In the interest of J.I.O., a child--Appeal from 340th District Court of Tom Green County

Opinion filed June 7, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00369-CV

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   IN THE INTEREST OF J.I.O., A CHILD

On Appeal from the 340th District Court

Tom Green County, Texas

Trial Court Cause No. C-04-0803-F

M E M O R A N D U M O P I N I O N

Alisha Tashae Clayton appeals from the trial court=s order granting Johnny Antuan Orr=s petition to modify the parent-child relationship of J.I.O. We affirm.

Alisha and Johnny were married on December 15, 1998, and J.I.O. was born on March 19, 2001. Alisha and Johnny ceased living together as husband and wife on July 17, 2003. A child support review order approved by the trial court on February 18, 2004, designated Alisha and Johnny as joint managing conservators with Alisha having the right to determine the primary residence of the child. The trial court entered a divorce decree on September 3, 2004, that ACONFIRMED and continue[d] in full force and effect@ the child support review order.

Johnny filed a petition to modify on November 22, 2004, seeking to be named the conservator with the right to determine the primary residence of J.I.O. On December 22, 2004, the trial court entered temporary orders naming Johnny as the joint managing conservator with the right to determine the primary residence of the child. The trial court entered its final order granting Johnny=s petition to modify and naming him as the conservator with the right to determine the primary residence of J.I.O. The trial court also ordered Alisha to pay $150 per month in child support.

In her first and third issues on appeal, Alisha argues that the trial court erred in granting the modification of conservatorship and naming Johnny as the conservator with the right to determine the primary residence of the child. We review a trial court=s order modifying conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Jenkins v. Jenkins, 16 S.W.3d 473 (Tex. App.CEl Paso 2000, no pet.). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than the appellate court in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer, 701 S.W.2d at 241 42; Bates v. Tesar, 81 S.W.3d 411, 424 (Tex. App.CEl Paso 2002, no pet.); Jenkins, 16 S.W.3d at 477. The trial court is in the best position to observe the demeanor and personalities of the witnesses. Bates, 81 S.W.3d at 424. Thus, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id.

While legal and factual sufficiency issues are not independent grounds of error in cases of this nature, they are factors that can be considered in determining whether an abuse of discretion has occurred. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.CFort Worth 2002, pet. denied). An appellate court makes a two prong inquiry when it determines whether legal or factual insufficiency has resulted in an abuse of discretion: (1) whether the trial court had sufficient information upon which it might exercise its discretion and (2) whether the trial court erred when it applied that discretion. In re T.D.C., 91 S.W.3d at 872; Bates, 81 S.W.3d at 425. The sufficiency review is related to the first inquiry. If it is revealed in the first inquiry that there was sufficient evidence, then we must determine whether the trial court made a reasonable decision, and that involves a conclusion that the trial court=s decision was neither arbitrary nor unreasonable. Bates, 81 S.W.3d at 425.

In analyzing a legal sufficiency or no evidence issue, an appellate court must consider the evidence in the light most favorable to the challenged finding and must indulge every reasonable inference that would support it. A reviewing court must credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. The appellate court must determine whether the evidence at trial could enable reasonable and fair minded people to find the facts at issue. A no evidence challenge may be sustained only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

When we consider legal sufficiency in this context, if there is any probative evidence that supports the trial court=s finding, then there is no abuse of discretion. Bates, 81 S.W.3d at 425. This remains true even though we might have found the issue otherwise; we cannot substitute our judgment for that of the trial court. Id.

Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006) provides in relevant part:

The court may modify an order 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 earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.

Johnny filed his petition to modify on November 22, 2004. The petition was filed within one year of both the child support review order and the divorce decree. Therefore, Johnny was required to comply with Tex. Fam. Code Ann. ' 156.102 (Vernon Supp. 2006), which states in relevant part:

(a) If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

(b) The affidavit must contain, along with supporting facts, at least one of the following allegations:

(1) that the child=s present environment may endanger the child=s physical health or significantly impair the child=s emotional development;

(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

Johnny filed the affidavit required by Section 156.102 with his petition to modify. In the affidavit, Johnny alleged that the present living arrangements of J.I.O. and Alisha=s relationship with a registered sex offender may endanger J.I.O.=s physical health or impair her emotional development.

At the hearing on the petition to modify, Johnny testified that, after his divorce from Alisha, he learned that Alisha was living with Aaron Thomas, a registered sex offender. Johnny also learned that Alisha was pregnant with Aaron=s child.

Alisha and Aaron purchased a house together in January 2004. Alisha did not inform the trial court at the divorce hearing that she owned a house, and she did not tell Johnny that she had purchased the house with Aaron. Alisha was pregnant with Aaron=s child at the time of the divorce hearing; however, she did not inform that trial court or Johnny that she was expecting a child. Alisha testified at the hearing that she and Aaron purchased the house together but that Aaron does not live in the house with her. Alisha stated that Aaron lived with his mother, four houses down from the house he and Alisha purchased together. Alisha testified that she was not employed and that she was dependent on Aaron financially. Alisha further testified that J.I.O. had not been around Aaron since the trial court entered its temporary orders in December 2004.

Alisha testified that her brother Elijah was living with her in the home she purchased with Aaron. The record does not show that Elijah was living with her at the time of the divorce decree. Elijah was not employed, and he had previously used crack cocaine. Elijah also had a conviction for assaulting a police officer.

Johnny testified that, since J.I.O. has been living with him, her social skills have greatly improved. J.I.O. and Johnny live in Arkansas with his parents. J.I.O. has many friends, and she also has family in Arkansas. Johnny testified that J.I.O. has benefitted by living in Arkansas with him, and Johnny=s mother testified that it would be in J.I.O.=s best interest to remain in Arkansas with Johnny.

The trial court did not abuse its discretion in finding that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the divorce decree was rendered and that modification was in the best interest of J.I.O. Alisha was in a relationship with a registered sex offender (Aaron), and they had a child together. Neither the trial court nor Johnny was aware that Alisha was pregnant at the time of the divorce. Alisha and Aaron owned a home together, and Alisha was financially dependent on Aaron. Again, the trial court and Johnny were not informed that Alisha and Aaron owned a home together. There was conflicting evidence on whether Alisha and Aaron live together in the home they own together; however, the record shows Aaron was very present in Alisha=s life. Alisha testified that she did not Asee a problem@ with Aaron taking care of J.I.O. Alisha=s brother, a former drug user with an assault conviction, lived in the home with Alisha.

There is some evidence of a material and substantial change in circumstances, and the evidence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. The trial court had before it sufficient information upon which it might exercise its discretion, and based upon the evidence and the applicable law, the trial court did not err in the application of that discretion. See In re T.D.C., 91 S.W.3d at 872. After a consideration of all of the factors relating to an abuse of discretion in cases of this nature, we hold that the trial court did not act in an arbitrary and unreasonable manner and did not act without reference to guiding principles. Alisha=s first and third issues on appeal are overruled.

In her second issue on appeal, Alisha argues that the trial court abused its discretion in ordering her to pay child support to Johnny. Tex. Fam. Code Ann. ' 154.001 (Vernon Supp. 2006) provides that the trial court may order either parent to pay child support until the child is eighteen years of age, graduates from high school, or is emancipated through marriage or removal of the disabilities of a minor. The amount of support ordered for the benefit of a child shall be determined without regard to the sex of the obligor, obligee, or child or the marital status of the parents of the child. Tex. Fam. Code Ann. ' 154.010 (Vernon 2002). The trial court did not abuse its discretion in ordering Alisha to pay $150 per month in child support. Alisha=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

June 7, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.