Affirmed and Opinion filed August 25 , 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00426-CV

                          JESSICA ALLEN, Appellant
                                         V.

                           JOSHUA ALLEN, Appellee

                   On Appeal from the County Court at Law
                             Waller County, Texas
                      Trial Court Cause No. 12-12-21748

                                  OPINION
      Jessica Allen appeals from the final decree of divorce ending her marriage to
Joshua Allen. In a single issue, she contends the trial court abused its discretion in
designating Joshua as the parent with the exclusive right to determine the primary
residence of the two children of the marriage, daughter N.A. and son J.A. We
affirm.

                                    Background

      Jessica and Joshua married in August 2007 and separated in early August
2012. Upon separating, Jessica and the children moved in with her mother. On
August 6, 2012, the parties signed an agreement under which Jessica would have
primary conservatorship of the children and Joshua would not be required to pay
child support.1 Subsequently, Joshua changed his mind and no longer agreed to
those terms.

       Jessica filed for divorce on December 12, 2012, and Joshua filed a counter-
petition on January 2, 2013. On January 10, 2013, the trial court entered agreed
temporary orders, providing for joint managing conservatorship of the children,
designating Jessica as the conservator with the right to determine the children’s
primary residence, and requiring Joshua to pay child support. Upon Jessica’s
motion, the trial court amended its temporary orders to provide specific terms
governing Joshua’s periods of visitation with the children. On November 12,
2013, Joshua filed an amended counter-petition requesting that he be appointed
sole managing conservator or, in the alternative, that he and Jessica be appointed
joint managing conservators with Joshua having the right to determine the
children’s primary residence. On December 12, 2013, the trial court held a final
trial. In the resulting decree, the court named both parents as joint managing
conservators, awarded Joshua the right to determine the children’s primary
residence, and ordered Jessica to pay child support.               At trial, Joshua was
represented by counsel, Jessica appeared pro se, and a guardian ad litem
represented the interests of the children.

       During trial, Joshua testified regarding several instances in which he
contended Jessica impeded his access to the children.              For example, Joshua
recalled a specific instance occurring about two weeks after the separation when he
arrived at Jessica’s mother’s house to pick up the children but was not allowed to

       1
        This written agreement was admitted into evidence but is not included in the record;
however, Joshua testified in detail regarding its contents and execution.

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come in and see them or take the children with him. Later that day, police officers
informed Joshua that he had been accused of criminal trespass and belligerence at
Jessica’s residence. Joshua stated that, on another day, he went to N.A.’s school to
have lunch with her but was told Jessica had informed the school that neither
Joshua nor certain named members of his family should be allowed to interact with
or receive information regarding N.A.

      Joshua further testified that in July 2013, Jessica texted him to say that she
would not be coming to the police station—the court-designated location for
visitation exchanges—to transfer the children to Joshua for his period of
possession.   A police officer at the station accompanied Joshua to Jessica’s
residence, but Jessica came out yelling at Joshua and refused to relinquish the
children. Thirty minutes later, Joshua was arrested by the same officer for the
criminal trespass allegation made by Jessica in August 2012. Joshua stated that the
charges were later dropped.

      Between April to August 2013, Jessica made several reports to Child
Protective Services of sexual or other physical abuse of N.A. while in Joshua’s
custody. CPS investigator Janet Harris testified that she investigated a report of
physical abuse by Joshua in August 2013 and ruled out any abuse. She further
stated that she saw no cause for concern at either parent’s house and believed both
were appropriate places for the children to live. CPS investigator Lauren Reid
testified that she investigated two allegations that N.A. had been sexually abused
and one allegation of negligent supervision. The allegations were merged into one
investigation, the results of which were inconclusive. Reid stated that while there
was evidence to suggest something may have happened, it could not be determined
exactly what happened or who may have been involved, if anyone.               At the
conclusion of the investigation, the family was referred to counseling or parenting
classes. Kim Mathis, executive director of a family crisis center, testified that she

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received a referral for services to be provided to Jessica and N.A. but that, after an
initial intake meeting, neither returned for counseling.

      In his testimony, Joshua raised concerns that Jessica would continue to
interfere with his visitation if the children continued to live with her, based on her
past behavior, repeated reports to CPS, and statements made to Joshua and his
family. Joshua’s mother testified regarding her relationship with the children, her
experience as a daycare provider, and her willingness to help Joshua with the
children. Jessica asked Joshua’s mother whether she failed to ensure the children
were buckled in their seatbelts when being transported and whether she had
stripped J.A. from the waist down and stared “at his privates.” Joshua’s mother
denied both allegations.

      In her closing remarks, the guardian ad litem stated that she believed both
parents were capable of taking care of the children and that both households were
safe and adequate for the children.      She expressed concerns that Jessica was
creating “a big wedge” between Joshua and the children and seemed intent on
continuing her feud with Joshua. She further expressed concern that the children
were firmly bonded with Jessica and that changing primary custody to Joshua
would be a “huge” step for the children but did not see a reason they could not
return to a home, Joshua’s, where they had lived for five years.

                                     Discussion

      In her sole issue, Jessica contends that the trial court abused its discretion in
granting Joshua the right to establish the children’s primary residence. We review
a trial court’s determination of conservatorship issues under an abuse of discretion
standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re Marriage of
McNelly, No. 14-13-00281-CV, 2014 WL 2039855, at *11 (Tex. App.—Houston
[14th Dist.] May 15, 2014, pet. denied) (mem. op.). A trial court abuses its

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discretion when it acts unreasonably, arbitrarily, or without reference to any
guiding rules or principles. J.A.J., 243 S.W.3d at 616. Challenges to the legal or
factual sufficiency of the evidence are not separate grounds of error, but instead are
relevant factors to consider in assessing whether the trial court abused its
discretion. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.]
2010, pet. denied). In determining whether the trial court abused its discretion
because the evidence was legally or factually insufficient, we consider whether the
trial court had sufficient information upon which to exercise its discretion and
whether it erred in its application of that discretion. McNelly, 2014 WL 2039855,
at *11. Traditional sufficiency review comes into play with regard to the first
question, and with regard to the second question, we determine whether the trial
court made a reasonable decision. Id. A trial court does not abuse its discretion if
there is some evidence of a substantive and probative character to support its
decision. R.T.K., 324 S.W.3d at 900.

      In reviewing for legal sufficiency, we examine the entire record, considering
evidence favorable to the finding if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. Thornton v. Cash, No.
14–11–01092–CV, 2013 WL 1683650, at *10 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (mem. op.). In addition, we indulge every reasonable inference that
would support the finding at issue. Id. The evidence is legally sufficient if it
would enable reasonable and fair-minded people to reach the decision under
review. Id. In reviewing factual sufficiency, we must examine the entire record,
considering evidence both in favor of and contrary to the challenged findings. Id.
at *11. We may set aside a finding only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Id.

      When a court appoints both parents as joint managing conservators, it must
designate to one of them the exclusive right to determine the child’s primary

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residence, with or without geographic restrictions.            Tex. Fam. Code §
153.134(b)(1). The primary consideration is the best interest of the child when
determining issues of conservatorship or possession of and access to the child.
Tex. Fam. Code § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000); see also
Lenz v. Lenz, 79 S.W.3d 10, 14–16 (Tex. 2002) (discussing factors often relevant
in a best-interest analysis); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)
(same). It is the public policy of the state to (1) assure that children will have
frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child; (2) provide a safe, stable, and nonviolent environment
for the child; and (3) encourage parents to share in the rights and duties of raising
their child after the parents have separated or dissolved their marriage. Tex. Fam.
Code § 153.001.

      In support of her contention that the trial court abused its discretion in
granting Joshua the right to determine the children’s primary residence, Jessica
emphasizes that she had primary custody of the children before the court entered
the final decree, Joshua signed an agreement giving her that right, and she reported
abuse to the authorities. She further argues that the trial court abused its discretion
in not acting on the parties’ prior agreement and in changing the status quo in the
absence of a compelling reason. She additionally contends that Joshua failed to
present any evidence of bad acts on her part that would support awarding Joshua
the right to designate primary residence. Jessica does not, however, offer any
authority or cognizable legal argument in support of her assertions that the trial
court was bound to continue the status quo or that evidence of her bad acts was
required before Joshua could be awarded the right in question. See Tex. R. App. P.
38.1(i) (requiring an appellant to include argument and pertinent authority in its
brief); In re C.D.B., No. 14-13-00718-CV, 2015 WL 1405921, at *5 (Tex. App.—
Houston [14th Dist.] Mar. 24, 2015, no pet.). Nothing is presented for our review

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as to these arguments.

       Parties to a divorce proceeding may enter a written agreement concerning
conservatorship and possession of a child.             See Tex. Fam. Code § 153.007.
However, when one party revokes consent before the trial court enters its final
orders, the prior agreement on its own is no longer a proper basis for such orders.
See Woody v. Woody, 429 S.W.3d 792, 796 & n.5 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (holding where party withdrew consent to agreement
regarding child support prior to rendition of the judgment, trial court erred by
incorporating that agreement into the final judgment); In re M.A.H., 365 S.W.3d
814, 820 (Tex. App.—Dallas 2012, no pet.) (noting that statutes concerning
unmediated agreements on child support, conservatorship, and possession of
children do not contain language stating such agreements are irrevocable). Even if
Joshua had not withdrawn his consent to the agreement, the trial court was not
bound to follow the agreement unless it determined that it was in the children’s
best interest. See Tex. Fam. Code § 153.007 (authorizing parties to enter agreed
parenting plan but providing court shall render an order in accordance with such a
plan only if the court finds the agreed plan is in the child’s best interest); In re
V.L.K., No. 02–10–00315–CV, 2011 WL 3211245, at *4 (Tex. App.—Fort Worth
July 28, 2011, no pet.) (mem. op.) (“[E]ven agreed-to matters of conservatorship or
possession are subject to the trial court’s approval after considering the child’s best
interest.”).2

       Here, not only did Joshua revoke his consent to the agreement, but the trial
court also determined that the best interest of the children was served by


       2
         It is undisputed that the agreement between the parties in this case was not a mediated
settlement agreement, which trial courts generally are bound to follow in rendering a judgment,
provided the agreement complies with section 153.0071(d) of the Family Code. See In re Lee,
411 S.W.3d 445, 458-59 (Tex. 2013).

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appointing Joshua and not Jessica as the parent with the right to determine the
primary residence. A trial court has broad discretion to decide the best interest of
children in matters involving custody, visitation, and possession. E.g., Popek v.
Popek, No. 14–10–00201–CV, 2011 WL 2566185, at *5 (Tex. App.—Houston
[14th Dist.] June 30, 2011, no pet.) (mem. op.). The trial court is best able to
observe and assess the witnesses’ demeanor and credibility and to sense what may
not be apparent merely from reading the record on appeal. Id. Therefore, we
should defer to the trial court’s resolution of underlying facts and to credibility
determinations that may have affected its decision, and should not substitute our
judgment for that of the trial court. Id.

      As set forth in detail above, the record reveals there was evidence to support
the trial court’s decision. At trial, the CPS workers testified and the appointed
guardian for the children opined that both parents were capable of caring for the
children and providing a safe home with food, clothing, and shelter. Further
evidence, however, established that Jessica frequently had prevented Joshua from
seeing his children. Additionally, Jessica reported Joshua for sexual and physical
abuse of N.A. and continued to do so despite each allegation being dismissed upon
investigation; she even alleged at trial that Joshua’s mother had behaved
inappropriately. The trial court reasonably may have concluded that Jessica’s
actions were aimed at preventing Joshua’s access rather than preventing abuse of
the children.

      At the conclusion of trial, the trial judge emphasized that Jessica had
persisted and would likely continue to persist in preventing the children from
having any chance at a relationship with their father. The judge further expressed
doubt as to whether, if she were given the right to determine the children’s primary
residence, Jessica would ever allow the children to have a good relationship with
Joshua.    Such persistent alienation of the other parent can be a guiding

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consideration in making possession and access determinations. See, e.g., In re
J.W.H., No. 14-09-00143-CV, 2010 WL 1541679, at *6-7 (Tex. App.—Houston
[14th Dist.] April 20, 2010, no pet.) (mem. op.) (affirming trial court’s
modification order changing which parent had primary custody based in part on
evidence parent who originally had primary possession had repeatedly attempted to
interfere with other parent’s periods of possession); In re Marriage of Chandler,
914 S.W.2d 252, 254 (Tex. App.—Amarillo 1996, no writ) (affirming order
divesting parent of managing conservatorship due in part to interference with other
parent’s relationship with child).

      Indulging every reasonable inference that would support the trial court’s
finding, we conclude that the trial court had sufficient evidence to support its
decision. The court did not act unreasonably, arbitrarily, or without reference to
any guiding rules or principles by naming Joshua the conservator with the right to
determine the children’s primary residence; therefore, the trial court did not abuse
its discretion. See J.A.J., 243 S.W.3d at 616.

      Accordingly, we overrule Jessica’s sole issue and affirm the trial court’s
judgment.




                                       /s/       Martha Hill Jamison
                                                 Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.




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