Affirmed and Memorandum Opinion filed May 8, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00285-CV
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JAYNE KNOPP, Appellant
V.
VICTOR CHARLES KNOPP, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 94-03391
M E M O R A N D U M O P I N I O N
Jayne Knopp appeals the appointment of Victor Charles Knopp (“Chuck”) as sole managing conservator of their two children, Stephanie and Eric Knopp. We affirm.
I. Background
Jayne and Chuck Knopp were divorced on May 25, 1995. Under the May 25, 1995 final divorce decree, Jayne was appointed sole managing conservator, with the exclusive right to establish the primary residence of the children, while Chuck was appointed possessory conservator. On November 29, 2000, Jayne and the children moved from Katy, Texas to Santa Barbara, California. On December 22, 2000, Jayne filed a petition to modify the parent-child relationship, seeking (1) an increase in child support, (2) modification in the terms regarding Chuck=s access to or possession of the children in that he be required not to leave the children unattended or without proper supervision during periods of possession, and (3) a temporary restraining order and injunction enjoining Chuck from removing the children from California and bringing them back to Texas.
On January 5, 2001, Chuck filed an original answer and counter-petition, seeking appointment as joint managing conservator and primary caretaker of the children, a decrease in the amount of child support due to costs of travel during pendency of the case, and temporary orders appointing Jayne and him temporary joint managing conservators with Chuck as primary caretaker of the children pending the outcome of his petition to modify the conservatorship.
On January 9, 2001, the trial court extended a temporary restraining order that restrained both Jayne and Chuck from (1) molesting or disturbing the peace of the children, (2) disrupting or withdrawing the children from the school in Santa Barbara in which they were currently enrolled, and (3) hiding or secreting the children from the other parent. After a hearing on the temporary orders, the trial court denied Chuck’s request for temporary relief on January 10, 2001. Jayne and the children were allowed to stay in California.
On February 28, 2001, Chuck filed an amended counter-petition to modify seeking appointment as sole managing conservator and primary caretaker of the children and Jayne appointed possessory conservator. On December 7, 2001, after a bench trial, the trial court signed the final order, appointing Chuck sole managing conservator with the exclusive right to establish the primary residence of the children, appointing Jayne possessory conservator, removing Chuck’s obligation to pay child support, and awarding Chuck $150 in monthly child support.
On appeal, Jayne challenges the December 7, 2001 order appointing Chuck sole managing conservator. Specifically, Jayne contends there was no evidence or factually insufficient to support either an implied finding of a material and substantial change of circumstances, or an implied finding that appointing Chuck sole managing conservator is in the best interest of the children.
II. Standard of Review
A trial court=s order modifying conservatorship will not be disturbed on appeal unless the complaining party establishes a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re P.M.B., 2 S.W.3d 618, 621 (Tex. App.CHouston [14th Dist.] 1999, no pet.). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). The fact that a trial judge may decide a matter within its discretionary authority differently than the reviewing court in similar circumstances does not establish an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The trial court does not abuse its discretion as long as some evidence of a substantive and probative nature exists to support the trial court=s decision. In re C.R.O., 96 S.W.3d 442, 447 (Tex. App.CAmarillo 2002, pet. filed); Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.CEl Paso 2000, no pet.).
Under the abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.CHouston [14th Dist.] 1996, no writ). We review the trial court’s findings of fact for legal and factual sufficiency of the evidence by the same standards applied in reviewing the evidence supporting a jury’s finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the trial court=s finding, disregarding all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A “no evidence” point will be sustained if there is no more than a scintilla of evidence to support the finding. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). In conducting a factual sufficiency review, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding, and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998).
Jayne admits that she failed to request findings of fact and conclusions of law by failing to timely file a notice of past due findings. Tex. R. Civ. P. 297. When the trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment, and supported by the evidence, are implied. D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 273 (Tex. App.CHouston [14th Dist.] 2002, pet. filed); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293B94 (Tex. App.CHouston [14th Dist.] 2002, no pet.). When the appellate record includes both the reporter=s record and the clerk’s record, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. D.H. Blair Inv. Banking Corp., 97 S.W.3d at 273; Curtis v. Commissioner for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.CHouston [14th Dist.] 2000, no pet.).
III. Material and Substantial Change of Circumstances
Jayne asserts her relocation to Santa Barbara does not constitute a material and substantial change to support the trial court=s order modifying the conservatorship. Section 156.101 of the Texas Family Code sets forth the grounds for modifying the order establishing the conservatorship:
The court may modify an order or portion of a decree that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order;
(2) the child is at least 12 years of age and has filed with the court, in writing, the name of the conservator who is the child=s preference to have the exclusive right to determine the primary residence of the child; or
(3) the conservator who has the exclusive right to establish the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
Tex. Fam. Code Ann. ' 156.101 (Vernon 2002).[1]
The El Paso Court of Appeals recently addressed whether relocation constitutes a material and substantial change. See Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.CEl Paso 2002, no pet.). The Bates court held that while relocation, regardless of distance, is not sufficient to establish a material and substantial change in circumstances, it further observed that “if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate.” Id.; see also Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 309 n.9 (1991) (“We do not hold that a proposed relocation constitutes a substantial and material change in circumstances as a matter of law, but it is difficult to imagine an instance in which a proposed relocation will not render an existing parenting plan or custody-and-visitation arrangement unworkable.”).
With regard to this fact-intensive inquiry, Bates listed the following factors to consider in determining whether relocation is a material and substantial change in circumstances: (1) the distance involved; (2) the quality of the relationship between the noncustodial parent and the child; (3) the nature and quantity of the child=s contacts with the noncustodial parent, both de jure and de facto; (4) whether the relocation would deprive the noncustodial parent of regular and meaningful access to the child; (5) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; (6) the motive for the move; (7) the motive for opposing the move; (8) the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements; and (9) the proximity, availability, and safety of travel arrangements. 81 S.W.3d at 430.
Jayne contends the factors set forth in Bates, as applied to the evidence here, do not support a finding of a material and substantial change in circumstances. Stephanie and Eric were doing well in school and involved in extracurricular activities in Santa Barbara. Jayne testified that she was more involved in the children=s lives because her health had improved since moving to Santa Barbara. Jayne maintains there was no showing that as a result of the move, the children were denied the substantial involvement of their father because Chuck either missed or was late for visitation on numerous occasions and was not substantially involved in the children=s extracurricular activities. Moreover, Jayne points out that after her house burned down on October 6, 2000, while she and the children first stayed in a motel and then with a friend for five weeks, Chuck only called the children on a couple of occasions and did not offer them any assistance. Jayne further complains that although Chuck had plans to hire a nanny and cut back his office hours if appointed sole managing conservator, he had not done so by the time of trial.
Contrary to Jayne=s assertion, applying the factors found in Bates to this case establishes that the evidence is both legally and factually sufficient to support an implied finding that the relocation to Santa Barbara was a material and substantial change. Jayne and the children moved a significance distance from Katy, Texas to Santa Barbara, California. Although there is evidence that Chuck missed or was late for some visitations, there was also evidence showing that Chuck was involved in the children’s lives. Chuck testified that he attended most of their soccer games and some of their practices, and he helped the children with their homework on evenings when he did not have visitation.
There is evidence to show the children=s relocation deprived Chuck of regular and meaningful access to the children. When Chuck visited the children in Santa Barbara on weekends, he had a 32 hour flight to Los Angeles and a two hour drive to Santa Barbara, arriving in time to pick up the children from school. When returning to Katy the following Sunday, he dropped the children off with Jayne at 9:30 a.m. to catch his 1:30 p.m. flight out of Los Angeles. Chuck testified this shortened his weekend visits with the children. Chuck further testified he could not be as involved in the children=s lives as he was when they were in Katy. When the children lived in Katy, he paid for their extracurricular activities because he could be involved with the children in those activities; however, he did not pay for those activities while the children lived in Santa Barbara because he could no longer be involved in their activities. Moreover, when the children lived in Katy, Chuck was always nearby.
Jayne testified that she moved for health reasons. Jayne testified that since she has lived in Santa Barbara she no longer suffers from the same allergies and pollution she had in Katy. She also has not been hospitalized since leaving Katy. Because her health had improved, Jayne claims she was able to be more involved in the children=s activities. Jayne also testified she moved because she had a job opportunity in Santa Barbara. There is no evidence that Jayne has had any regular employment since the divorce. Jayne had arranged for a job with Integrated Capital Services in Santa Barbara before moving there. When her employer relocated to Beverly Hills, Jayne decided to pursue a career in real estate. Jayne further testified she moved because of the stress of her strained relationship with Chuck, who was often verbally abusive with her.
Chuck testified he is opposed to the move because of the negative impact on his relationship with the children. Chuck is also opposed to the move to Santa Barbara because there is no network of friends and family in Santa Barbara. We find the evidence is both legally and factually sufficient to support an implied finding that the relocation to Santa Barbara constitutes a material and substantial change in circumstances.
IV. Best Interest of the Children
The other requirement Chuck had to establish under section 156.101 was that his appointment as sole managing conservator is in the best interest of the children. Jayne challenges the legal and factual sufficiency of the evidence supporting an implied finding that the appointment of Chuck as the sole managing conservator is in the best interest of the children. In determining conservatorship and possession issues, the best interest of the child is always the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Furthermore, public policy of this State is to:
(1) assure that children will 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 parents have separated or dissolved their marriage.
Tex. Fam. Code Ann. ' 153.001(a) (Vernon 2002).
In addressing the best interest of the child standard in the context of a relocation case, the Texas Supreme Court in Lenz considered the following factors: (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 children; (5) positive impact on the custodial parent’s emotional and mental state, with beneficial results to the children; (6) the non-custodial parent=s right to have regular and meaningful contact; (7) the ability of the non-custodial parent to relocate; (8) the ability of the non-custodial parent to adapt his work schedule to be with the children. 79 S.W.3d at 15B19.
The court in Bates similarly considered the following factors: (1) the degree to which the custodial parent’s and the child=s life may be enhanced economically, emotionally, and educationally by the move; (2) a comparison of the quality of lifestyle; (3) the negative impact of any continued hostility between the parents; (4) the effect on the move on extended family relationships; and (5) the child’s age, community ties, health and educational needs, and preferences. 81 S.W.3d at 434 (citing Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145, 151 (1996); In re Marriage of Smith, 172 Ill. 2d 312, 216 Ill. Dec. 652, 665 N.E.2d 1209, 1213 (1996)).
Jayne argues that when the best interest factors related to relocation are applied to the facts of this case, the evidence establishes that a change in the sole managing conservatorship is not warranted. Jayne maintains the move enhanced her and the children’s economic, emotional, and educational situation, and improved their overall quality of life. Jayne asserts her health has greatly improved since moving to Santa Barbara and, therefore, she was able to be more involved with the children’s activities. Moreover, the children liked living in Santa Barbara and were doing well in school. Jayne further contends that she lived in an atmosphere of fear and hostility in KatyCa situation that had improved since the relocation to Santa Barbara.
Jayne argues the move did not affect the children’s relationship with extended family. She explains the move did not eliminate visits with extended family in light of summer visitation. With respect to the children=s age, community ties, health and educational needs, and preferences, Jayne points out that the children stated they preferred to remain with her in Santa Barbara. Jayne also asserts the children=s educational needs were being met in Santa Barbara as they were in Katy. The children were honor students in Katy and continued to be honor students in Santa Barbara. Concerning the children=s health needs, Jayne argues the fact that the children=s father is a physician is not sufficient to support an appointment of sole managing conservator.
Although the Supreme Court in Lenz did not address the Holley[2] best interest factors, other courts of appeals have addressed those factors. See In re C.R.O., 96 S.W.3d at 451; Bates, 81 S.W.3d at 433B34. The Holley 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 programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions by one parent. Holley, 544 S.W.2d at 371B72.
Jayne states the children want to live with her, she has always cared for them, and they have always looked to her for emotional support. Chuck often missed or was late for visitation and missed the children’s events such as birthday parties. Chuck did not offer any support or assistance after Jayne’s house burned even though she and the children lived in a motel and then with friends. Jayne concedes that although she made some poor decisions with regard to finances, she asserts that she has provided the children with a home, food, and clothes. Finally, Jayne maintains that Chuck has not been able to point to any action on her part that has affected the welfare of the children.
Applying the best interest factors found in Holley, Lenz, and Bates, we conclude the evidence is legally and factually sufficient to support an implied finding that the appointment of Chuck as sole managing conservator is in the best interest of the children. Jayne did not tell Chuck that she and the children were moving to Santa Barbara until after they had arrived in California. At that time, Jayne would not give him an address or home phone number. Chuck first heard of the move after Jayne and the children had left Katy when the mother of one of Stephanie’s classmates told him that Stephanie had informed her friends at school she was moving to California. Jayne asserts she did not inform Chuck prior to the move as required under the divorce decree because Chuck was verbally abusive. To make the move, Jayne took the children out of school at the end of November 2000, prior to the end of the semester. The children did not take their final exams, and Eric was not able to participate in a spelling bee in which he was a finalist.
Chuck testified he could not be a part of the children=s lives while they were living in Santa Barbara. Although Chuck has missed and been late for some visitations, he helped the children with their homework on evenings when he did not have visitation. Chuck testified that he was able to attend most of the children=s soccer games and some practices in Katy. Chuck testified that when the children lived in Katy, he paid for their extracurricular activities because he was involved in those activities; however, when the children lived in Santa Barbara, he was no longer involved in their activities and, therefore, stopped paying for their extracurricular activities. Chuck further testified that the length of his weekend visitations with the children was shortened because of the travel time between Katy and Santa Barbara. Finally, Chuck testified, and Jayne admitted, that she monitored his telephone conversations with the children.
Chuck complains there is no network of family and friends for the children in Santa Barbara. For example, when Jayne was in Texas for her deposition, her boyfriend, whom she had only known for two months, stayed with the children because Jayne’s 21-year-old daughter from a previous marriage, Misty Whitely, who was supposed to stay with the children, was not able to get back to Santa Barbara in time after returning from an out-of-town trip. The evidence showed the children have extended family in Texas. Chuck=s father lives in Port Lavaca; his brother and sisters, along with their children, also live in Texas. Chuck testified that the children’s close relationship with his family was affected by the move to Santa Barbara.
Jayne=s sister, who lives in Forth Worth, testified she saw the children five or six times a year prior to the move. Another sister, Connie Klostermann, who lives in Bellville, testified that she was concerned that if something happened to Jayne in Santa Barbara, no one would be able to get out there fast enough to take care of the children. Connie acknowledged that Misty, Jayne’s daughter, is good with the children, but pointed out that Misty was only 21 years old.
Chuck testified that he worked 12 to 14 hours a day, but that he would cut back his hours so that he could leave his office by 5:00 every afternoon. He planned to get a nanny to watch the children when he could not be at home with them. Although he had not hired a nanny at the time of trial, he had made arrangements for his former office manager, of whom the children were very fond, to watch the children until he hired a nanny. In Santa Barbara, the children attended YMCA daycare after school on occasion.
Chuck testified that he teaches the children fiscal responsibility. He gives them a weekly allowance, but makes them save half of it and has opened savings accounts for them. Jayne testified that after the divorce, she lent someone $50,000, none of which was paid back. She stated that any emergency funds have been depleted. Finally, Jayne admitted that she had smoked marijuana with Misty, who was an adult at the time. Although Jayne now states it was not a good decision, she conceded that at the time, she thought it was.
A review of the record establishes that the evidence is legally and factually sufficient to support an implied finding that the appointment of Chuck as sole managing conservator is in the best interest of the children. Therefore, the trial court did not abuse its discretion in appointing Chuck sole managing conservator.[3] Accordingly, the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed May 8, 2003.
Panel consists of Chief Justices Brister and Justices Hudson and Fowler.
[1] Former section 156.101 was amended in 2001. Act of June 16, 2001, 77th Leg., R.S., ch. 1289, ' 5, 2001 Tex. Gen. Laws 3108. Amended section 156.101 took effect on September 1, 2001, and applies to actions to modify orders in suits affecting the parent-child relationship pending on September 1, 2001, or filed thereafter. Act of June 16, 2001, 77th Leg. R.S., ch. 1289, ' 13, 2001 Tex. Gen. Laws 3111. Because both Jayne=s and Chuck=s respective petitions to modify were pending on September 1, 2001, we will address the issues raised in this appeal under current section 156.101.
The other optionsCthe children choosing their father to be the sole managing conservator, and voluntary relinquishment by JayneCdo not apply in this case. Tex. Fam. Code Ann. ' 156.101.
[2] See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976) (setting forth non-exhaustive list of factors to consider when determining the best interest of the child in context of parental termination).
[3] Jayne asserts that appointing Chuck sole managing conservator is against public policy and an abuse of discretion. Because the evidence is legally and factually sufficient to support implied finding of material and substantial change in circumstances and that such appointment is in the best interest of the children, the trial court did not abuse its discretion and, in the absence of an abuse of discretion, such appointment is not against public policy.