Eduardo Fuentes v. Rebecca Jasso--Appeal from 383rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EDUARDO FUENTES,

Appellant,

v.

REBECCA JASSO,

Appellee.

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No. 08-03-00109-CV

Appeal from the

383rd District Court

of El Paso County, Texas

(TC# 96CM7305)

MEMORANDUM OPINION

Eduardo Fuentes appeals the trial court=s order naming Rebecca Jasso (his ex-wife) as primary conservator of their son. Finding no abuse of discretion, we affirm.

Facts

In 1997, the Fuentes-Jasso divorce decree gave the parties joint custody of their minor child, A.F. Under the decree, Fuentes had the exclusive right to establish the child=s residence, so long as that residence was in El Paso. There was no child support ordered. Although there are conflicting statements, the record reveals A.F. divided his time between parents until January 1999, when the boy began living with Jasso, and Fuentes began making child support payments. In 2001, Fuentes and Jasso agreed that A.F. should live in Tucson with Fuentes. Jasso says the agreement was temporary, a point which Fuentes disputes. Eleven months later, A.F. moved back to El Paso with Jasso. Fuentes asserts that once A.F. returned to live with Jasso, she began limiting his access to the boy. In July 2002, Jasso filed a motion to modify the divorce decree, alleging material and substantial changes since the initial custody order, and asking the court to designate her as primary conservator with the exclusive right to establish the boy=s residence. Fuentes filed a countermotion, asking that the geographic limitation be lifted so that A.F. could live with him in Tucson. The trial court denied Fuentes= motion, and granted Jasso=s motion.

Standard of Review

A trial court=s judgment regarding the best interest of a child in terms of child support and conservatorship is a discretionary function that will not be reversed absent an abuse of discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.--Corpus Christi 1990, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Issue One: Material and Substantial Change Warranting Modification

In his first issue, Fuentes alleges the trial court abused its discretion in finding that a material and substantial change had occurred justifying a modification in the divorce decree. Both appellee=s motion to modify custody, and appellant=s countermotion, required proof of a material and substantial change in circumstances and that a modification was in the child=s best interests. Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2004). A party alleging a material and substantial change in order to support his motion cannot then deny that a material and substantial change has occurred for the purposes of the opposing party=s motion to modify. Thompson v. Thompson, 827 S.W.2d 563, 566 (Tex. App.--Corpus Christi 1992, writ denied). In his countermotion, appellant judicially admitted material and substantial changes had occurred since the initial custody order. Thus, he cannot now challenge the trial court=s finding that a material and substantial change had occurred as an abuse of discretion. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.--Houston [14th Dist.] 1995, no writ); Thompson, 827 S.W.2d at 566. The pleadings and testimony show that since the initial custodial order, A.F.=s father has moved out of the state and has remarried, and the child=s mother has remarried and borne another child. In considering whether a material change of circumstances has occurred, Texas courts have held that remarriage of one or both parents is a pertinent factor. Barron v. Bastow, 601 S.W.2d 213, 214-15 (Tex. Civ. App.--Austin 1980, writ dism=d).

Fuentes cites Smith v. Clements, 424 S.W.2d 326, 328 (Tex. Civ. App.--Amarillo 1968, writ ref=d n.r.e.), for the notion that remarriage is not in itself sufficient evidence of changed circumstances to warrant a custodial change. However, Smith does not hold that remarriage can never be one of the factors relating to a substantial change.

Fuentes also asserts that his move from El Paso to Arizona is not material and substantial. It is true that in certain instances, Texas courts have held that a move was not a material change warranting a change in custody. See, e.g., Short v. Short, 163 Tex. 287, 291, 354 S.W.2d 933, 936 (1962) (in case where the court transferred custody from mother to father, the fact that the father moved did not represent a material and substantial change); Belford v. Belford, 682 S.W.2d 675, 76-77 (Tex. App.--Austin 1984, no writ). Nevertheless, there are other situations in which a parent=s move more than 300 miles away from the other parent=s residence has been held a material and substantial change. Bates v. Tesar, 81 S.W.3d 411, 416 n.1 (Tex. App.--El Paso 2002, no pet.).

Here, the record reflects there is sound basis for a court to find a material and substantial change has occurred in A.F.=s life. His parents have both remarried, his father has changed careers and left the state, and he has a new half-sister. In addition, the decree that gave Fuentes the exclusive right to establish his son=s place of residence restricted that right to the El Paso city limits. Given the fact that Fuentes no longer resides in El Paso, and he has the exclusive right to establish a residence for the child that must be in El Paso, the custody order had clearly become unworkable and was ripe for modification. The trial court=s order is neither arbitrary nor unreasonable. We therefore overrule appellant=s first issue.

Issues Two and Three: Best Interest of Child

In his second issue, Fuentes asserts the trial court abused its discretion by making Jasso primary conservator. In his third issue, Fuentes asserts that the trial court abused its discretion in denying his countermotion to lift the geographic limitation on A.F.=s residence.

A court=s primary consideration in any conservatorship case shall be the best interest of the child. In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). Courts consider many factors in determining the child=s best interest. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); See also In re Doe 2, 19 S.W.3d 278, 282 n.20 (Tex. 2000) (recognizing that intermediate courts employ the Holley factors to ascertain best interest in conservatorship cases). Those factors include, but are not limited to:

(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 plans for the child by these individuals;

(6) the stability of the home;

(7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(8) any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 371-72.

Initially, we note that this record reflects A.F. has two loving parents who provide for him, there are no allegations of abuse or neglect, the child is well-adjusted, and states he loves and is comfortable with both parents and his stepparents. Fuentes urges Jasso has shown a lack of stability, which should preclude entrusting her with primary conservatorship. This argument is weakened, however, by the fact that during the time he claims she was not stable, Fuentes placed his son in Jasso=s care. Fuentes also relies on the testimony of Jasso=s estranged mother and sister, who testified that they consider Fuentes to be the better parent, as well as the testimony of a court-appointed social worker who conducted a social study in the case. In her report, Yvette Ramirez of Domestic Relations Family Court Services detailed the problems between Jasso and her mother and sister. Jasso=s mother said she feels Jasso has never made A.F. a priority in her life, and limits the grandmother=s access to the boy. Jasso=s sister testified to similar concerns about her sister=s stability and inability to prioritize A.F. in her life.

However, Ramirez also spoke with Jasso=s cousin, who said she is a good, loving, and patient mother. A friend of both Jasso and Fuentes opined while Fuentes is a good father, A.F. should remain with his mother. The counselor also interviewed A.F., who said he has fun with his mother, misses his father, and is treated well by his stepparents. Ramirez concluded that both parents have the ability to meet A.F.=s needs. Jasso=s plan for her son=s care includes keeping him at Jesus Chapel School, enrolling him in extracurricular activities, joining a church, and encouraging him to one day attend college. She also said she would do whatever is necessary for the boy to maintain his relationship with his father. Ramirez concluded her report by stating, Aeach have demonstrated the ability and capability to provide for their son . . . .@

The record shows the trial court was also impressed by both parents:

The Court: Frankly, from what I=ve seen and from what I=ve read in the reports, it=s quite obvious to me that both parents care a great deal about this child. Both parents love this child. And I anticipate that regardless of what decision I make, that both parents are going to continue to remain very active in the child=s life.

We must conclude that the trial court acted with reference to guiding principles of family law and with concern for the best interest of the child. We cannot say that his decision was arbitrary or unreasonable. We recognize the painful reality that where two devoted parents are divorced, this sort of hard choice is sometimes inevitable. Along with the trial court, we voice our confidence that both parents will remain active, positive influences on their son=s life. We overrule appellant=s issues two and three.

Conclusion

We affirm the ruling of the trial court.

SUSAN LARSEN, Justice

May 13, 2004

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.