Opinion filed July 17, 2014




                                      In The


        Eleventh Court of Appeals
                                ______________

                              No. 11-13-00375-CV
                               ______________
                IN THE INTEREST OF M.C.M., A CHILD


                     On Appeal from the 266th District Court
                              Erath County, Texas
                        Trial Court Cause No. CV31544


                      MEMORANDUM OPINION
       Appellant, Ryan Chase Mohler, appeals an order in which the trial court
modified the parent-child relationship in relation to his son, M.C.M. He contends
that the trial court abused its discretion when it imposed a geographical restriction
on his right to determine the child’s primary residence and that it erred when it
entered an order that contained a different restriction from the court’s oral
pronouncement. For the reasons that follow, we reverse and remand.
       Ryan and Beathaney Mohler were divorced on May 30, 2012, and both lived
in Stephenville. They were appointed as joint managing conservators of their son,
M.C.M. Ryan had the exclusive right to designate the primary residence of the
child without regard to geographic location. Ryan and Beathaney agreed that
Beathaney would have possession of M.C.M. every Sunday through Tuesday and
every other Friday through Tuesday. Other than holidays, Ryan had possession at
all other times.
      The following summer, Ryan enrolled M.C.M. in kindergarten in the
Stephenville Independent School District. On August 13, 2013, however, Ryan
learned that he had a new job and notified Beathaney that he intended to move with
the child to San Angelo. Beathaney filed a petition on August 16, 2013, to modify
the parent-child relationship.   She asked the trial court to restrict the child’s
primary residence to Erath County. Beathaney also requested temporary orders
that would restrict the residence of the child to Erath County.
      On August 19, 2013, the trial court granted Beathaney’s application for a
temporary restraining order and ordered that Ryan could not withdraw M.C.M.
from the school “where the child is presently enrolled.” On August 17, 2013, two
days before the entry of the temporary restraining order, Ryan told Beathaney that
he had enrolled M.C.M. in a San Angelo school. On Tuesday August 20, 2013,
Ryan moved to San Angelo. That same day, Beathaney spoke to a school official
and determined that M.C.M. was still enrolled in Stephenville ISD. On Friday,
August 23, 2013, Beathaney and Ryan met between Stephenville and San Angelo
so that Beathaney could begin her visitation period; it was at this point that Ryan
was served with notice of the temporary restraining order and the petition to
modify.
      According to Ryan, Beathaney agreed to meet again that Sunday and return
M.C.M. to Ryan early so that M.C.M. could start school in San Angelo on
Monday. But because the decree provided Beathaney with possession of M.C.M.
until Tuesday at 1 p.m., Beathaney took M.C.M. to school in Stephenville that
Monday and Tuesday. On Wednesday, August 28, 2013, the parties appeared for a
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hearing on the temporary orders. A hearing was not held, but a final hearing was
set for October 2, 2013. M.C.M. returned to San Angelo with Ryan and began
kindergarten in San Angelo the following day.
      At the final hearing in October, Ryan and Beathaney each testified that the
other was a good parent. During the marriage, Ryan, Beathaney, and M.C.M. lived
in a house across the street from a ranch owned by Ryan’s parents. Ryan worked
for his parents, and in return, they provided him with a house, a vehicle, and auto
insurance. For additional money, Ryan was also “riding horses for the public.” He
said that he “was scraping by” on this income. Ryan found a job working for
Laredo Petroleum in San Angelo. The job paid more and also provided health
insurance to him and his family. Ryan testified that San Angelo is about 180 to
200 miles away from Stephenville. Although Ryan had lived in Stephenville for
the previous fourteen years, he had lived in San Angelo as a child, and he had
friends and family who lived there. Ryan’s two best friends, his grandparents,
cousins, and two sets of aunts and uncles lived in San Angelo, and Ryan’s parents
planned to move there as well to be closer to M.C.M.
      At the hearing, Ryan told the trial court that he was concerned about
Beathaney’s ability to care for M.C.M. because she was not “involved in his
schooling very much at all” and because of health problems associated with her
pregnancy. M.C.M. went to preschool on Monday, Wednesday, and Friday each
week, and Ryan said that his teacher “regularly approached” him with her concern
that M.C.M. was missing “just about every single Monday.” M.C.M.’s class had
an agenda each week, and his teacher explained that missing Mondays made it
hard for M.C.M. “because he would miss the very beginning stage.” Beathaney
had possession of M.C.M. every Monday. Ryan also said that Beathaney struggled
with getting M.C.M. to school with the “correct stuff” when there was a school
activity. Ryan testified that he was concerned that Beathaney had kidney stones
                                         3
and was having complications during her pregnancy. According to Ryan, he
worked with Beathaney while she was on “strict” bed rest, and he took M.C.M. to
visit her while she was hospitalized during her period of possession.
      Beathaney testified that the only days that M.C.M. missed school were when
he was sick. She also testified about a time when M.C.M. had his tonsils and
adenoids removed and was later hospitalized again after he began to vomit blood.
Beathaney did not say how long M.C.M. was in the hospital, but she pointed out
that Ryan never came to visit. Beathaney said that she took possession of M.C.M.
during “every bit” of time designated for her in the divorce decree but that her
husband returned M.C.M. early when she was hospitalized for kidney stones.
Beathaney agreed that Ryan brought M.C.M. to visit her while she was
hospitalized. Beathaney believed that residing in Stephenville was in M.C.M.’s
best interest because “[t]his is where he’s been his whole life.”
      The possession schedule in the decree provided that Ryan and Beathaney
were to each have possession of M.C.M. approximately fifty percent of the time.
Beathaney wanted to continue the previously agreed-to visitation schedule and
proposed that Ryan’s parents take the periods of possession in which Ryan is
unable to visit M.C.M. Ryan proposed that they instead follow the standard
possession order for parents who live more than 100 miles apart except that
Beathaney would have M.C.M. on the second, fourth, and fifth weekends instead
of on the first, third, and fifth weekends of each month. Ryan also requested that
they alternate weeks of possession during the summer. After Ryan moved to San
Angelo, he and Beathaney met in Bangs, which is about halfway between San
Angelo and Stephenville, but a little closer for Beathaney.
      Ryan and Beathaney both remarried in the month leading up to the final
hearing, and they are each expecting their second child. Ryan’s wife, Emily,
testified that they were “struggling” financially in Stephenville. She also said that
                                          4
they were more comfortable in San Angelo and that they all had health insurance
now. They received daily reports from M.C.M.’s teacher in San Angelo who told
Ryan and Emily that M.C.M. was doing wonderfully and had “no poor behavior.”
She also said that M.C.M. is “a very loving, happy kid”; has been doing “great in
school”; and has “several friends.” According to Emily, their greatest concern was
ensuring that M.C.M. could visit his mother on a regular and consistent basis
because “he loves his mom very much.” Ryan goes to school functions and has
even bought and delivered food for a teacher luncheon. Ryan and Emily share
responsibility for getting M.C.M. to and from school, and Emily cares for M.C.M.
when Ryan is working. Ryan testified that this was the same arrangement that had
existed while he was working in Stephenville.           Beathaney’s husband did not
testify.
       At the close of the hearing, the trial court told the parties that it believed that
a geographic restriction to Erath and contiguous counties was in the best interest of
the child. The trial court asked Beathaney’s attorney to prepare an order to that
effect, and the order was submitted along with a motion to sign the order. Ryan
filed objections to the proposed order, and the trial court held a hearing on the
motion. Ryan’s objections were based upon the fact that, in the trial court’s oral
pronouncement, the residence restriction permitted not only residence in Erath
County but also in “contiguous counties.” Further, the written order required
M.C.M. to be “re-enrolled and remain within the Stephenville [ISD],” a condition
not mentioned in the oral pronouncement. After reading the record of its remarks
from the prior hearing, the trial court explained, “[W]hat I’m saying is you’re not
changing the deal on mom or the child, which has been working for the . . . first
five years of the child’s life and it’s going to continue to work.” The court
explained that residing outside Erath County “would destroy the fifty-fifty working
relationship that [Ryan and Beathaney] had in place,” and the court ruled, “I’m
                                            5
going to grant the motion to sign the order as it has been presented to me.” It is
from this order that Ryan appeals.
       We first address Ryan’s second issue on appeal. In that issue, he complains
that the trial court erred when it granted Beathaney’s motion to sign the written
order because the geographic restriction contained in that proposed order did not
reflect the oral pronouncement of the trial court.
       The trial court retains plenary power to “vacate, modify, correct, or reform
the judgment within thirty days after the judgment is signed.”                TEX. R.
CIV. P. 329b(d). If the written judgment does not reflect the trial court’s oral
pronouncement, parties may file a motion to modify, correct, or reform the
judgment to accurately reflect the trial court’s decision.             See TEX. R.
CIV. P. 329b(g).      “During this period, the trial court’s power to modify its
judgment is virtually absolute.” Stallworth v. Stallworth, 201 S.W.3d 338, 349
(Tex. App.—Dallas 2006, no pet.). But before the trial court signs the judgment, it
“can change the decision previously announced without any formal order setting it
aside.” Kostura v. Kostura, 469 S.W.2d 196, 198 (Tex. Civ. App.—Dallas 1971,
writ ref’d n.r.e.).
       At the hearing on Beathaney’s motion, the trial court explained that it was
further limiting the child’s primary residence to Erath County and not to the
contiguous counties and that it was also ordering the child to be enrolled in
Stephenville ISD so that the parties could continue “the fifty-fifty working
relationship that they had in place.” Because the trial court can modify or change
its previously announced ruling at any time prior to signing the judgment, it was
not error to order a different geographic restriction than the one orally pronounced.
See id. Accordingly, Ryan’s second issue is overruled.
       In his first issue, Ryan challenges the factual sufficiency of the evidence to
support the trial court’s finding that a geographic restriction was in the child’s best
                                          6
interest and argues that the trial court abused its discretion when it modified the
divorce decree to impose a geographic restriction on his right to designate the
primary residence of the child.
      We review a trial court’s decision to modify conservatorship for an abuse of
discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court
abuses its discretion when it acts arbitrarily or unreasonably or when it fails to
correctly analyze or apply the law. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985). It is not an abuse of discretion if some evidence of a
substantive and probative character exists to support the trial court’s decision.
Bates v. Tesar, 81 S.W.3d 411, 424–25 (Tex. App.—El Paso 2002, no pet.). The
factfinder is the sole judge of the credibility of the witnesses and the weight to be
given to the testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
Because the trial court is in the best position to observe the demeanor of the
witnesses, it is given great latitude in determining the child’s best interest. In re
Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex. App.—San Antonio 2011,
pet. denied).
      Challenges to the sufficiency of the evidence are not independent grounds of
error in custody determinations but are relevant factors in assessing whether the
trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—
Fort Worth 2002, pet. denied). In a suit to modify the parent-child relationship, the
traditional sufficiency standards of review overlap the abuse of discretion standard,
and appellate courts apply a two-prong analysis: (1) whether the trial court had
sufficient information upon which to exercise its discretion and (2) whether the
trial court erred in applying its discretion. Zeifman v. Michels, 212 S.W.3d 582,
588 (Tex. App.—Austin 2006, pet. denied); Child v. Leverton, 210 S.W.3d 694,
696 (Tex. App.—Eastland 2006, no pet.). In a factual sufficiency challenge, we
consider all of the evidence and set aside the findings only if they are so contrary
                                          7
to the overwhelming weight of the evidence as to be clearly wrong or manifestly
unjust, conscience-shocking, or clearly biased.       Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
       A trial court may modify an order in a suit affecting the parent-child
relationship if the circumstances have materially and substantially changed and if
modification would be in the best interest of the child. TEX. FAM. CODE ANN.
§ 156.101(a) (West 2014).      Both parties concede that the circumstances have
materially and substantially changed and that the only issue is whether the
evidence supports the trial court’s ruling that a geographic restriction is in the best
interest of the child.
       We review a trial court’s best-interest finding by using the Holley factors.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These non-exhaustive
factors include: (1) the desires of the child; (2) the emotional and physical needs of
the child now and in the future; (3) the emotional and physical danger to the child
now and in the future; (4) the parental abilities of the individuals seeking custody;
(5) the plans for the child by these individuals; (6) the stability of the home; (7) the
acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one; and (8) any excuse for the acts or omissions of the
parent. Id.
       In addition, when the trial court’s finding involves relocation, we consider
the factors identified by the Texas Supreme Court in Lenz, which include the
following: (1) the relationship with and presence of extended family; (2) the
presence of friends; (3) the presence of a stable and supportive environment; (4)
the custodial parent’s improved financial situation and ability to provide a better
standard of living for the child; (5) the positive impact on the custodial parent’s
emotional state, with beneficial results to the child; (6) the noncustodial parent’s
right to have regular and meaningful contact; (7) the ability of the noncustodial
                                           8
parent to relocate; and (8) the ability of the noncustodial parent to adapt his work
schedule to the child. Lenz v. Lenz, 79 S.W.3d 10, 15–19 (Tex. 2002).
      In his challenge to the factual sufficiency of the evidence, Ryan cites to the
court’s analysis in Lenz and argues that the Lenz factors “clearly weigh in favor of
allowing [Ryan] to stay in San Angelo with the child.” Beathaney argues that
Ryan’s reliance on the analysis in Lenz is misplaced because the court of appeals
was reviewing the legal sufficiency of the evidence to support a jury’s finding
while Ryan raised a factual sufficiency challenge to the trial court’s best-interest
finding. According to Beathaney, “[m]uch more instructive than the Lenz analysis,
in this case, are the opinions issued this year by two courts of appeals reviewing
for an abuse of discretion, trial court decisions to modify a prior court order by
imposing geographic restrictions on the primary residence of [the child.]” See
Downey v. Downey, No. 03-12-00037-CV, 2014 WL 1362642 (Tex. App.—Austin
April 1, 2014, no pet.) (mem. op.); In re C.R.J., No. 06-13-00053-CV, 2014 WL
199209 (Tex. App.—Texarkana Jan. 17, 2014, no pet.) (mem. op.).
      In Downey, the parents were joint managing conservators, and the father had
the right to designate the primary residence of their two children. Downey, 2014
WL 1362642, at *1. After the divorce, the father’s girlfriend began living with
him, and the father quit his job to go back to school. Id. at *4. When the father
decided to move closer to his school, the mother filed a petition to modify and
asked the court to impose a geographic restriction to prevent the father from
moving the children thirty minutes away from their mother, grandparents, and
schools. Id. at *1, *4. In affirming the imposition of the geographic restriction,
the appellate court referenced evidence in the record about the parties’ motives for
the relocation and the parties’ change of residences since the divorce and noted that
the trial court could consider how relocation would affect the children’s stability.
Id. at *4. However, the evidence that related to stability, changes in residence
                                         9
since the divorce, and the parties’ motives for and against the move is not detailed
in the Downey court’s opinion. Even so, the trial court could have determined
from the facts outlined there that the limited financial and emotional improvement
that would result from a shorter commute was outweighed by removing their
mother, extended family, and friends from the daily life of the children. Evidence
that relocation would have a negative effect on the children’s stability would
further support this conclusion.
      In C.R.J., the parents were joint managing conservators, and the mother had
the right to designate their child’s primary residence. C.R.J., 2014 WL 199209, at
*1. The parties lived in Atlanta, Texas. Id. When the mother decided to move to
New Mexico, the father petitioned the trial court and asked it to impose a
geographic restriction. Id. The father often missed visitation times because of his
work schedule and was able to arrange last-minute visits to make up for the missed
time because the parties lived in the same town. Id. at *8. In Atlanta, the child
lived within twenty miles of his maternal great-grandparents, both sets of
grandparents, as well as aunts, uncles, and cousins, and the child had “regular
contact” with these extended family members. Id. at *2, *5. The child was
involved in soccer and baseball, and his grandfather coached his soccer team. Id.
at *8, n.11. There was evidence that the child played sports, liked his school in
Atlanta, and was a good student and that the child had no family or any ties to New
Mexico. Id. at *5. The mother wanted to move 1,042 miles away because her
husband would earn more money and because they would live “in a two bedroom,
two bath apartment in a nice neighborhood.” Id. at *7. The mother proposed that
the father visit four times each year during extended breaks from school because it
was too far for C.R.J. to travel. Id. at *5, *8. She estimated that it would cost
approximately $220 to $250 for each roundtrip. Id. at *5.


                                        10
      The court of appeals affirmed the trial court’s finding that a geographic
restriction within 100 miles of Atlanta, Texas, was in the best interest of the child
and reasoned that relocation to New Mexico would remove the child from the
father’s daily life, that visitation would be difficult, that the father could no longer
make up missed periods of visitation, and that the child would no longer see his
extended family members on a daily or weekly basis. Id. at *8. These cases are
examples of the type of evidence that is necessary to support a decision that a
geographic restriction is in the best interest of the child.
      Beathaney contends that the evidence supports the geographic restriction
because Ryan wanted to move to San Angelo for purely financial reasons and
because the move “would interfere with M.C.M.’s time and schedule with his
mother.” The fact that relocation would “interfere” with the previously agreed-to
visitation schedule is not a factor in determining the best interest of the child in the
context of a proposed relocation. Instead, courts are to consider whether the
noncustodial parent would be deprived of the “right to have regular and
meaningful contact.” Lenz, 79 S.W.3d at 18.
      Furthermore, the custodial parent’s improved financial situation and the
effect on the noncustodial parent’s right to have regular and meaningful contact are
only two of several factors courts balance in the fact-driven analysis to determine
whether a geographic restriction is in the best interest of the child. See Lenz, 79
S.W.3d at 15–16; see also FAM. § 156.101(a). In a factual sufficiency challenge, as
raised in this case, we must “consider and weigh all of the evidence” to determine
if it is so against the great weight and preponderance of the evidence—even if “the
record contains some ‘evidence of probative force’ in support of the verdict.” In re
King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).
      As set out above, the first two Lenz factors require us to consider the child’s
relationship with and the presence of extended family and friends. M.C.M.’s
                                           11
maternal grandmother apparently lives in or near Stephenville, but there is no
testimony about where she lived or the nature of her relationship with M.C.M.
Ryan testified that his parents were involved in M.C.M.’s daily life and that they
were moving to San Angelo to be closer to M.C.M. Ryan lived in San Angelo
when he was young, and his two best friends, his grandparents, his cousins, and
two sets of aunts and uncles also live in San Angelo.            M.C.M. has had a
relationship with Ryan’s extended family in San Angelo his whole life. M.C.M.
had been attending kindergarten in San Angelo for more than a month at the time
of the hearing; Emily testified that M.C.M. was doing well, and Ryan said that
M.C.M. had “lots of friends.” When asked whether she thought it was traumatic
for M.C.M. to go to kindergarten in Stephenville for two days and then transfer to
an elementary school in San Angelo, Beathaney said that MCM “has friends here
and he’s already previously gone to school with them,” but there was no testimony
about M.C.M. playing sports, being involved in church, having neighborhood
friends, or having any ties to Stephenville other than Beathaney. While Beathaney
argues that the evidence shows that M.C.M “got along well with his stepfather,”
we find no such evidence in the record.
      The third factor requires us to consider the presence of a stable environment,
and the parties agree that both parents are stable and supportive. The fourth and
fifth factors concern the custodial parent’s improved financial and emotional state.
Ryan and Beathaney both acknowledge that Ryan’s financial situation would
improve, and from evidence of Ryan’s family and friends living in San Angelo and
his ability to better provide for his new wife and second child, it is reasonable to
infer that Ryan’s emotional state would benefit from the move.
      The final three factors relate to the noncustodial parent.     These factors
require that we consider Beathaney’s right to have regular and meaningful contact
with M.C.M., her ability to relocate, and her ability to adapt her work schedule.
                                          12
Beathaney argues that the “previously agreed-to possession and access schedule,
which worked well for M.C.M. and for the parties, only worked if the parties lived
close to one another.” Conspicuously absent from the record, however, is any
evidence about Beathaney’s inability to relocate or her inability to adapt her
schedule. Beathaney testified that the previous possession schedule was based on
her work schedule, that she is no longer working, and that she may not return to
work after her baby is born because “it would just all depend on how much time it
would take away from [her] time with [her ] children.”
      Ryan proposed that he and Beathaney follow the standard possession
schedule for parents who live more than 100 miles apart with two small changes.
Ryan worked during the first and third weekends of each month and did not want
to work on weekends when M.C.M. would be in San Angelo, so he instead
proposed that Beathaney have possession on the second, fourth, and fifth weekends
rather than the standard first, third, and fifth weekends.     Ryan additionally
proposed that they alternate weeks of possession during the summer instead of
M.C.M. spending the first half with one parent and the second half with the other
parent.   Beathaney does not direct us to any evidence or explain how this
arrangement would deprive her of the right to have regular and meaningful contact.
      We agree with Beathaney that relocation to San Angelo would indeed
“interfere” with her ability to have possession of M.C.M. on school days and that
the existing possession arrangement “only worked if the parties lived close to one
other.” We cannot tell from the record whether Beathany could relocate to San
Angelo or the San Angelo area and achieve the desired result. Beathany does not
work outside the home. Her husband, M.C.M.’s stepfather, however, is employed.
Beathany’s ability to relocate to San Angelo would seem to be dependent upon
whether her husband had the ability to relocate to San Angelo or the San Angelo
area. But Beathaney offered no evidence about her husband’s job, the nature of his
                                        13
work, his ability to adapt his schedule, or his ability to relocate so that Beathany
could continue the agreed-upon possession schedule or arrange a similar schedule.
      Without evidence of M.C.M.’s ties to Stephenville and the extent, if any, of
M.C.M.’s relationship with any extended family in Stephenville, and absent
evidence about M.C.M.’s relationship with his stepfather and the stepfather’s
ability to relocate or adapt his work schedule, the trial court did not have sufficient
information upon which to determine that a geographic restriction was in the
child’s best interest. Because the evidence is factually insufficient to support the
trial court’s finding that a geographic restriction is in M.C.M.’s best interest, we
must conclude that it was an abuse of discretion to modify the parent-child
relationship to impose a geographic restriction to Erath County and to order that
M.C.M. be enrolled in Stephenville ISD. Ryan’s first issue on appeal is sustained.
      Accordingly, we reverse the order of the trial court, and we remand the
cause for a new hearing to determine whether it is in the child’s best interest to
impose a geographic restriction on Ryan’s right to designate M.C.M.’s primary
residence.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


July 17, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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