Maribel Reyes v. Luis Reyes Iii

NUMBER 13-09-00105-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARIBEL REYES, Appellant,

v.

LUIS REYES III, Appellee.

On appeal from the 92nd District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Maribel Reyes, challenges the trial court‘s final decree of divorce. By

four issues, Maribel contends that: (1) the trial court abused its discretion by dividing

the marital estate disproportionately in favor of appellee, Luis Reyes III; (2) the trial

court erred in setting child support; (3) the trial court abused its discretion in ordering the
child possession order; and (4) the trial court abused its discretion in setting a

geographic restriction. We reverse and remand, in part, and affirm, in part.

I. BACKGROUND

Maribel and Luis were married on April 21, 1990, and had their only child on

December 16, 1999. In 2001, Maribel filed for divorce on grounds of insupportability

and cruel treatment. Maribel requested that she be appointed sole managing

conservator of the child, that the trial court award her a disproportionate share of the

marital estate, and that the trial court grant spousal maintenance. Maribel also

requested relief of an attachment of the body of the child and the issuance of an order

taking the child into her possession. Maribel asserted causes of action for assault and

intentional infliction of emotional distress. In her amended petition for divorce, Maribel

requested back child support and asserted claims of breach of fiduciary duty and fraud.

Luis filed a counter-petition for divorce on the grounds of insupportability, cruel

treatment, and intentional infliction of emotional distress. Luis requested that the marital

estate be divided in a manner the trial court deemed just and right and that he be

appointed the child‘s managing conservator with the exclusive right to determine the

primary residence of the child without regard to geographic location or, in the

alternative, that the residence of the child be restricted to Hidalgo County.

A bench trial was held on January 15 and 16, 2008. The trial court admitted an

inventory and appraisement of marital property from Maribel and one from Luis, and

each testified regarding the values they attributed to each item listed. Both parties

agreed that the following items were part of the marital estate: (1) a home on Date

Palm Drive in Mercedes, Texas; (2) cash in a Texas State Bank account in Luis‘s name;

2
(3) a Ford F150 truck; (4) a 1993 Freightliner truck; (5) a 1978 Luftkin dump trailer; (6) a

Dargel boat; (7) a 2001 backhoe; (8) a four-wheeler; (9) two utility trailers; (10) furniture

in Maribel‘s possession and furniture in Luis‘s possession; and (11) a 2007 Lexus

IS250. In addition to these items, Maribel claimed the following items were also part of

the marital estate: (1) real property built on Pleasantview Drive using community

funds1; (2) fifteen acres of land adjacent to the real property on Pleasantview Drive in

Weslaco, Texas; (3) a Wells Fargo bank account in Maribel‘s name; (4) three Harley

Davidson motorcycles; (5) a 1989 Buick Skyhawk sedan; (6) an interest in the sole

proprietorship of ―O.M.T. Transportation and/or O.M.T. Utilities‖; (7) a gold coin

collection; (8) a five-hundred-dollar bill; (9) a gun collection; (10) Maribel‘s wedding

band, Rolex watch, and other assorted jewelry; and (11) three cemetery lots at Highland

Memorial Cemetery in Weslaco, Texas.

Maribel also sought reimbursement of $244,400 against Luis‘s separate estate

for the following: (1) community funds used to add value to the property at 1906

Pleasantview Drive; (2) Luis‘s alleged ―waste of community assets‖; and (3) Luis‘s

alleged ―use of community funds to purchase real property and put it in his mother‘s and

sister‘s names.‖ Maribel listed several community liabilities of credit card debt in her

name.

On direct examination by Maribel‘s attorney, Luis testified that although he listed

the property on Date Palm Drive as a community asset, he considered that house to be

Maribel‘s because she bought the house after they separated. Luis acknowledged that

he had $6,297 in his bank account. Luis did not know the value of the following items:

1
Luis claimed that the real property and the lot were his separate property. Maribel claimed that
only the lot and ―shell of a house‖ were Luis‘s separate property.

3
(1) Ford F150 truck; (2) Freightliner; (3) Lufkin dump trailer and truck; (4) Dargel boat;

(5) backhoe; (6) two four-wheelers; and (7) three utility trailers. Luis stated that he

acquired his home at 1906 Pleasantview Drive as a gift from his grandmother and that

his grandfather turned a garage on the property into a home. Luis claimed that

improvements in the amount of $5,000 were made to the property while he was married

to Maribel. Luis admitted that he had purchased and sold various vehicles during the

marriage but that he had not included those items in his inventory and appraisement.

Luis stated that he only had two dirt bikes and that he did not own any other

motorcycles. Luis denied ever owning a Harley Davidson motorcycle. However, Luis

claimed that as a hobby, he enjoyed repairing motorcycles for his friends although, in

many cases, he was unable to do the repairs; therefore, he would take the bikes to the

Harley Davidson shop for repairs. According to Luis, one of his friends from Mexico

owns eight Harley Davidson bikes and is unable to cross the border to take these bikes

to the shop for repairs; so, Luis takes the bikes in for repairs. The trial court admitted

plaintiff‘s exhibit number eight, a repair bill showing that Luis had paid $2300 to repair

the transmission on a blue Harley Davidson bike in 2003. Luis acknowledged that he

had taken the bike in for repairs and that he had paid cash, but insisted that his friend,

Carlos Delgado, owned the bike. Luis explained that he did not mind paying for repairs

in cash or on his credit card on behalf of his friends and family who he knew would pay

him back. Luis acknowledged that he also took a red Harley Davidson and a green

Harley Davidson bike in for repairs and paid the amount due with his credit card.

Luis denied that he threatened Maribel with a gun. Luis acknowledged that

Maribel may have sought a restraining order against him, but denied that a restraining

4
order had ever been issued against him. Luis also claimed that Maribel ―took custody‖

of the child. According to Luis, he had possession of the child ―[e]ver since [Maribel] left

in 2001‖ until 2004 when ―that judge signed that paper and gave [Maribel] authority over

[the child].‖ When asked if he had committed family violence against Maribel, Luis

stated that he had never been arrested or charged with that crime. Maribel‘s counsel

then stated, ―Well, the question I asked you was, did you ever commit family violence

against [Maribel]? Did you ever hit her?‖ Luis responded, ―Not that I recall, no. Maybe

pushed her off of me if she were to attack me or something, but hit her, no. I would

guarantee you I‘d be in jail or I would have been in jail, arrested. She‘s called the cops

on me a lot of times, but I‘ve never been locked up.‖

Luis agreed that he had net resources of approximately $70,000 despite the fact

that on his tax returns, he claimed that his amount of income in 2004 was negative

$1,255 and in 2006 was $500. Maribel‘s attorney presented evidence that Luis

purchased a 1999 Toyota Corolla for $1,600 that had been registered to Luis‘s friend,

Edith Cadena. Luis explained that Cadena had given him cash to purchase the vehicle

and that he had then written a check.

On cross-examination, Luis testified that since the petitions for divorce had been

filed in 2001, he had not resided with Maribel. According to Luis, even before the

divorce had been filed, Maribel ―went and came as she pleased.‖ Luis accused Maribel

of having a boyfriend the entire time they had been married. Luis acknowledged that in

his petition for divorce, he stated that he and Maribel ceased living together as husband

and wife on October 15, 2001.

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 On re-direct examination, Luis admitted that he had used drugs when he went

through depression; however, according to Luis, he had never been addicted to drugs

or ever been to rehab. Luis testified that it had been ―years‖ since he had used drugs.

Luis did not recall writing a letter to Maribel stating that he had used cocaine on Father‘s

Day in 2002 or 2003.

Maribel testified that she filed for divorce in March 2001 and that she asked for

an emergency writ of attachment because Luis allegedly ―showed up‖ at her residence

at 2:00 a.m. threatening to kill her with a gun. Maribel stated that the child was crying

on the bed until 4:00 a.m. Maribel testified that she left home during the marriage

because Luis allegedly committed family violence against her by threatening her,

choking her, and spitting in her face. Maribel claimed she filed between fifteen and

twenty police reports concerning the family violence.

Maribel stated that she denied Luis access to the child on Father‘s Day in 2002

or 2003 because she discovered that Luis possessed cocaine, and he sent her a letter

stating that he was using drugs.2 According to Maribel, Luis ―has a habit of hanging

around with the wrong crowd‖ and has ―dealt‖ drugs before. Maribel stated that ―a

certain individual who has happened to kill someone two years ago in Weslaco‖ had

threatened Luis‘s life. Maribel testified that Luis has taken the child to bars. Maribel

claimed that she had to apply for a protective order against Luis in 2004 because ―he

kept harassing‖ her while she was at a Christmas party and stated, ―Thank God you

parked in the back because if I get to you, this and this and that.‖ On another occasion,

Luis allegedly harassed Maribel again and made several threats, stating ―that Thank

2
The trial court admitted the letter into evidence. In the letter, Luis also stated that he was
drinking every day. Maribel testified on redirect examination that Luis still drinks every day.

6
God that you parked at this parking lot over here because—right under the light

because if you come out, I‘m going to do this and this and that, several threats.‖

Maribel testified that the court granted the protective order.

Maribel testified that Luis had three Harley Davidson motorcycles worth $60,000

and that Luis‘s business is worth ―at least‖ $150,000. Maribel based the value of the

business on Luis‘s financial records, his equipment, and the profits he has received

from it.3 According to Maribel, Luis failed to account for several items that he has

acquired during the marriage in his inventory, including among other things, a red

tractor-trailer that he recently sold, a gun collection, and a gold coin collection. Maribel

testified that the gold coin collection is worth approximately $6,000 and that the gun

collection is worth approximately $15,000.

After hearing the evidence, in its final decree of divorce, the trial court granted

the couple‘s divorce on the ground of insupportability, appointed Maribel and Luis joint

managing conservators of the child, ordered that the child‘s primary residence be in

Hidalgo County, Texas,4 established the parents‘ possession and access to the child,

ordered Luis to pay $500 per month in child support, and divided the marital estate.

Maribel filed a request for findings of fact and conclusions of law and when the

trial court failed to issue them, she filed a notice of past due findings of fact and

conclusions of law. The trial court did not issue any findings of fact or conclusions of

law. This appeal ensued.

3
Luis agreed that his business, including the equipment, is worth $150,000.
4
The trial court granted Maribel the right to designate the child‘s residence within Hidalgo County.

7
 On August 20, 2010, Luis filed with this Court a motion to abate the appeal and

remand to the trial court for entry of findings of fact and conclusions of law. Maribel filed

a response stating that she was unopposed to such motion. On August 31, 2010, this

Court abated the appeal and remanded the case to the trial court so that it could issue

findings of fact and conclusions of law. The trial court‘s findings of fact and conclusions

of law were filed in this Court in a supplemental clerk‘s record on November 15, 2010.

II. DIVISION OF THE MARITAL ESTATE

By her first issue, Maribel contends that the trial court abused its discretion by its

disproportionate division of the marital estate in favor of Luis. She argues that the

disproportionate division was manifestly unjust and requires reversal. Luis has not filed

a brief in this case.

A. Standard of Review and Applicable Law

We review a trial court‘s division of property under an abuse of discretion

standard. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). A trial court has wide

latitude in the exercise of its discretion in dividing marital property in a divorce

proceeding, and that division will not be overturned on appeal unless the trial court has

abused its discretion. Id.; Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.–Houston

[14th Dist.] 1996, no writ); Dankowski v. Dankowski, 922 S.W.2d 298, 304 (Tex. App.–

Fort Worth 1996, no writ). The mere fact that a trial judge may decide a matter within his

discretionary authority differently than an appellate judge is not an abuse of discretion.

Jones v. Jones, 804 S.W.2d 623, 624 (Tex. App.–Texarkana 1991, no writ) (citing

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)). To constitute an

abuse of discretion, the trial court‘s division of the property must be manifestly unfair.

8
Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980); Vandiver v. Vandiver, 4 S.W.3d 300,

303-04 (Tex. App.–Corpus Christi 1999, pet. denied).

The trial court shall in its divorce decree order a division of the marital estate in a

manner that it deems just and right. TEX. FAM. CODE ANN. § 7.001 (West 2006). The

trial court is not required to divide the marital estate equally; however, its division must

be equitable. Zieba, 928 S.W.2d at 790. ―The trial court‘s discretion is not unlimited,

and there must be some reasonable basis for an unequal division of the property.‖

O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.–Austin 2002, no pet.). In deciding

whether a reasonable basis exists for an unequal division of the marital estate, the trial

court may consider ―such factors as the spouses' capacities and abilities, benefits which

the party not at fault would have derived from continuation of the marriage, business

opportunities, education, relative physical conditions, relative financial condition and

obligations, disparity of ages, size of separate estates, and the nature of the property.‖

Murff, 615 S.W.2d at 699.

B. Discussion

In its final decree of divorce, the trial court stated that it divided the marital estate

in a manner it deemed just and right. However, the final judgment does not state the

values of any of the property divided and does not set out the amount of the debt each

party is responsible for paying. Instead, the values of some of the property were

included in the trial court‘s findings of fact. Although the trial court did determine the

values of some of the property awarded to each party in its findings of fact, it did not

provide values for all of the property awarded, and many of the values were merely

9
based on Maribel‘s assertions at trial. In its findings of fact, the trial court determined

that the values of the property it divided are as follows:

Luis‘s interest in the 15 acre tract of land $20,000.00
Luis‘s furniture $500.00
Maribel‘s furniture $7,000.00
Cash $9,153.00
Three Harley Davidson motorcycles $60,000.00
Ford F150 truck $27,000.00
O.M.T. and the equipment used in the business $150,000.00
Dargel boat $2,500.00
Gun collection $15,000.00
Gold coin collection and $500 bill $6,500.00
Equity in the property on Date Palm Drive $8487.32
Vehicles and trailers in Luis‘s possession $7,600.00
Grizzley Camouflage 4x4 4-wheeler Unknown value
Maribel‘s IRA5 Unknown value
Vehicles in Maribel‘s possession Unknown value
TOTAL VALUE OF MARITAL ESTATE: $313,740.32

Based on these findings, the value of the marital estate actually divided in the judgment

was $313,740.32.

The trial court awarded Luis the property on Pleasantview Drive as his separate

property. The trial court awarded Luis the following marital property6:

His interest in the 15 acre tract of land $10,000.007
Furniture in his possession $500.00
Cash in his possession $9,153.00
5
We note that at trial, no evidence was presented that Maribel actually had an IRA or of the value
of that IRA, if any.
6
The trial court ordered Luis to pay the following debts: (1) the sum of $5,000 to Maribel for
improvements made to his separate property; (2) $10,000 to Maribel for her interest in the 15 acre tract of
land; (3) $3,000 to Maribel for her interest in the gold coin collection and $500 bill; (4) debts and taxes on
the real property awarded to him; (5) debts on all motor vehicles and motorcycles in his possession; (6)
credit card debt, if any in his name ; (7) all debts incurred solely by him; and (8) all taxes, etc., on real and
personal property awarded to him. The trial court did not determine how much debt, if any, Luis owed on
the real and personal property awarded to him. In the above charts, we have already accounted for the
known amount of debts Luis was ordered to pay.
7
The trial court stated that it was awarding Maribel half of Luis‘s interest in the 15 acre tract of
land. The trial court found that Maribel should receive $10,000; therefore, Luis was awarded the other
half—$10,000.

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Harley Davidson motorcycles $60,000.00
The Ford F150 truck $27,000.00
Vehicles and Trailers $7,600.00
The business known as O.M.T. Transportation and/or
O.M.T. Utilities and equipment $150,000.00
Dargel boat $2,500.00
Grizzley Camouflage 4x4 4-wheeler Unknown value
Gun collection $15,000.00
Gold coin collection and $500 bill $3,500.008
TOTAL AWARDED TO LUIS: $285,253.00

Maribel received the following marital property:

Maribel‘s interest in the 15 acre tract of land $10,000.00
Maribel‘s interest in the gold coins and $500 bill $3,000.00
Palm Date property Equity of $8487.32
Furniture in Maribel‘s possession $7,000.00
Clothing, jewelry, and other personal effects in Maribel‘s
possession Unknown value
Cash in Maribel‘s possession Unknown value
Maribel‘s IRA Unknown value
All motor vehicles in Maribel‘s possession Unknown value
TOTAL AWARDED TO MARIBEL: $28,487.329

According to the trial court‘s findings of fact, it appears that Luis received $285,253.00

of the marital estate and Maribel received $28,487.32.10 Therefore, Maribel received

9% of the marital estate and Luis received 91% of the marital estate. Accordingly,

based on the trial court‘s findings of fact, the trial court divided the marital estate

disproportionately in favor of Luis.

8
The trial court required Luis to pay Maribel $3,000 for her interest in the gold coins and $500 bill.
9
The trial court ordered Maribel to pay the following debts: (1) the balance due on the
promissory note in the original amount of $81,000 for the mortgage of the Date Palm property; (2) all
debts on all motor vehicles in her possession; (3) taxes on any real property awarded to her; (4) credit
card debt in her name; (5) all debts incurred solely by her after March 9, 2001; and (6) all taxes, etc., due
on the real and personal property awarded to her. Again, in its judgment and findings of fact, the trial
court did not provide any values for the amount of debt owed by Maribel.
10
Although, the amount of the parties‘ debt is a consideration in determining the division of the
marital estate, we have already accounted for the amount of known debts in our analysis. The trial court
did not attribute values to the other debts it ordered the parties to pay. Therefore, these unknown
amounts do not affect our analysis.

11
 In its conclusions of law, the trial court stated that Luis did not request a

disproportionate division of the community estate. And, upon our review of the trial

court‘s findings of fact and conclusions of law and the record before us, we find nothing

to support an unequal division of the property in Luis‘s favor. See O'Carolan, 71 S.W.3d

at 532.

Although Luis alleged in his counter petition for divorce that Maribel was guilty of

cruel treatment toward him, the trial court did not make any findings that would support

such a conclusion and it did not draw such a conclusion from the findings it did make.11

11
The trial court made the following findings of fact:

8. There was evidence of family violence. [Luis] committed family
violence when he and [Maribel] were together. [Luis] threatened
her, choked her and spit in her face. Police were called out to
the residence 15 to 20 times. There were several times [Maribel]
filed police reports about guns. [Luis] showed up with a gun at
least two times at [Maribel‘s] mother‘s house when [Maribel] was
there.

....

30. [Luis] does not know if the profits from the sales of trucks and
other things he sells are indicated anywhere in the taxes.

31. [Luis] does not know how many vehicles he has purchased and
does not keep records and he does not have all the vehicles
records [sic] to disclose in the Inventory.

....

43. [Maribel] denied [Luis] access to his son on Father‘s Day when
[Luis] was using drugs. [Maribel] took her son from [Luis] and
called the police department. [Luis] left a note on [Maribel‘s]
doorstep admitting that he was using drugs and he was in
possession of cocaine at the time.

44. [Luis] has the habit of hanging around with the wrong crowd and
has dealt drugs before.

45. [Luis] has taken their son to bars. For his birthday, [Maribel‘s]
son said he wanted a pool table because his dad takes him to
shoot pool at the Jungle Inn. [Maribel] took her son out of a bar
in 2001, when he was 2 ½ years old, when he was there with his
father.

12
See Murff, 615 S.W.2d at 699 (setting out the factors the trial court may consider when

awarding a disproportionate share of the marital estate to one party). The parties‘ ages

were roughly the same, and there was no evidence that Luis had any physical or mental

disabilities warranting an unequal division of the marital estate. See id. There is no

evidence that Maribel had a separate estate, but the trial court concluded that Luis had

a separate estate with a value between $40,000 and $45,000. See id. The record

shows that Luis had a significantly higher income, earning capacity, and business

opportunities, which are important factors to consider when dividing the marital estate. 12

See id. Disparity in earning capacity is generally a factor weighing in favor of awarding

a disproportionate share of the community property to the lower income earner—here,

Maribel. O'Carolan, 71 S.W.3d at 532-33. The couple had one child who was to live

with Maribel—therefore, there was no evidence that the needs of the child provided the

basis for the disproportionate award of the marital estate. Finally, there is no evidence

that the nature of the property compelled an unequal distribution, especially considering

that Luis did not request an unequal distribution of the marital estate. Murff, 615 S.W.2d

at 699.

The trial court did not make any findings of fact or issue any conclusions of law

regarding its basis for the unequal division of the marital estate in favor of Luis.

46. In 2004, [Maribel] obtained a Protective Order against [Luis].

47. There are major changes in the child when he returns from visitation with
[Luis]. He comes back saying [Maribel] is the worst mom, calling her
names, and referring to her as being fat and asks how she can afford
everything she buys.
12
The trial court found that Luis owned a business worth $150,000, that his annual income was
$87,459 and that Maribel‘s annual income was $50,000 plus bonuses. The trial court did not state the
amount of bonuses Maribel receives annually. However, she testified that she received approximately
$7,000 in bonuses.

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Moreover, because Maribel and Luis were still married, assuming the trial court took the

separation into consideration, the property they continued to acquire between the date

of separation and divorce was still considered community property, unless either party

could establish that the property was separate property. Wilson v. Wilson, 44 S.W.3d

597, 601 (Tex. App.–Fort Worth 2001, no pet.). Luis provided no evidence that the

property acquired after the separation was his separate property. See TEX. FAM. CODE

ANN. § 3.001 (West 2006) (providing that separate property includes: (1) property

owned or claimed by either spouse before marriage; (2) property acquired during

marriage by gift, devise, or descent; and (3) recovery for personal injuries, except for

loss of earning capacity). Moreover, the trial court did not make any findings to support

a conclusion that the property should be unevenly divided because the couple had been

separated.

Therefore, we cannot conclude that there is a reasonable basis for the unequal

division of the property in favor of Luis in this case. See O'Carolan, 71 S.W.3d at 532.

Accordingly, we conclude that the trial court‘s judgment was manifestly unfair, and it

abused its discretion in its division of the marital estate. See id. at 532; Mann, 607

S.W.2d at 245; Vandiver, 4 S.W.3d at 303-04. We sustain Maribel‘s first issue.

III. CHILD SUPPORT

By her second issue, Maribel contends that the trial court reversibly erred by

deviating from the child support guidelines without justification. Maribel argues that the

evidence conclusively supports a $1,000 per month child support obligation.

A. Standard of Review and Applicable Law

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 We review a trial court's order of child support under an abuse of discretion

standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Smith v. Smith, 143

S.W.3d 206, 217 (Tex. App.–Waco 2004, no pet.) (applying the abuse of discretion

standard to a trial court's downward deviation from child support guidelines). In

deciding whether a trial court has abused its discretion, we must determine whether the

court acted without reference to any guiding rules and principles. Downer, 701 S.W.2d

at 241-42.

Section 154.130 of the family code requires a trial court ordering child support

that varies from the amount computed by applying the percentage guidelines to make

certain findings including: (1) whether the application of the guidelines would be unjust

or inappropriate; (2) the net monthly resources of the obligor and obligee; (3) the

amount of support that would result if the guidelines were followed; (4) the percentage

applied by the court to the obligor's net monthly resources that yields the child-support

obligation set by the court; and (5) the specific reasons why the amount ordered by the

court varies from the amount called for by application of the guidelines. TEX. FAM. CODE

ANN. § 154.130(a)(3), (b) (West Supp. 2010); In re S.B.S., 282 S.W.3d 711, 717 (Tex.

App.–Amarillo 2009, pet. denied). Such findings are mandatory and the failure to make

them when required constitutes reversible error. In re S.B.S., 282 S.W.3d at 717.

B. Discussion

Here, Maribel timely filed her request for findings of fact and conclusions of law.

After this Court abated the case and remanded it to the trial court, the trial court filed its

findings of fact and conclusions of law.13 In the findings of fact, the trial court found that

13
We note that although, in its judgment, the trial court ordered Luis to pay $500 per month in
child support, in its findings of fact it found that Luis‘s income required him to pay $1,000 per month in

15
Luis‘s ―gross income for 2006 was $87,459.04 and his net monthly available resources

is $5,002.83, which would result in a child support amount of $1,000.‖ This amount

follows section 154.125(b)‘s guideline providing that an obligor who has one child

should pay child support equal to twenty percent of the obligor's net resources. See

TEX. FAM. CODE ANN. § 154.125(b) (West Supp. 2010). However, in its judgment, the

trial court ordered Luis to pay $500 per month in child support. Therefore, in its

judgment, the trial court varied from the amount computed by applying the percentage

guidelines. See id. However, the trial court failed to make findings pursuant to section

154.130 regarding the monthly resources of obligee, the percentage applied by the

court to the obligor‘s net monthly resources that yielded the child-support obligation set

by the court, and the specific reasons why the amount ordered by the trial court varied

from the amount called for by application of the guidelines. See TEX. FAM. CODE ANN. §

154.130(a)(3), (b) (emphasis added).

Because the trial court failed to make these required findings, we conclude that

the trial court abused its discretion. See Worford, 801 S.W.2d at 109; Smith, 143

S.W.3d at 217. Accordingly, we sustain Maribel‘s second issue.

IV. CHILD POSSESSION ORDER

By her third issue, Maribel contends that the trial court abused its discretion in its

possession order. She argues that the trial court‘s order deviated from the standard

possession order as provided by sections 153.311 through 153.317 of the family code.

Although Maribel cites these sections of the family code, she provides no

authority stating that a trial court abuses its discretion by modifying or deviating from the

child support. There is nothing in the record to explain this discrepancy between the judgment and the
trial court‘s findings of fact.

16
standard possession order. Therefore, she has not met her burden of showing that the

trial court abused its discretion in this case. See TEX. FAM. CODE ANN. § 153.256 (West

2008) (providing that a trial court may deviate from the standard possession order

depending on factors such as: (1) the age, developmental status, circumstances,

needs, and best interest of the child; (2) the circumstances of the managing conservator

and of the parent named possessory conservator; and (3) other factors). We overrule

Maribel‘s third issue.

V. GEOGRAPHIC RESTRICTION

By her fourth issue, Maribel contends that there was no evidence for the trial

court ―to determine that a geographical restriction to Hidalgo County was appropriate

and in the best interest of the child.‖14 Maribel argues that, pursuant to section 153.134

of the family code, the trial court ―should have specified that Maribel has the right to

determine the primary residence of the child without regard to geographic location.‖

Maribel provides no other authority and makes no other arguments to support her

contention.

Pursuant to section 153.134 of the family code, in rendering an order appointing

joint managing conservators, the trial court shall

designate the conservator who has the exclusive right to determine the
primary residence of the child and . . . establish, until modified by further
order, a geographic area within which the conservator shall maintain the
child's primary residence . . . or . . . specify that the conservator may
determine the child‘s primary residence without regard to geographic
location.

14
The legal and factual sufficiency of the evidence are factors which can be considered in
determining whether an abuse of discretion has occurred. In re J.C.K., 143 S.W.3d 131, 135 (Tex. App.–
Waco 2004, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex. App.–Houston [14th Dist.] 2002,
no pet.).

17
Id. § 153.134(b)(1)(A) (West 2008). ―[T]he purpose of imposing a geographic residency

restriction is to ensure that those who have rights to possession of the child are able to

effectively exercise such rights.‖ In re S.M.D., 329 S.W.3d 8, 22 (Tex. App.–San

Antonio 2010, no pet.).

The trial court appointed Maribel and Luis as joint managing conservators of the

child. Therefore, the trial court had authority, pursuant to section 153.134, to establish

that Maribel must maintain the child‘s primary residence in Hidalgo County. See Bates

v. Tesar, 81 S.W.3d 411, 440 (Tex. App.–El Paso 2002, no pet.) (―The revised language

[of section 153.134] requires the court to specify which parent shall determine the

residence of the child and then permits the court to establish a geographic area in which

that parent shall establish the child's residence or allow the parent to establish the

residence without restriction. The court may define this geographic area as ‗the county

in which the child is to reside and any contiguous county thereto. . . .‘‖). Moreover,

Maribel provides no authority and points to nothing in the record supporting a

conclusion that the trial court abused its discretion by imposing a geographic residency

restriction. See Stucki v. Stucki, 222 S.W.3d 116, 123-24 (Tex. App.–Tyler 2006, no

pet.) (explaining that the best interest of the child is the primary concern in determining

possession and access to the child and that the trial court‘s order establishing a

geographic restriction will only be reversed if the trial court abuses its discretion) 15;

Bates, 81 S.W.3d at 440 (finding that the trial court did not abuse its discretion in

15
Although Maribel generally asserts that there is no evidence that a geographic restriction was
in the child‘s best interest, she does not provide a clear argument with citation to appropriate authority in
support of her assertion. See TEX. R. APP. P. 38.1(i).

18
establishing a geographic residency restriction). Therefore, we overrule Maribel‘s fourth

issue.

VI. CONCLUSION

We reverse the judgment insofar as it pertains to the division of the marital estate

and the amount of child support, and we remand to the trial court for proceedings

consistent with this opinion. In all other respects, the judgment is affirmed.

_____________________
ROGELIO VALDEZ
Chief Justice

Delivered and filed the
30th day of June, 2011.

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