                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00441-CV


IN THE INTEREST OF J.P.M., A
CHILD

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          FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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      Appellant F.M. (Father) and Appellee G.P.M (Mother) entered into an

agreed decree of divorce in December 2001. The decree appointed Father and

Mother joint managing conservators of their child, J.P.M., but gave Mother the

exclusive right to designate J.P.M.’s primary residence. In January 2011, Father

filed a petition to modify the parent-child relationship, seeking appointment as the

person with the exclusive right to establish J.P.M.’s primary residence. Trial was

to the bench, which denied Father’s petition. In a single issue, Father argues

that the trial court abused its discretion by denying his petition to modify


      1
       See Tex. R. App. P. 47.4.
conservatorship because “there is practically no evidence, and the evidence is

certainly insufficient, to support a denial of the requested modification.” We will

affirm.

      Mother initially contends that Father waived his argument for appellate

review because his attorney agreed to both the form and substance of the order

denying the petition to modify. For a judgment to be considered an agreed or

consent judgment such that no appeal can be taken, either the body of the

judgment itself or the record must indicate that the parties came to some

agreement as to the case’s disposition; simple approval of the form and

substance of the judgment does not suffice.          DeClaris Assocs. v. McCoy

Workplace Solutions, L.P., 331 S.W.3d 556, 560 (Tex. App.—Houston [14th

Dist.] 2011, no pet.); Leeper v. Woodrick, No. 02-04-00371-CV, 2005 WL

1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.) (mem. op.).

Father did not waive his right to appeal because the parties did not come to any

agreement regarding the disposition of the petition to modify. The case was—

and continues to be—contested.

      We review the trial court’s modification of managing conservatorship for an

abuse of discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth

2002, pet. denied) (op. on reh’g); see In re A.B.H., 266 S.W.3d 596, 601 (Tex.

App.—Fort Worth 2008, no pet.) (op. on reh’g) (applying standard). A trial court

abuses its discretion if it acts arbitrarily and unreasonably or without reference to

guiding principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Low v. Henry, 221


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S.W.3d 609, 614 (Tex. 2007). Legal and factual sufficiency are not independent

grounds of error in modification cases, but they are relevant factors in deciding

whether the trial court abused its discretion. T.D.C., 91 S.W.3d at 872.

      The family code authorizes a trial court to modify an order that provides for

the terms and conditions of conservatorship if (1) modification would be in the

best interest of the child and (2) the child is at least twelve years old and has

expressed to the court in chambers, as provided by section 153.009, the name of

the person who is the child’s preference to have the exclusive right to designate

the primary residence of the child. Tex. Fam. Code Ann. § 156.101(a)(2) (West

Supp. 2011); see also id. § 153.009 (West 2008). In this case, the trial court did

not file any separate findings of fact and conclusions of law, but it did state in the

final order that it “finds that it would not be in the best interest of the child to

modify primary possession of the child.” Also, the trial court met with J.P.M. and

later stated in a letter to the parties that it “realize[s] that [J.P.M.] wants to live

with his father.” Therefore, like Mother and Father, we will focus our analysis on

the best-interest prong.2




      2
       To the extent that the trial court’s statement in the final order that
modification is not in J.P.M.’s best interest is a finding of fact, it is reviewable for
legal and factual sufficiency of the evidence. See Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). To
the extent that the statement is not a finding of fact, a complete reporter’s record
was filed, and Father may challenge the sufficiency of the evidence to support
the implied best-interest finding. See Sixth RMA Partners, L.P. v. Sibley, 111
S.W.3d 46, 52 (Tex. 2003); Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex.
App.—Fort Worth 2010, no pet.).

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      A     court’s   primary   consideration    when     determining     issues   of

conservatorship shall always be the best interest of the child. Tex. Fam. Code

Ann. § 153.002 (West 2008). Courts may use a nonexhaustive list of factors to

determine the child’s best interest. Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976); T.D.C., 91 S.W.3d at 873. Those factors include:

      (A)    the desires of the child;

      (B)    the emotional and physical needs of the child now and in the
             future;

      (C)    the emotional and physical danger to the child now and in the
             future;

      (D)    the parental abilities of the individuals seeking custody;

      (E)    the programs available to assist these individuals to promote
             the best interest of the child;

      (F)    the plans for the child by these individuals or by the agency
             seeking custody;

      (G)    the stability of the home or proposed placement;

      (H)    the acts or omissions of the parent which may indicate that the
             existing parent-child relationship is not a proper one; and

      (I)    any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 371–72 (citations omitted). Other factors to consider in

modification suits include the child’s stability and the need to prevent constant

litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

      Here, Father testified that he filed the petition to modify because J.P.M.

had pleaded with him to do so on several occasions. Father opined that it was in

J.P.M.’s best interest to grant the petition to modify because Father is “clearly a


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better parent” than Mother. According to Father, he has a technical degree in

mechanical engineering; he can better help J.P.M. (whose grades had recently

suffered) with his homework; and he has “more knowledge of what it[’]s like to be

a fifteen year old being raised in American culture.” Although Father currently

leaves for work five days a week at 6:00 a.m., he explained that if J.P.M. lived

with him, he could adjust his schedule so that he leaves for work a little after 8:00

a.m. and returns in time to meet J.P.M.         Father described Mother, who is

originally from Colombia, as an “average mother”; he declined to describe her as

a “bad mother.” Father acknowledged that Mother lives only about 500 feet from

his residence, that he goes to the gym after work three to four times a week for

over an hour, that he had taken J.P.M. out of school three times without

permission and once for an office Christmas party, that he could not name any of

J.P.M.’s teachers, and that he had bought J.P.M. a dirt bike and a .22 rifle, which

Father kept locked away.

      Mother opined that it is in J.P.M.’s best interest to live with her.      She

testified that she is around children all day because she works as a teacher for

“Child Care Associate”; that she has worked in a “Head Start” program for ten

years; that she has taken English lessons on and off and has no difficulty reading

English; that she is a United States citizen; and that she permits J.P.M. to visit

Father even when J.P.M. is not scheduled to do so. Mother explained that she

set up tutoring for J.P.M., that she told J.P.M.’s teachers to contact her with any

concerns they have about J.P.M.’s schoolwork, that she registered J.P.M. for


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soccer, and that she helped J.P.M. sign up for band. Mother expressed concern

that J.P.M. was too young to learn how to ride a dirt bike or to use a gun, and she

testified that Father had a temper, used bad language around J.P.M., was a “very

aggressive” person, and had once left a gun on a night table at his house when

J.P.M. was there.

         Having reviewed the short record, we conclude that the trial court had

sufficient evidence upon which to determine that it would not be in J.P.M.’s best

interest to modify the conservatorship such that Father would have the exclusive

right to designate J.P.M.’s primary residence. Accordingly, we hold the trial court

did   not    abuse   its   discretion   by   denying   Father’s   petition   to   modify

conservatorship. See, e.g., In re R.T.H., 175 S.W.3d 519, 521–22 (Tex. App.—

Fort Worth 2005, no pet.) (holding that conflicting evidence in modification

proceeding supported trial court’s implied finding that denial of petition to modify

was in child’s best interest and that trial court did not abuse its discretion by

denying petition). We overrule Father’s sole issue and affirm the trial court’s

order.




                                                       BILL MEIER
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: June 28, 2012




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