Opinion issued October 26, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00798-CV
SHEILA RENA PATTERSON, Appellant
V.
CLINT ALLEN BRIST, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2004-17094
OPINION DISSENTING FROM THE DENIAL OF
EN BANC CONSIDERATION
In its opinion, the panel majority effectively applies the wrong standard of review in this case, resulting not only in its error, but also a deviation from the prior precedent of this Court and well-established Texas law. Accordingly, I respectfully dissent from the denial of en banc consideration of this case. See Tex. R. App. P. 42.1(c).
In her sole issue, appellant, Patterson, argues that the trial court abused its discretion in removing her as sole managing conservator and naming appellee, Brist, as joint managing conservator with the right to designate their child’s residence because “there is no evidence or insufficient evidence to support the trial court’s finding that it is in [their child’s] best interest for . . . Brist to be named as joint managing conservator with the right to designate [their child’s] residence.”
The panel majority correctly notes that we review a trial court’s decision on custody, control, possession, and visitation matters for abuse of discretion, and reverse the trial court’s order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.] 2001, no pet.). It then states that “[a]n allegation of legal or factual insufficiency is not treated as an independent ground of error in this context because the appropriate standard of review is abuse of discretion.” See Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The panel majority recognizes that such “[s]ufficiency challenges are incorporated into an abuse of discretion determination.” See McGuire v. McGuire, 4 S.W.3d 382, 387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
However, after recognizing that such sufficiency challenges are necessarily to be incorporated into its abuse of discretion determination, the majority then proceeds to review the case only for an abuse of discretion after viewing the evidence in the light most favorable to the trial court’s decision without conducting a factual sufficiency review.
As noted by Patterson, in her briefing, this Court has previously explained that although “sufficiency challenges are not independent points of error,” they “are incorporated into an abuse of discretion determination.” Id. (emphasis added). In McGuire, a child support case, we explained,
Once the reviewing court determines whether sufficient evidence exists, it must then decide whether the trial court appropriately exercised its discretion in applying the child support guidelines.
Id. (emphasis added). Thus, we “address[ed] both the sufficiency and abuse of discretion prongs of the inquiry.” Id. In the instant case, the majority skips the first part of the analysis, jumps immediately to the second, and concludes that the trial court did not abuse its discretion.
The standard utilized in McGuire is well-established and has been applied in the context of reviewing a trial court’s modification of a joint managing conservatorship. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort. Worth 2002, pet. denied). In T.D.C., also cited by appellant, the court held that the evidence was factually insufficient to support the trial court’s finding of “positive improvement.” Id. at 873–74. The court discussed “positive improvement” in the context of whether the modification was in the child’s best interest considering the Holley factors. Id. at 873–76; see Holley v Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The court further held,
Because positive improvement is the most important consideration of the trial court in determining the issue of whether the prior conservatorship order should be modified by appointing a new primary managing conservator, we conclude that the trial court abused its discretion in appointing Stoney as the primary managing conservator based on a positive improvement finding that is contrary to the overwhelming weight of the evidence.
Id. at 876. Chief Justice John Cayce, writing for the majority, articulated the standard as follows:
In our review of modification under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in deciding whether the trial court abused its discretion. D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex. App.—Fort Worth 1995, writ denied); see In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.—El Paso 2001, no pet.). 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 sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? D.S., 76 S.W.3d at 516; Norris, 56 S.W.3d at 338; see Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.—El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question. Lindsey, 965 S.W.2d at 592. We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
Id. at 872. Chief Justice Cayce then set out the appropriate legal and factual sufficiency standards of review and applied them by conducting the appropriate reviews of the evidence. Id.
In this case, this Court should do likewise. The panel majority’s failure to do so leads to its error in affirming the trial court’s order and constitutes a deviation from our prior precedent and well-established law. See Tex. R. App. P. 42.1(c).
Terry Jennings
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Hanks, concurring.
Justice Keyes, dissenting.
En banc consideration was requested. See Tex. R. App. P. 41.2(c).
A majority of the Court voted to deny en banc consideration. See id.
Justice Jennings, dissenting from the denial of en banc consideration.