                                 NO. 07-10-0110-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                MARCH 29, 2011
                         _____________________________

                          In the Interest of C. M. G., A Child
                         _____________________________

            FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY;

       NO. D-1-FM-02-005140; HONORABLE RHONDA HURLEY, PRESIDING
                       _____________________________

                                    Opinion
                         _____________________________


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

      Kristen Walsh Pfeiffer appeals from an order of the trial court denying her request

to modify the parent/child relationship with her daughter C.M.G. She sought to modify

the geographic restriction requiring the child to live within Travis County or counties

contiguous to it and permit her to move the child to Massachusetts to accommodate her

current husband’s employment. The trial court denied both her request and motion for

new trial founded upon newly discovered evidence. Kristen considered those decisions

to be instances of abused discretion and so argues via four issues. We disagree.

      Background

      Kristen and Francis (Frank) Gavin were divorced in 2003 and had only one child,

C.M.G., during the marriage. The youth was almost two years old at the time of the
divorce. Both Kristen and Frank remarried and had children with their new spouses. It

is unquestioned that both parents love C.M.G. and, though Kristen was granted primary

custody in the divorce decree and the right to designate the child’s primary residence,

the parties cooperated in caring for the child until 2009. During that year, Kristen’s

husband, Ken Pfeiffer, lost his job in Austin, searched for employment for three months,

and eventually accepted a postion in Massachusetts. There he now resides and returns

periodically to Austin to visit his family.

       Applicable Authority

       We review the trial court’s order under the standard of abused discretion. In re

C.R.O., 96 S.W.3d 442, 446 (Tex. App.–Amarillo 2002, pet. denied). Per that standard,

we cannot interfere with the decision so long as some evidence of a substantive and

probative character supports it and the ruling comports with the law. Id. at 447. Given

this standard of review, it is of little import, in the first instance, that evidence appeared

of record supporting a different decision.        Nor can we simply accept the evidence

iterated by appellant and use it as basis for changing the trial court’s ruling. Rather, the

onus lies with the party attacking the decision to establish that the decision was

arbitrary, unreasonable, or a deviation from guiding rules and principles. Only then can

it be said that discretion was abused.

       Moreover, when, as here, the dispute actually concerns the tenor of the evidence

presented to the trial court, appellant’s interests are best served by explaining to us why

no evidence supported the decision or why any evidence that could be said to support it

lacks credence or probative value. Doing that not only assists the reviewing court in




                                              2
addressing the task before it but also evinces true recognition of and compliance with

the standard of review.

       Next, one attempting to modify an order establishing conservatorship,

possession, and access to a child must show that 1) there has been a material and

substantial change in the circumstances, and 2) the modification would be in the best

interest of the child. TEX. FAM. CODE ANN. §156.101(a) (Vernon Supp. 2010). Here, the

child’s father did not dispute that a material and substantial change of circumstances

occurred. Rather, the dispute concerned the child’s best interest.

       With regard to the child’s interest, we note that the public policy of this state is 1)

to assure that children 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 marriage has been dissolved. Id. §153.001(a)

(Vernon 2008). Such policy concerns weigh heavily in assessing whether to modify

geographic restrictions placed on the child’s residence. And, in assuring that those

concerns are appropriately addressed, the trial court may consider numerous indicia

such as 1) the child’s relationship with extended family, 2) the presence of friends, 3)

the presence of a stable and supportive environment for the child, 4) the custodial

parent’s improved financial situation, 5) the positive impact on the custodial parent’s

emotional and mental state and its beneficial impact, if any, on the child, 6) the

noncustodial parent’s right to have regular and meaningful contact with the child, 7) the

ability of the noncustodial parent to relocate, 8) the ability of the noncustodial parent to

adapt his work schedule to the child, and 9) the health, education, and leisure



                                              3
opportunities available to the child. Lenz v. Lenz, 79 S.W.3d 10, 15-16 (Tex. 2002); In

re Z.N.H., 280 S.W.3d 481, 486-87 (Tex. App.–Eastland 2009, no pet.).

        Application of Authority

        We readily acknowledge the presence of evidence indicating that Kristen’s lot

would improve if she was allowed to be with her husband in Massachussetts. And, it

can be said that by enhancing Kristen’s interests, those of her children could be

enhanced as well.1 See Echols v. Olivarez, 85 S.W.3d 475, 481 (Tex. App.–Austin

2002, no pet.) (recognizing that the child’s interests can be intertwined with those of the

custodial parent).2 Also of record is evidence tending to suggest that a move would not

be detrimental to C.M.G.’s interest for she will be with the family unit, be by good

schools, and have access to other relatives and the like. Yet, that was not the only

evidence before the trial court.

        The record before us also shows that 1) Ken’s education and training

(mechanical engineering) qualified him for multiple jobs, not simply those in the

particular field of interest he opted to pursue; 2) he accepted a job in Massachusetts


        1
          While Kristen notes other beneficial factors such as her husband’s increased salary, due to the
higher cost of living and higher taxes in Massachusetts, Ken’s employment with a startup company whose
financial future is not certain, and the placement of their home on the market even before Ken lost his job
and its failure to sell, there is room for disagreement as to whether that it falls in Kristen’s favor. The
increased salary will supposedly allow her to remain a stay-at-home mother but she has been a stay-at-
home mother since her second child was born and she had no plans to obtain a job in the foreseeable
future, even if Ken’s current job does not last. There is also mention of the good schools in the area
where they plan to live, but the child currently attends a “blue-ribbon” school in Austin.
        2
         Kristen argues that we are bound by a statement in the Echols opinion to the effect that “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.” Echols v. Olivarez, 85 S.W.3d
475, 482 (Tex. App.–Austin 2002, no pet.). In that case, the trial court found there to be no abuse of
discretion in lifting a geographical limitation because there was evidence that the child would be a direct
beneficiary of her mother’s promotion which would allow the mother to be better able to care for the child.
Id. However, that opinion was based on the specific facts of that case.


                                                    4
with a “start-up” company experiencing financial losses after a three-month search even

though he was capable of and actually earning money as a consultant at the time; 3) the

jobs within the field of interest selected by Ken (solar energy) are “government

subsidized,” unstable, and could require “moving around”; 4) C.M.G.’s father (Frank)

often ate lunch with her at school, attended school functions, took her on trips, regularly

exercised his visitation, and rarely allowed more than a couple of days to pass without

seeing her; 5) the child attended an excellent school in Austin; 6) only one airline

provided non-stop service between Boston and Austin and the return flight did not arrive

in Boston until 9:00 p.m.; 7) Frank held a tenured position at the University of Texas and

it would be extremely difficult for him to find a like post on the East coast; 8) though

Kristen offered to make the child available to Frank through video conferencing and

proposed a visitation schedule allegedly affording him substantially the same amount of

visitation time, visitation nonetheless was dependent on the child’s school schedule;3 9)

moving would reduce the quantum of daily contact between father and child; 10) C.M.G.

loves and has a good relationship with her father, stepmother, and half sister; 11) the

child also has a good friend living near her father; and 12) C.M.G. is close to Frank’s

sister who also lives in Austin. The foregoing evidence is not of little merit. It connotes

differing home/economic environments to which C.M.G. would be exposed - one

potentially unstable, nomadic, and dependent upon where jobs could be found in a

unique field of interest versus another shown to be stable and secure. Needless to say,

stability is important to a child’s well-being. To that, we add the evidence of Ken’s

current financial ability to travel back and forth to Texas to be with his family while

        3
          It can also be said that seeing someone over the internet is far different than being in the actual
presence of someone. Though a phone call may have its beneficial effects, it hardly substitutes for a hug,
kiss, or touch.

                                                     5
pursuing his own interests. We further note Kristen’s failure to cite us to any evidence

illustrating that 1) her well-being and disposition will be so affected by having to remain

in or around Austin that C.M.G. would suffer, or 2) employment opportunities (outside

the field of solar energy) for which Ken was trained and qualified were unavailable in or

around Austin. When considered in toto, the foregoing data and circumstances are

enough to insulate the trial court’s decision from claims of unreasonableness.

       As suggested by Kristen in her brief, one must acknowledge that divorce brings

change and the obligation to recognize that. Yet, the decision to divorce is seldom

made by the children of the marriage. It is more likely foisted upon them by their

parents. And, while some commentators caution against the “slavish adherence” to

public policies favoring the maintenance of continuous and frequent contact between

children and both of their parents, Echols v. Olivarez, 85 S.W.3d at 480, parents lack

the same decision-making freedom, such as the best interest of their children that they

may have enjoyed viz-a-viz their decision to divorce.         In sum, the trial court had

sufficient basis upon which to conclude that retaining the geographical restriction at

issue was warranted. Its decision does and did not constitute an instance of abused

discretion.

       Motion for New Trial

       As for the motion for new trial, Kristen thought it should have been granted on the

basis of newly discovered evidence. The latter purportedly consisted of statements

made by Frank regarding his wife’s medical condition and how it prevented him from

being C.M.G.’s full-time caretaker. We overrule the issues.




                                            6
       Whether a trial court erred in denying a motion for new trial again depends upon

whether it abused its discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813

(Tex. 2010). Furthermore, one seeking a new trial due to newly discovered evidence

must show that 1) the evidence has come to his knowledge since trial, 2) the failure to

discover the evidence is not due to a lack of diligence, 3) the evidence is not

cumulative, and 4) the evidence is so material it would probably produce a different

result. Id.

       That Frank’s wife suffered from the particular medical condition was known to

Kristen before the trial ended. Thus, it was not newly discovered evidence but could be

deemed cumulative of other information presented at trial. And, that C.M.G. had stayed

with her father and stepmother indicated that they had the ability to care for the child

despite the medical condition; so, one could reasonably debate about whether the new

evidence was so material as to probably produce a different result.           Finally, a

reasonable jurist could have deemed the evidence as further support for maintaining the

status quo since the medical condition could be viewed as interfering with the ability of

both Frank and his wife to regularly travel far distances if the child was to move. That,

in turn, could reasonably be viewed as detrimental to the child’s interest in maintaining

substantive interaction with her entire family. Thus, denying a new trial was not an

abuse of discretion.

       In closing, we comment upon the tenor of appellant’s argument and do so not as

criticism but rather as guidance for others who may journey down the same road.

Kristen focused most, if not all, of her attention upon the presence of evidence that

would purportedly warrant modification of the previous order. Little was said about the



                                           7
lack of evidence supporting the trial court’s ruling or why the evidence which supported

it was either deficient or unworthy of credence. Litigants and their counsel must be

mindful of the standard of review when drafting their briefs and argument if they wish to

effectively help or influence the reviewing court.

       The orders are affirmed since all issues are overruled.



                                                 Brian Quinn
                                                 Chief Justice




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