                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00391-CV


In the Interest of T.G.-S.L., A Child      §   From the 323rd District Court

                                           §   of Tarrant County (323-93854J-10)

                                           §   January 4, 2013

                                           §   Opinion by Justice Gabriel



                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court‘s judgment. The judgment is modified to delete

any reference to an agreement or an agreed judgment. It is ordered that the

judgment of the trial court is affirmed as modified.

                                        SECOND DISTRICT COURT OF APPEALS



                                        By_________________________________
                                          Justice Lee Gabriel
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-12-00391-CV


IN THE INTEREST OF T.G.-S.L., A
CHILD




                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      Appellant C.L. (Mother) appeals the trial court‘s order changing the name

of her son T.G.-S.L. from Tailpipe Greasy-Spoon Lang to Taylor Gregory Lang.2

We reform the trial court‘s order and affirm it as reformed.


      1
       See Tex. R. App. P. 47.4.
      2
       We use aliases for the child and his relatives throughout this opinion. See
Tex. R. App. P. 9.8(b)(2). We use ―Tailpipe Greasy-Spoon‖ to reflect the child‘s
unusual given name, which is similarly comprised of objects not conventionally
used for a human child‘s name.


                                          2
                                 Background Facts

      Mother is a paranoid schizophrenic who has suffered from chronic mental

health issues for years. Mother stopped taking medication for her schizophrenia

about two years prior to trial.         Dr. Nichelle Wiggins, a licensed clinical

psychologist, described Mother‘s thought processes as ―illogical‖ and testified

that Mother was ―not . . . in touch with reality.‖

      Mother gave birth to Tailpipe Greasy-Spoon in December 2010.3             The

hospital contacted the Department of Family and Protective Services (DFPS)

because Mother appeared unable to care for Tailpipe and the group home in

which Mother lived would not allow her to bring the child with her.4 In February

2011, the trial court granted DFPS temporary managing conservatorship and

granted Mother‘s brother and his wife, T.L. and D.L. (Tony and Denise Lang),

temporary possessory conservatorship of Tailpipe. In November 2011, the trial

court entered an order removing DFPS as the temporary managing conservator



      3
        Tailpipe‘s father is unknown. In her psychological evaluation, Dr. Wiggins
asked Mother who Tailpipe‘s father was and Mother responded, ―Science.‖
When Dr. Wiggins asked what Mother meant, Mother said that ―it is ‗Nobody,‘‖
and later said that she did not know who the father was so she just wrote
―Science.‖ She also reported that her current partner was ―BQK08597,‖ but she
later explained that was the number on Tailpipe‘s hospital wristband.
      4
        Dr. Wiggins reported that Mother told her that ―she had one baby in the
hospital and ‗it was weird to look at‘‖ and that Mother listed the name of her child
as ―Labor, heaven Change Space.‖ She said that ―picking up a baby when he
cries spoils him,‖ that ―a child should be potty trained by the time he‘s one year
old,‖ and that children ―are really little adults.‖


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and appointing it as managing conservator and Tony and Denise as possessory

conservators.

      In August 2012, because Mother continued to refuse treatment for her

mental health issues, DFPS moved to modify the managing conservatorship of

Tailpipe, seeking to appoint Tony and Denise as the managing conservators.

DFPS also sought to change Tailpipe‘s name from Tailpipe Greasy-Spoon Lang

to Taylor Gregory Lang. After a bench hearing, the trial court appointed Tony

and Denise as the managing conservators and ordered that Tailpipe‘s named be

changed to Taylor Gregory. Mother then filed this appeal.5

                                    Discussion

      In Mother‘s first issue, she complains that the trial court‘s order

erroneously recites that it was an agreed order. A valid agreed judgment waives

any error, except for jurisdictional error, contained in the judgment and precludes

appellate review of that judgment. In re Ezukanma, 336 S.W.3d 389, 398 (Tex.

App.—Fort Worth 2011, no pet.). Here, the order states,




      5
        On November 20, 2012, we notified Tony and Denise Lang that we had
not received their appellees‘ brief. See Tex. R. App. P. 38.6(b). We notified the
Langs that if they did not file a motion reasonably explaining the failure to file a
brief and the need for an extension, the appeal would be set for submission
without their appellees‘ brief. The Langs filed a brief in this court that contained a
number of formal defects. See Tex. R. App. P. 9, 38. They did not file a motion
explaining their failure to timely file a brief. We therefore order Tony and
Denise‘s untimely brief stricken, and we proceed with this appeal as if they had
failed to file a brief. See Tex. R. App. P. 38.9(a).


                                          4
            The Court finds that the parties and attorneys who appear
      herein agree to the provisions and terms of this Order as evidenced
      by their signatures.

             The Court finds that the parties and attorneys agree that the
      following Orders are necessary for the safety and welfare of the
      Child and that such Orders are in the best interest of the Child.

      Mother‘s attorney, her guardian ad litem, and the assistant criminal district

attorney signed the order under the heading ―approved as to form.‖ Tailpipe‘s

attorney and guardian ad litem signed it under the heading ―approved as to form

and substance.‖ It is clear from the signatures as to form only that the order,

despite its language to the contrary, was not an agreed order. See Oryx Energy

Co. v. Union Nat’l Bank of Tex., 895 S.W.2d 409, 417 (Tex. App.—San Antonio

1995, writ denied) (holding that order, despite notation that it was ―Approved and

Agreed,‖ was not an agreed order when ―nothing in the record or the judgment

indicates that the parties entered or even contemplated a settlement or agreed

judgment‖). There is no other indication in the record that the parties agreed to

any terms contained in the order. See First Am. Title Ins. Co. v. Adams, 829

S.W.2d 356, 364 (Tex. App.—Corpus Christi 1992, writ denied) (holding that a

judgment entitled ―Agreed Amended Judgment Nunc Pro Tunc‖ signed by

appellant ―approved as to form and substance‖ did not bar him from appealing

the judgment when no other indications of agreement existed in the record).

DFPS agreed in its brief that the order is not an agreed order and should be

reformed. We therefore sustain Mother‘s first issue and reform the judgment to

delete any reference to an agreement or an agreed judgment. See Tex. R. App.


                                        5
P. 43.2(b); Hawkins v. Comm’n for Lawyer Discipline, 988 S.W.2d 927, 942 (Tex.

App.—El Paso 1999, pet. denied), cert. denied, 529 U.S. 1022 (2000) (reforming

order that incorrectly stated it was an agreed order and affirming the order as

modified).

      In Mother‘s second issue, she argues that the trial court abused its

discretion in changing Tailpipe‘s name. A trial court abuses its discretion if the

court acts without reference to any guiding rules or principles, that is, if the act is

arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire

v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,

221 S.W.3d at 620.

      A trial court also abuses its discretion by ruling without supporting

evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an

abuse of discretion does not occur when the trial court bases its decision on

conflicting evidence and some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

      Section 45.004 of the family code allows for a child‘s name to be changed

if the change is in the best interest of the child.          Tex. Fam. Code Ann.

§ 45.004(a) (West 2008). The court has wide discretion in determining whether it


                                          6
is in the child‘s best interest to grant or deny an application for name change.

G.K. v. K.A., 936 S.W.2d 70, 73 (Tex. App.—Austin 1996, no writ). The basic

consideration in a proceeding of this character is the best interest of the child.

Newman v. King, 433 S.W.2d 420, 423 (Tex. 1968). A parent‘s interests and

desires are of secondary importance. In re Guthrie, 45 S.W.3d 719, 724 (Tex.

App.—Dallas 2001, pet. denied). In determining the best interest of the child, the

trial judge had broad discretion because she had the opportunity to observe and

evaluate the personalities involved, weigh the credibility of their testimony, and

assess the physical, mental, moral, and emotional needs of the child.             In re

S.C.S., No. 05-09-00832-CV, 2010 WL 3091373, at *4 (Tex. App.—Dallas Aug.

6, 2010, pet. denied) (mem. op.) (citing Bennett v. Northcutt, 544 S.W.2d 703,

708 (Tex. Civ. App.—Dallas 1976, no writ).

      Mother first argues that because the order did not contain a finding that the

trial court found the name change to be in the best interest of the child, ―the

name change was arbitrary because it was not tied to any legal standard.‖ 6 The

lack of an explicit finding of best interest does not mean that the trial court did not

determine that the name change was in the child‘s best interest. Mother did not

request findings pursuant to rule 296 of the rules of civil procedure, and there


      6
        The order stated, ―The Court finds that the parties and attorneys agree
that the following Orders are necessary for the safety and welfare of the Child
and that such Orders are in the best interest of the Child.‖ It did not contain a
finding that the trial court itself found that the order was in the best interest of the
child.


                                           7
were no separately entered findings of fact or conclusions of law after the order.

See Tex. R. Civ. P. 296. In a trial to the court in which no findings of fact or

conclusions of law are filed, the trial court‘s judgment implies all findings of fact

necessary to support it. Spir Star AG v. Kimich, 310 S.W.3d 868, 871–72 (Tex.

2010); Moncrief Oil Int’l, Inc. v. OAO Gazprom, 332 S.W.3d 1, 7 (Tex. App.—Fort

Worth 2010, pet. granted). When a reporter‘s record is filed, however, these

implied findings are not conclusive, and an appellant may challenge them by

raising both legal and factual sufficiency of the evidence issues.         Sixth RMA

Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Moncrief Oil, 332

S.W.3d at 7. When such issues are raised, the applicable standard of review is

the same as that to be applied in the review of jury findings or a trial court‘s

findings of fact.   Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989);

Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort Worth 2009,

no pet.). The judgment must be affirmed if it can be upheld on any legal theory

that finds support in the record. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 767

(Tex. 2011); Liberty Mut., 295 S.W.3d at 777.

      Mother does challenge the legal and factual sufficiency of the evidence

supporting the name change. As we have previously explained,

      Legal and factual sufficiency are not independent grounds for review
      in conservatorship cases, but they are relevant factors in deciding
      whether an abuse of discretion occurred. In determining whether
      there has been an abuse of discretion because the evidence is
      legally or factually insufficient to support the trial court‘s decision, we
      engage in a two-pronged inquiry: (1) Did the trial court have enough



                                          8
       information upon which to exercise its discretion; and (2) did the trial
       court err in applying its discretion?

In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.) (citations

omitted). This court and some of our sister courts have identified a nonexclusive

list of factors to consider in determining whether the name change is in the best

interest of the child, including the following relevant factors:

   •   whether the changed name or the original name would best avoid
       embarrassment, inconvenience, or confusion;

   •   the length of time that the child has carried the original name;

   •   the degree of community respect associated with the original and changed
       names;

   •   whether the change will positively or adversely affect the bond between the
       child and the parent or the parent‘s families;

   •   the preference, maturity, and age of the child;

   •   whether the party seeking the name change is motivated by an attempt to
       alienate the child from a parent.

In re A.W.G., No. 02-10-00376-CV, 2011 WL 3795237, at *3 (Tex. App.—Fort

Worth Aug. 25, 2011, no pet.).

       The DFPS caseworker testified that she believed it was in Tailpipe‘s best

interest to change his name. She explained that the Langs call Tailpipe ―Tay.‖

Denise Lang testified that she wanted the name change and believed the

proposed order was in Tailpipe‘s best interest.          Neither the caseworker nor

Denise explained why they believed the name change was in Tailpipe‘s best




                                           9
interest. Mother testified that she wanted his name to remain Tailpipe Greasy-

Spoon. When she was asked why, she answered, ―Because I love him.‖

      Although no witness testimony was presented regarding the above-listed

factors, the name itself is evidence enough upon which the trial court could

exercise its discretion. No reasonable trier of fact could find that being named

Tailpipe Greasy-Spoon would not lead the child to suffer embarrassment,

inconvenience, and confusion.      Neither does a name comprised of soiled,

inanimate objects lend itself to respect in the community. The Langs call Tailpipe

by the nickname ―Tay,‖ which is also a diminutive of Taylor. At the time of the

hearing, Tailpipe was one year old. Considering his young age and that he is not

called by his given name, Tailpipe could not have formed an attachment to his

given name that would lead to a difficult transition to a new name. Further, there

was no evidence that Tony and Denise or DFPS was motivated by an attempt to

alienate the child from Mother. Keeping in mind that the ultimate concern of the

court is the child‘s best interest, we cannot say that the trial court abused its

discretion in changing Tailpipe‘s name from Tailpipe Greasy-Spoon Lang to

Taylor Gregory Lang. We overrule Mother‘s second issue.




                                       10
                                   Conclusion

      Having sustained Mother‘s first issue, we reform the judgment to delete

any reference to an agreement or an agreed judgment.            Having overruled

Mother‘s second issue, we affirm the trial court‘s judgment as modified.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: January 4, 2013




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