                                    NO. 07-09-0032-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                  OCTOBER 14, 2009
                           ______________________________

                              In the Interest of A.S., A Child
                           ______________________________

               FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY;

            NO. D-1-FM-04-008035; HON. LORA LIVINGSTON, PRESIDING
                        ______________________________

                                       Opinion
                           ______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Andrea Hayes (Hayes), the mother of A.S., appeals from an order of the trial court

restricting the geographic location of the child’s primary residence. She contends that the

order 1) violates the Family Code, 2) violates her constitutional right to travel, 3) violates

her constitutional right to raise her child as she sees fit, and 4) fails to protect her safety

and well being as a victim of family violence. We affirm.

       Background

       Hayes moved to Austin, Texas from Kansas City, Missouri in 2001 to attend college.

There she met Christopher Sosa (Sosa), and the two decided to live together in December

of 2001. During that period, Hayes fell victim to physical abuse committed by Sosa. The
record discloses that his aggression against Hayes resulted in one or more criminal

convictions. Eventually, Hayes left him but not before giving birth to A.S.

      Upon initiating suit to determine issues of custody and the like, Hayes was

designated the child’s sole managing conservator. However, the trial court restricted her

ability to choose the boy’s residence to locales anywhere within Travis County and those

counties “contiguous” to it. The limitation was imposed to afford Sosa, who was appointed

possessory conservator, opportunity to see his son. That limitation forms the basis of the

dispute before us because Hayes hoped to move back home to Kansas City, Missouri.

      Issue 1 - Statutory Violation

      Via her first issue, Hayes asserts that the trial court could not lawfully impose the

aforementioned restriction because it had appointed her sole managing conservator and,

as such, she had the exclusive authority to select the child’s primary residence. We

overrule the issue.

      It is true, as Hayes suggests, that the legislature specified that a trial court could

geographically restrict a child’s residence when his parents act as joint managing

conservators. TEX . FAM . CODE ANN . §153.134(b)(1)(A) (Vernon Supp. 2009). Yet, we are

cited to no statute that expressly denies like authority to a trial judge when a particular

parent is awarded the status of sole managing conservator. Nor did our own research

uncover any. Indeed, not even §153.132(1) of the Family Code can be read to do so

despite providing that a sole managing conservator has the exclusive right to “designate

the primary residence of the child.” Id. §153.132(1) (Vernon 2008). This is because that

statute contains the preface “[u]nless limited by court order.” Id. And, by including that



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phrase in §153.132, the legislature made it clear that the itemized rights were not absolute

but rather subject to limitation.

       Other provisions of the Family Code also guide our resolution of the point. The first

is that declaring the State’s public policy. Via §153.001, the legislature said that:

       [t]he 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;
       (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.

Id. §153.001(a).

Another reads:

       [t]he best interest of the child shall always be the primary consideration of the
       court in determining the issues of conservatorship and possession of and
       access to the child.

Id. §153.002.

That the desire of a sole managing conservator to move away from Texas may affect

“issues of . . . access” is beyond question. So too does it implicate public policy seeking

to “assure that children . . . have frequent and continuing contact with parents . . .” and

“encourag[ing] parents to share in the rights and duties of raising their child after . . . [they]

have separated or . . .” divorced. Indeed, it was the former that led the court in Sanchez

v. Sanchez, No. 04-06-0469-CV, 2007 Tex. App. LEXIS 5166 (Tex. App.–San Antonio July

3, 2007, pet. denied) to recognize that residency restrictions may be imposed upon a sole

managing conservator if warranted by the child’s best interests. Id. at *8. Given the




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preface to §153.132, the State’s public policy, and the need to protect the child’s best

interests, we see no reason to deviate from Sanchez and, therefore, disagree with Hayes.

       Issues Two and Three – Constitutional Violation

       In her next two issues, Hayes asserts that the geographic restriction at bar violated

her constitutional rights. However, these contentions were not raised below. Thus, the

issues were waived and are overruled. See Morgan v. Morgan, 254 S.W.3d 485, 490 n.1

(Tex. App.–Beaumont 2008, no pet.) (stating that constitutional claims in family law cases

must be preserved); Hollifield v. Hollifield, 925 S.W.2d 153, 156-57 (Tex. App.–Austin

1996, no writ) (stating that the failure to apprise the court of an equal protection argument

waived the issue on appeal).

       Issue Four – Protective Order

       Finally, Hayes asserts that the trial court failed to abide by §153.004(d)(2) of the

Family Code and rendered a possession order protecting her safety and well being given

her status as a victim of family violence. We overrule the issue.

       The record currently before us fails to reveal that the purported omission was

brought to the trial court’s attention as required by Texas Rule of Appellate Procedure

33.1(a)(1). This is of particular importance since the trial judge afforded both litigants

opportunity to comment about her decision before recessing. So too was the judge under

the belief (as evinced by her own utterance to both counsel at trial) that no motions for a

protective order were pending. Despite these circumstances, Hayes did not mention

§153.004(d)(2) to the trial court. Nor did she allude to the need to enter a protective order

of the type encompassed by §153.004(d)(2). Because Hayes remained silent when given



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the chance to say something about the relief now sought, we conclude that this issue was

waived as well.

       In sum, the record contains some sad occurrences, many of which happened in the

presence of A.S. Indeed, Sosa admitted at trial to being physically abusive. Other

testimony not only bore this out but also indicated that his unacceptable behavior has

befallen one or more women after Hayes left. Yet, on appeal, he attempts to minimize his

conduct. That is hardly the type of role model to which A.S. should be exposed. Abusing

one’s spouse or partner is simply wrong. Nonetheless, we cannot say that the trial court

abused its discretion in entering the orders that it did, and because it did not, we must stay

our hand.

       Accordingly, the order of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice




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