periods when they were to be in her custody.

      Maria moved for a new trial, contending that legally and factually insufficient

evidence supported the appointment of Jose as sole managing conservator, and that

the trial court should have adhered to the presumption that both parents are to be

joint managing conservators. She also contended that the trial court refused to

appoint her as a joint managing conservator based on her national origin and

immigration status. The trial court denied her motion.

      Maria appeals on the same grounds asserted in her new-trial motion. She also

complains of the trial court’s failure to file timely requested findings of fact and

conclusions of law.

      We abated the appeal and directed the trial court to file findings of fact and

conclusions of law. It did so and we reinstated the appeal.




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      In relevant part, the trial court found that:

      ●   Maria had numerous conversations with a married male neighbor, engaged
          in a dispute with the neighbor’s wife, and subsequently moved out of the
          home she shared with Jose;
      ●   when Maria moved out, she took the children with her without notifying
          Jose and she did not give him their new address;
      ●   Maria also withdrew the children from their school and enrolled them in
          another one that would not allow Jose to pick them up;
      ●   there was no evidence that Maria was a bad driver, had been involved in
          any accidents, or had been detained for traffic offenses or arrested while
          driving with or without the children;
      ●   Maria, however, was an undocumented immigrant without a driver’s
          license who could be detained by the police for driving without a license
          and subsequently deported due to her immigration status; and
      ●   no documents were offered into evidence to show any immigration
          proceedings on behalf of or against Maria or to show that she had applied
          for legal status.

      Based on the record, the trial court concluded that the appointment of Maria

and Jose as joint managing conservators would not benefit the children’s physical,

psychological, or emotional needs and development. It concluded that Maria and

Jose were incapable of making the children’s welfare their first priority and reaching

shared decisions in their best interest, and that Maria and Jose could not accept and

encourage a positive relationship between the children and the other parent. The

trial court stated, however, that other relevant factors bore on its conservatorship

decision, including Maria’s lack of an established residence of her own and a driver’s

license, “as well as the instability resulting from her immigration status.” The trial


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court ultimately concluded that the presumption in favor of joint managing

conservatorship was rebutted and that Jose should be appointed sole managing

conservator.

                                    DISCUSSION

I.    Conservatorship and motion for new trial

      A.       Standard of review

      We review the trial court’s conservatorship decision for an abuse of discretion.

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Compton v. Pfannenstiel, 428 S.W.3d

881, 886 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The trial court’s denial of

a motion for new trial is subject to the same standard of review. Dolgencorp of Tex.

v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam); Ayele v. Jani-King of

Houston, 516 S.W.3d 630, 632 (Tex. App.—Houston [1st Dist.] 2017, no pet.). A

trial court abuses its discretion when it acts without reference to any guiding rules

or principles and thereby renders a decision that is arbitrary and unreasonable.

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999) (per curiam); Alanis v. US

Bank Nat’l Ass’n, 489 S.W.3d 485, 510 (Tex. App.—Houston [1st Dist.] 2015, pet.

denied). With respect to matters of fact, a trial court does not abuse its discretion so

long as some evidence reasonably supports its decision. Butnaru v. Ford Motor Co.,

84 S.W.3d 198, 211 (Tex. 2002); Alanis, 489 S.W.3d at 510. But it has no discretion

to misconstrue the law or misapply the law to the facts. Walker v. Packer, 827


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S.W.2d 833, 840 (Tex. 1992); Authorlee v. Tuboscope Vetco Int’l, 274 S.W.3d 111,

119 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). A trial court therefore

abuses its discretion when it fails to analyze or apply the law correctly. In re E.I.

DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam); Ayele,

516 S.W.3d at 632.

      B.     Applicable law

      The best interest of the children is always the primary focus of conservatorship

decisions. TEX. FAM. CODE § 153.002. The law presumes that it is in their best

interest that both of their parents be named joint managing conservators. TEX. FAM.

CODE § 153.131(b); Bush v. Bush, 336 S.W.3d 722, 730 (Tex. App.—Houston [1st

Dist.] 2010, no pet.). But once the party seeking appointment as sole managing

conservator introduces evidence to rebut the presumption, it disappears. Id.; accord

Zewde v. Abadi, 529 S.W.3d 189, 196–97 (Tex. App.—Houston [14th Dist.] 2017,

no pet.); Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.—El Paso 2003, no pet.). In

deciding whether the presumption has been rebutted, the Texas Family Code directs

courts to consider multiple factors, namely:

      (1) whether the physical, psychological, or emotional needs and development
          of the children will benefit from the appointment of joint managing
          conservators;
      (2) the ability of the parents to give first priority to the welfare of the children
          and reach shared decisions in the children’s best interest;
      (3) whether each parent can encourage and accept a positive relationship
          between the children and the other parent;
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      (4) whether both parents participated in the rearing of the children before the
          filing of the suit;
      (5) the geographical proximity of the parents’ residences;
      (6) if a given 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 § 153.134(a); Lide, 116 S.W.3d at 152–53; Doyle v. Doyle, 955

S.W.2d 478, 480 (Tex. App.—Austin 1997, no pet.). If the presumption favoring

both parents to be named as joint managing conservators is rebutted, then a trial

court may appoint both parents as joint managing conservators only if the seven

factors set forth in Section 153.134(a) show that it is in the best interest of the

children. See TEX. FAM. CODE § 153.134(a); Bush, 336 S.W.3d at 730.

      C.       Analysis

      The record contains evidence rebutting the presumption in favor of joint

managing conservatorship. Jose testified that Maria:

      ●    did not tell him where the children resided after they left;
      ●    removed the children from their school and placed them in another one
           without telling him; and
      ●    told the new school’s administrators that he could not take the children off
           of the school’s grounds.

Maria also conceded that she placed the children in therapy but did not tell Jose

about this decision. This is some evidence that joint managing conservatorship is

not in the children’s best interest, and it displaces Section 153.131(b)’s presumption.

                                            9
See Lide, 116 S.W.3d at 152–53. But the trial court went outside the statutory factors

to include Maria’s immigration status as a consideration.

      The trial court made two dozen fact findings; nine refer to Maria’s

immigration status. Among other things, the court concluded that Maria lacked

stability “due to her immigration status.” It also noted that Jose, by contrast, is a

United States citizen.

      Immigration status, standing alone, is not probative of Maria’s fitness to be a

parent to her children so as to deny her joint managing conservatorship. See TXI

Transp. Co. v. Hughes, 306 S.W.3d 230, 241–42 (Tex. 2010) (immigration status

was collateral matter “not relevant to proving a material issue in the case”). The trial

court heard no evidence in this case regarding any detention or immigration-related

charge, any pending removal proceeding, or that Maria was a subject of any criminal

prosecution. See id.; see also Republic Waste Servs. v. Martinez, 335 S.W.3d 401,

406–11 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (trial court properly excluded

immigration status where speculative possibility of deportation limited probative

value of evidence). The trial court expressly found that there was no evidence that

Maria “has been detained by immigration authorities since coming to this country in

2006, or that she is the subject of any removal proceedings against her.” The trial

court’s orders otherwise protected the children by requiring that they travel with a




                                          10
licensed driver and by designating Jose as the parent to determine the children’s

residence and school.

      Given that the court granted primary possession of the children to Jose and

ordered Maria to have a licensed driver pick up and return the children in connection

with her periods of possession, her immigration status was collateral to the children’s

best interest. Absent evidence showing that it has had a material, adverse effect on

the ability to parent, immigration status should not be used as a basis to deny joint

managing conservatorship. See TEX. FAM. CODE § 153.134(a); TXI Transp., 306

S.W.3d at 241–42 (immigration matter not relevant to a material issue is collateral).

Because it is not one of the statutory factors to determine best interest and the

evidence did not otherwise demonstrate its relevance, the trial court erred in relying

on Maria’s immigration status in determining whether she can be a joint managing

conservator.

      The other circumstances emphasized by the trial court in its findings of fact

and conclusions of law were that Maria failed to keep Jose informed about the

children’s whereabouts, healthcare, and school enrollment. A trial court may decide

that joint managing conservatorship is not in the best interest of the children, or make

other custodial decisions, based on evidence that one parent has systematically tried

to deprive the other of access to the children without justification. For example, in

Allen v. Allen, 475 S.W.3d 453 (Tex. App.—Houston [14th Dist.] 2015, no pet.), the


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trial court made a husband and wife joint managing conservators of their children,

but granted only the husband the right to decide the children’s primary residence,

based on the wife’s interference with his access to their children. Id. at 455. At trial,

the husband testified to several specific instances of interference, including an

occasion when his estranged wife refused to let him see the children at her residence

or take them with him during his visitation. Id. When he later tried to see the

children at their school during lunch, he was told by school officials that his wife

had forbidden visitation. Id. On a subsequent occasion, the wife refused to bring

the children to a court-designated location for visitation exchanges. Id. She also

repeatedly reported him to child protective services for alleged physical and sexual

abuse of the children; however, each of her allegations was dismissed after

investigation. Id. at 455–56, 458. In granting the husband the right to decide the

children’s primary residence, the trial court emphasized that his wife “persisted and

would likely continue to persist in preventing the children from having any chance

at a relationship with their father.” Id. at 458. The Fourteenth Court of Appeals

affirmed, holding that “persistent alienation of the other parent can be a guiding

consideration in making possession and access determinations” and that the trial

court had not abused its discretion given the ample evidence of alienation. Id. at

458–59.




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      The record before us significantly differs from the one in Allen. The trial court

did not find that Maria likely would persist in preventing the children from having a

relationship with Jose upon the trial court’s determination that Jose would have

primary possession and would decide where the children would be enrolled in

school. The record contains no evidence that Maria violated a court order regarding

possession or access to the children. The record does not contain evidence of any

specific instances where Jose tried to arrange visitation with the children outside of

school hours, but was refused access by Maria. Thus, although there is some

evidence to support possessory conservatorship, we cannot say that the trial court’s

reliance on Maria’s immigration status to determine conservatorship, rather than

adhering to the factors set forth in the statute, did not inform its decision. Because

the statutory factors do not include that status as a consideration and it is not

otherwise relevant on this record to its determination, we hold that that the trial court

erred in denying Maria’s motion for a new trial on the issue of conservatorship,

which challenged the trial court’s reliance on her immigration status. See TEX. FAM.

CODE § 153.134(a).

II.   Remaining challenges

      As we are remanding for a new trial on conservatorship, we do not reach

Maria’s separate issues concerning violations of a constitutional right to equal

protection under the law and international law. See TEX. R. APP. P. 47.1.


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                                  CONCLUSION

      We reverse the portion of the final decree of divorce appointing Jose as sole

managing conservator, affirm the remainder of the decree, including its provisions

on primary possession and access, and remand this case to the trial court for a new

trial solely on the issue of conservatorship.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes and Bland.




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