       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-01-00410-CV




                                      Weldon Echols, Jr., Appellant


                                                      v.


                                       Susanna Olivarez, Appellee




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
            NO. 96-05084, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING




                 Appellant Weldon Echols, Jr. appeals from an order of the district court rendered in a suit

to modify the parent-child relationship. Echols is the father of the child subject to the modification order. In

the order, the court granted appellee Susanna Olivarez, the child=s mother, the exclusive right to establish the

child=s primary residence without limitation or restriction. In two issues, Echols contends that the evidence

presented was legally and factually insufficient to support a finding: (1) that there was a material and

substantial change warranting the modification of the existing order; and (2) that the requested modification

would be a positive improvement for and in the best interest of the child. We will affirm the order.
                                              BACKGROUND

                 The child, a boy, was born in October 1993. Echols and Olivarez were not married at the

time of his birth and never married. Shortly after the child=s birth, Echols and Olivarez began cohabitating.

When the child was about two years old, Echols and Olivarez separated. In May 1996, Olivarez filed a

petition to establish the child=s paternity, which resulted in an agreed final order establishing Echols=s

paternity in April 1997. The order appointed Echols and Olivarez joint managing conservators of the child,

and Olivarez was granted the right to establish the child=s primary residence within the state of Texas.

Since Echols and Olivarez separated, Echols has married and has two other children.

                 In early 2000, Olivarez gave birth to a second son. She took extended maternity leave

from her employment, and her position was filled in her absence. Olivarez=s employer offered her other

positions, all lateral moves at her former pay. In addition, her employer offered her a promotion to a new

position in Tennessee that paid eight percent more and included an additional ten percent salary bonus. As

a result, Olivarez filed a petition to modify the 1997 order, requesting that the district court lift the residence

restriction and allow her to move with her family to Tennessee. The district court granted her request, and

Echols now appeals.


                                        STANDARD OF REVIEW

                 In two issues on appeal, Echols contends that the district court abused her discretion in

granting Olivarez=s motion to modify the 1997 order because the evidence presented at trial was legally and
factually insufficient to support the district court=s findings: (1) that there had been a material and substantial

change warranting a modification of the original order; and (2) that moving with the child would be a positive

improvement for and in the best interest of the child. Where, as here, the sufficiency-of-the-evidence and

abuse-of-discretion standards of review overlap, as they frequently do in family law cases, appellate courts

employ a hybrid analysis. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.CEl Paso 2000, no writ).

                 In considering the legal sufficiency of the evidence, an appellate court considers only the

evidence that supports the trial court=s findings and disregards all evidence and inferences to the contrary.

Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Jenkins, 16 S.W.3d at 477. If any probative

evidence supports the jury=s determination, it must be upheld. In re King=s Estate, 244 S.W.2d 660,

661-62 (1951). In reviewing factual sufficiency, we examine all the evidence and reverse only if the trial

court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.

King=s Estate, 244 S.W.2d at 660; Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex. App.CEl Paso

1998, no pet.); Burtch v. Burtch, 972 S.W.2d 882, 888-89 (Tex. App.CAustin 1998, no pet.). In an

appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Associated

Telephone Directory Publishers, Inc v. Five D=s Publishing Co., 849 S.W.2d 894, 897 (Tex.

App.CAustin 1993, no writ); A-ABC Appliance of Texas, Inc v. Southwestern Bell Tel. Co., 670

S.W.2d 733, 736 (Tex. App.CAustin 1984 writ ref=d n.r.e.). The reviewing court cannot substitute its

conclusions for those of the trial court if there is sufficient competent evidence of probative force to support

the trial court=s findings. Downer v. Aquamarine Operators, Inc., 707 S.W.2d 738, 242 (Tex. 1985);

Abernathy v. Fehlis, 911 S.W.2d 845, 848 (Tex. App.CAustin 1995, no writ); Southwestern Bell Tel.

                                                        3
Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex.

1959).

                 A trial court=s order modifying a joint managing conservatorship will not be disturbed on

appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644

S.W.2d 449, 451 (Tex.1982); Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex. App.CCorpus

Christi 1992, writ denied). The test for abuse of discretion is whether the trial court acted in an arbitrary

and unreasonable manner, or whether it acted without reference to any guiding principles. Downer, 701

S.W.2d at 242. Ditraglia v.Romano, 33 S.W.3d 886, 888 (Tex. App.CAustin 2000, no pet.). The fact

that a trial court may decide a matter within its discretionary authority in a different manner from an appellate

court in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 241-

42; Ditraglia, 33 S.W.3d at 888. The question of conservatorship of a child is left to the sound discretion

of the trial court when it sits as trier of fact. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ.

App.CDallas 1981, no writ). The trial court is in the best position to observe the demeanor and

personalities of the witnesses and can Afeel@ the forces, powers, and influences that cannot be discerned by

merely reading the record. Id. Thus, an abuse of discretion does not occur as long as some evidence of a

substantive and probative character exists to support the trial court=s decision. Valdez v. Valdez, 930

S.W.2d 725, 731 (Tex. App.CHouston [1st Dist.] 1996, no writ).

                 Once it has been determined that the abuse-of-discretion standard applies, an appellate

court engages in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to

exercise its discretion; and (2) whether the trial court erred in its application of discretion. Lindsey, 965

                                                       4
S.W.2d at 592. The traditional sufficiency review comes into play with regard to the first question;

however, the inquiry does not end there. Id. The appellate court then proceeds to determine whether,

based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, the

appellate court must conclude that the trial court=s decision was neither arbitrary nor unreasonable. Id.; see

also, In re De La Pena, 999 S.W.2d 521 (Tex. App.CEl Paso 1999, no pet.).


                                              DISCUSSION

                By his first issue, Echols contends that the district court abused her discretion in granting

Olivarez=s motion to modify the 1997 order because the evidence presented at trial was legally and factually

insufficient to support a finding that there has been a material and substantial change warranting a

modification of that order. The standard for modifying a joint managing conservatorship has always been

less stringent than the standard for modifying a sole managing conservatorship. A joint managing

conservatorship may be modified if the party requesting the modification: (1) shows that there has been a

material and substantial change in circumstances or shows that the decree has become unworkable or

inappropriate under the circumstances;1 and (2) shows that the modification would be a positive

improvement for and in the best interest of the child. See Tex. Fam. Code Ann. ' 156.202 (West 1996).2

The district court made the following finding of fact:


          1
                 Olivarez did not argue at trial that the 1997 order had become unworkable or inappropriate
under the existing circumstances, and the district court made no finding to that effect. Instead, Olivarez
urged that there had been a material and substantial change in circumstances.
          2
                This provision was repealed in 2001. See Act of May 22, 2001, 77th Leg., R.S., ch.

                                                      5
        5.    The circumstances of Susanna Olivarez have changed since the rendition of the
              Divorce Decree3 entered April 23, 1997. Since that time, Ms. Olivarez has had a
              second child, not the subject of this suit. She has moved to a new position with her
              employer; and she has been promoted to a better job with the same company that
              involves her relocating outside the state of Texas. This promotion involves more
              responsibility, more flexibility, opportunity for growth and a raise in pay.




1289, 2001 Tex. Gen. Laws 3108, 3111. It was replaced by section 156.101 of the family code. Tex.
Fam. Code Ann. ' 156.101 (West Supp. 2002); Act of May 22, 2001, 77th Leg., R.S., ch. 1289, 2001
Tex. Gen. Laws 3108, 3108-09. The new provision Atakes effect September 1, 2001, and applies to an
action to modify an order in a suit affecting the parent-child relationship pending on that date or filed on or
after that date.@ Id. ' 13 at 3111. The final judgment in the present case was rendered by the district court
on April 10, 2001, and both parties rely on the prior statute. We will assume, without deciding, that the
repealed statute controls the disposition of this cause, and cite to that provision accordingly. See Lenz v.
Lenz, 45 Tex. Sup. J. 781, 782 n.1; 2002 Tex. LEXIS 75, at *5, n.1 (June 6, 2002). The current statute
no longer requires a showing that the modification would be a positive improvement for the child.
          3
                Because Olivarez and Echols were never married, there was no divorce decree.
Conservatorship and other issues related to the child were resolved in an order entitled ADecree in a Suit
Affecting the Parent-Child Relationship.@




                                                      6
(Footnote added.) The evidence presented at trial indicated that Olivarez had developed a flexible work

environment with her present employer; her employer accommodated her schedule as a working mother

with a new child. Because of downsizing, her employer could not offer her advancement in the Austin

area after her return from maternity leave, but her employer did offer her an advancement opportunity in

Tennessee. This position provided additional financial security for the family unit (Olivarez and her two

sons), and it also provided Olivarez with additional job responsibilities and continued opportunity for

advancement. The combination of factorsCthe birth of a second son, the loss of her position in Texas due

to her extended maternity leave, the new position in Tennessee offering additional financial security, and the

expectation of career advancement thereCconstitutes a material and substantial change since the rendition

of the 1997 order.4 Accordingly, we conclude that the district court had sufficient information on which to

exercise her discretion and did not err in her application of that discretion. We overrule Echols=s first issue.


          4
                 The district court also made findings indicating that there had been a material and substantial




                                                       7
change in the life of the child and his father. Because it is sufficient to establish that a material and substantial
change has occurred in Olivarez=s life, we need not address the district court=s findings with regard to the
child and Echols. Those findings are:

           6.   The circumstances of . . . the child the subject of this suit, have changed since the
                rendition of the Divorce Decree entered April 23, 1997. The child was three and
                2 when the Divorce Decree was entered and he is now 7 and 2 years of age.
                He has a new sibling that resides with his mother and a new sibling that resides
                with his father. He is better able to understand the move and better able to travel
                by air by himself.

           7.   The circumstances of the Respondent, Weldon Echols, Jr. have changed since the
                rendition of the Divorce Decree entered April 23, 1997. He has remarried and
                now has an additional child.


                                                         8
                We next determine whether Olivarez=s request to modify the 1997 order to allow her to

relocate outside Texas with the child would be a positive improvement for and in the best interest of the

child. By his second issue, Echols contends that the district court abused her discretion because the

evidence presented at trial was legally and factually insufficient to support a finding that the move to

Tennessee would be a positive improvement for and in the best interest of the child. Echols contends that

the only evidence Olivarez presented related to her employment opportunity, which does not satisfy her

statutory burden of establishing that the relocation would be a positive improvement for and in the best

interest of the child. Echols contends that the evidence only shows that the move would be a positive

improvement for and in the best interest of Olivarez. We disagree.

                Initially, we address the issue of primary custody in a joint-conservatorship situation.

Although Olivarez and Echols were granted joint custody, Olivarez was granted and undisputedly exercised

primary custody. Echols frames the issue as whether it would be a positive improvement for and in the best

interest of the child to move with his mother to Tennessee. Said another way, the issue before this Court is

whether, after the district court has granted his mother primary custody, and after living with his mother in

that capacity for five years, it would be a positive improvement for and in the best interest of the child to

either force Olivarez to relinquish primary custody to Echols in order to accept her job opportunity or force

her to forego the job opportunity and remain in Texas, against her will, in order to retain primary custody of

the child.5 Texas case law in this area is sparse.6 Recently, however, the Texas Supreme Court has


          5
               We note that Echols would not be under the same constraints. If he were to choose to
move outside Texas, Olivarez would have no standing to file suit to enjoin him from leaving Texas to ensure

                                                      9
provided some direction in this area. See Lenz v. Lenz, 45 Tex. Sup. J. 781; 2002 Tex. LEXIS 75, at

*10-18 (June 6, 2002). Although the Lenz court conducted a legal sufficiency review to determine whether

the evidence supported a jury verdict, its favorable review of the jurisprudence of other states that have

outlined less restrictive standards in the relocation context informs our decision in this case. 45 Tex. Sup. J

at 785; 2002 Tex. LEXIS 75 at *17-18.




contact with his son, even if that would be in the child=s best interest.
          6
                  Echols directs our attention to two cases in support of his argument that relocation would
not be a positive improvement for and in the best interest of the child. First, he cites Villasenor v.
Villensor, 911 S.W.2d 411 (Tex. App.CSan Antonio 1995, no writ), in which the appellate court held that
a trial court did not abuse its discretion in refusing to allow a parent to relocate with a child. That case is
distinguishable. In this case, we are determining whether the district court abused her discretion in
permitting the relocation. Next, he cites Lenz v. Lenz, 40 S.W.3d 111 (Tex. AppCSan Antonio 2000);
however, that opinion was recently reversed by the supreme court and no longer supports his argument.
Lenz v. Lenz, 45 Tex. Sup. J. 781; 2002 Tex. LEXIS 75 (June 6, 2002).




                                                      10
                  The right of a parent to unilaterally change the primary, post-divorce residence of a child has

spawned a significant amount of litigation in family courts across the country in recent years. See Edwin J.

(Ted) Terry, Relocation: Moving Forward or Moving Backward?, Tex. Tech L. Rev. 983, 984 (2000).

ACourts that traditionally have taken a very restrictive view of relocation have recently retreated from their

previously entrenched positions against allowing a primary custodian to move to another location with his or

her children.@ Id. at 986. Many states have an articulated policy in favor of frequent and continuous

contact between the child and both parents after the dissolution of the family of origin. Id. at 993. Texas is

among those states. See Tex. Fam. Code Ann. '' 153.001, .251 (West 1996 & Supp. 2002).7 However,

in the context of relocation cases, slavish adherence to such policy ignores the realities of a family that has

been dissolved. After the dissolution of the family, each parent must establish a separate life. And in

today=s society, it is unrealistic to expect that any family, whether intact or not, will remain in one geographic

location for an extended period of time. See Terry, supra, at 1012. AThe high incidence of divorce,


        7
            Section 153.001 provides, in pertinent part:

            (a) The public policy of this state is 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 . . . .

Tex. Fam. Code Ann. 153.001 (West Supp. 2002).

            Section 153.251 provides:
            (b) It is the policy of this state to encourage frequent contact between a child and
                 each parent for periods of possession that optimize the development of a close
                 and continuing relationship between each parent and child.

Tex. Fam. Code Ann. 153.251 (West 1996).

                                                         11
remarriage, second divorce, unpredictability of the employment market, and competing economic factors

are all forces that affect the lives of many families and render the possibility of relocation a condition to be

faced by most.@ Id. In fact, there is Aan emerging trend of recognition by social scientists that the divorced

family is a fundamentally different unit than the marital family and that a child=s circumstances may actually be

improved by a relocation when other positive factors are present.@ Id. at 988-89.

                 The district court found that A[i]t is in the best interest of the child that Susanna Olivarez shall

have the exclusive right to establish the primary residence of the child, without geographical restriction@ and

concluded that A[t]he requested modification is in the best interest of the child.@ At the request of Echols,

the district court made the additional finding that A[i]t will be a positive improvement for the child to move

away from his father in Austin, Texas, to relocate with his mother in Tennessee.@ Echols contends that

Olivarez did not present legally and factually sufficient evidence to support these findings. The evidence

presented at trial demonstrated that Olivarez=s employer significantly valued her work and was

understanding and accepting of Olivarez=s attempts to balance work and family life. The employer was not

in a position to offer Olivarez the type of advancement opportunities in Austin that were available in

Tennessee, and that this was a significant opportunity that would not be available again soon. Further, the

evidence demonstrated that the child would be a direct beneficiary of his mother=s promotion, both in terms

of the financial benefits and in the well-being of his primary caretaker, his mother. There was evidence that

Olivarez would be better able to care for the child in her new position because it offered her additional

flexibility along with her employer=s acceptance of her work ethic regarding work and family life.

Furthermore, the evidence did not demonstrate that Olivarez had a vindictive motive in moving her child


                                                        12
from Texas.8 Her intent was to continue to foster and encourage the child=s relationship with his father by

giving Echols increased amounts of visitation, reducing her own summer visitation, and paying a majority of

the costs incurred in transporting the child to visit his father. And evidence was presented that the alternate

visitation she offered in lieu of the former visitation would provide an adequate basis for preserving and

fostering Echols=s relationship with the child.




                 Echols contends that, at best, this evidence established that the move would be a positive

improvement for and in the best interest of Olivarez. We disagree. As previously stated, Olivarez

presented evidence that the child would directly benefit from the move to Tennessee. Recently, the Texas

Supreme Court has acknowledged the concept of the child=s best interest in the context of the custodial

parent=s happiness. See Lenz, 45 Tex. Sup. J. at 785; 2002 Tex. LEXIS 75, at *17-18. Furthermore,

several courts in other jurisdictions have addressed this concept. Although not dispositive, we find these

discussions instructive and persuasive. See Baures v. Lewis, 770 A.2d 214, 223 (N.J. 1999) (AThat the

interests of the child are closely interwoven with those of the custodial parent is consistent with

psychological studies of children of divorced or separated parents. . . . Since that time, social science

research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is


        8
           This is a factor considered important by many courts in other jurisdictions in determining whether
to permit relocation. See Stout v. Stout, 560 N.W.2d 903, 909 (N.D. 1997) (citing case law in 15 other
states indicating that this factor is considered important in making determination).




                                                      13
good for the child.@); Stout v. Stout, 560 N.W.2d 903, 915 (N.D. 1997) (AThis court considers the child=s

best interests inextricably interwoven with the quality of life of the custodial parent, with whom the child lives

and upon whom the child relies emotionally.@); Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996)

(Court emphasized that Athe interest of the custodial parent and the interests of the child are basically

interrelated, even if they are not always precisely the same.@); Staab v. Hurst, 868 S.W.2d 517, 519 (Ark.

Ct. App. 1994) (AAfter a divorce and an initial custody determination, the determination of the child=s best

interests cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken

into account.@); Long v. Long, 381 N.W.2d 350, 355 (Wis. 1986) (In deciding whether to permit removal,

courts may not Aignore[] the impact of the custodial mother=s well-being on the children and refuse[] to

consider alternative visitation arrangements.@); Cooper v. Cooper, 491 A.2d 606, 612 (N.J. 1984)

(ABecause the best interests of a child are so interwoven with the well-being of the custodial parent, the

determination of the child=s best interest requires that the interest of the custodial parent be taken into

account.@); Henry v. Henry, 326 N.W.2d 497, 499 (Mich. Ct. App. 1982) (Court stated test for

relocation is best interests of new family unit; Aarbitrary imposition of the >best interests of the child= test in all

matters concerning children is illogical at best and cruelly insensitive at worst.@); In re Marriage of Ditto,

628 P.2d 777, 779 (Or. 1981) (AIn many cases, the happiness and well-being of the custodial parent

becomes an ingredient of the welfare of the children.@); Arquilla v. Arquilla, 407 N.E.2d 948, 950 (Ill.

App. Ct. 1980) (Court stated that test is not solely to establish the best interests of the child, but Awhether

the general quality of life for both the custodial parent and the child will be improved by removal.@); In re

Marriage of Lower, 269 N.W.2d 822, 826 (Iowa 1978) (AWhile there is much to be said for the


                                                         14
maintenance of visitation rights by the noncustodial parent . . . the interests of the custodial parent and the

child may be overriding.@); D=Onofrio v. D=Onofrio, 365 A.2d 27, 30 (N.J. Super. Ct. Ch. Div. 1976) (In

considering whether to allow relocation that would require substantial revision of father=s visitation schedule,

court stated, A[i]t is in the context of what is best for that family unit [the children and the custodial parent]

that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be

considered.@).

                 The district court made the following findings of fact:


          9. The opportunity facing Susanna Olivarez is a unique opportunity that has arisen as a
             result of her hard work and continued education and that the child will thrive as a
             result of this opportunity.

        10. There is a realistic opportunity for possession and visitation in lieu of the current
            scheme for the child to continue the relationship with the non-custodial parent.


As indicated previously, the evidence demonstrated that the child will be a direct beneficiary of his mother=s

promotion and that she will continue to place him as a priority in her life. In fact, she will be better able to

care for him. Furthermore, although his visitation with his father will not be as frequent, the visits will be

longer in duration, which could potentially increase the quality of time the child shares with his father and his

father=s family. See D=Onofrio, 365 A.2d at 30. A child=s best interest cannot be determined in a vacuum.

Although consideration of the visitation rights of the noncustodial parent is important, we must primarily

concentrate on the general quality of life for both the child and the custodial parent in assessing whether a

change is positive and in the child=s best interest. Based on the facts of this case, we conclude that the

evidence presented is legally and factually sufficient to establish that the relocation of the child to Tennessee

                                                       15
would be a positive improvement for and in the best interest of the child. Accordingly, we conclude that the

district court had sufficient evidence on which to exercise her discretion and did so appropriately. We

overrule Echols=s second issue.


                                            CONCLUSION

                We affirm the district court=s order.




                                                 __________________________________________

                                                 Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: August 30, 2002

Publish




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