COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS
CATHERI

NE B EL L , Appellant,

v. CHRI STOPHER CAMP BEL L , Appellee

. § § § § § § No. 08-09-00247- CV

Appea l from the 388th District Court of El Paso County , Texas (TC#2006CM7838)

O P I N I O N I n two issues, Catherine Be ll, Appellant, complains that the trial court abused its discretion when it named Christopher Campbell, Appellee , joint manag ing con s e r v a to r w ith the exclusive rig ht to establish the primary

residenc e of the ir child. We aff irm. BACK GR OUND Appellant and Appellee marrie d in 2004 and their child, A.C., was born in Fe bruar y 2005. Appellant enlisted in the Army in November 2005, and was stationed at For t Br ag g , North Carolina. After separ ating in the latter part of 2005, Appellant petitioned for d i v o rc e and Appellee filed a
counter peti t i o n fo r divorce

. After a temporar y -orde rs hear ing in Fe bruar y 2007, which was conducte d in Appellant’s absenc e while she was deploy ed by the U.S. Army to Afg hanistan, the trial
court na med bot h parties joint manag ing conservators with Appellee ha ving the exclusive right to desig nate the temporar

y primary residenc e of A.C. within El Paso County

. L ater , a final hear ing was held, and afte r considering the testimony of the parties and their rela tives, the trial court g rante d the divorce , n amed Appellant and Appellee joint manag ing conser vators, and awa

rded Appellee the exclusive right to desig nate A.C.’s pr imary residenc e within El Paso County

.DISCUSSIO N

Appellant complains that the trial court abused its d i s cr et ion in g ranting Appellee the exclusive rig ht to establish the residenc e of A.C. beca use: (1) for the last two y ear s, Appellee failed
to comply with the trial court’s temporar y order that he attend Children Cope Wit h Di v o rc e, also known as “COPE,” a class desig ned to teac h eff ective pare nting during separ ation and divorce ; and (2) the e vidence demonstrated tha t such appointment was not in the best intere st of A.C. Standard of Review The Family Code authorizes a trial court to name both pare nts joint manag ing conser vators if it finds such desig nation to be in the best interest of the child. T E X
. F A M
. C O D E AN N
. §§ 153.002, 153.134(a) (Ve rnon 2008). The trial court is also require d, in its order , to desig nate one of the joint
manag ing conser

vators as having the exclusive rig ht to deter mine the child’s primary residenc e, to allocate other rig hts and responsibilities of the pa rents, and to include , among other re quirements, provisions to minimi ze disruption of the ch i ld’s education, daily routine, and association with friends. T E X
. F A M
. C O D E AN N . § 153.134(b) ( Ver non 2008). We revie w a trial court’s order reg arding co n serva torship under an abuse- of-discr etion standard. Gillespie v. Gillespie , 644 S

. W

. 2 d 4 4 9 , 4 51 (Tex. 1982); Cisneros v. Dingbaum , 224 S.W .3d 245, 257 (Tex. App. – El Paso 2005, no pet.). A trial court abuses its discretion when it acts arbitra rily and unrea sonably or without ref ere nce to any g uiding principles. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S.Ct

. 2279, 90 L .Ed.2d 721 (1986). Upon deter mining that the abuse- of-discr etion-standar d applies, we eng ag e in a two-prong ed inquiry : (1) Did the trial court have sufficie nt information upon which to exercise its discretion; and (2) did the tria l court er r in its application of discre tion? Cisneros , 224 S.W .3d at 257, citing Franco v. Franc o , 81 S.W .3d 319, 333 (Tex. App. – El Paso 2002, no pet.).We rec og nize that the trial court is best situated to obse rve the demea nor and pe rsonalities of the witnesses and can “fe el” the forc es, power s, and influence s that cannot be discerne d by mere ly

rea ding the rec ord. Cisneros , 224 S.W .3d at 257, citing Bates v. Tesar , 81 S.W .3d 411, 424 (Tex. App. – El Paso 2002, no pet.) a nd Jenk ins v. Jenk

ins , 16 S.W .3d 473, 477 (Tex. App. – El Paso 2000, no pet.). Consequently , we aff ord trial courts wide latitude in de termining the best interests of the child. Gillespie , 644 S.W .2d at 451. Theref o re , we cannot conclude that the trial court abused its discretion simply beca use we may have ruled differ ently under the same circ umstances. E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W .2d 549, 558 (Tex. 1995)

. I f some evidenc e of a substantive and probative char acte r exis ts t o s u p port the trial court’s decision, no abuse of discretion has occur

red. Cisneros , 224 S.W .3d at 257; Bates , 81 S.W .3d 424-25; Jenk ins , 16 S.W .3d at 477. Best-Inte rest-of-Child Evidence Tempora ry -Orde rs Hea

ring After enter ing the Army and separ ating from Appellee , Appellant’s pare nts car ed for A.C., and when the temporar

y -orders hear ing was conducte d in Fe bruar y 2007, Appellant had been deploy ed to and was stationed in Afg hanis t an . At the temporar y -orde rs hear ing, Appellee , when asked who would take car e of A.C. while he was at work, first responde d “a baby sitter.” Howeve r, Appellee admitted that the baby sitter was his g irlfriend, Esther , with whom he had lived for approximately one y ear at that time. I n its temporar y order s, the trial court, in part, named Appellee

a temporar

y joint manag ing conser

vator, g ave him a temporar y , exclusive rig ht to desig nate A.C.’s primary residenc e in El Paso, prohibited him from permitting an unrela ted adult, with whom he had an int imate or dating rela tionship, to rema in in th e residenc e with the child from 8 a.m. t o 8 p.m., and re quired that he attend the COPE prog ram.Final Divor ce H ear ing

At the final divor ce h ea ring , the trial court judicially noticed that Appellee previously testified that his g irlfriend and baby sitter, Esther, had been living with him. Appellee admitted that he had violated t he trial court’s temporary order s requiring him to attend the COPE p ro gram and prohibiting hi m from permitting an unrela ted adult with whom he had an intimate or dating rela tionship to rema in in the re sidence with the child from 8 a.m. to 8 p.m. During both his 1
separ ation from Appellant and the pendenc y of the divorce proce eding s, Appellee had not only been living with Esther but ha d fathe red the ir two children a s well. The trial court also considere d evidenc e that since the parties’ separ ation in November 2005, Appellee had been e mploy ed in four or five diff ere nt jobs and had re sided in four or f ive diffe rent locations. At the time of the final divorce hear ing, Appellee was working the g rave y ard shift at WalMart and also held a part-time job, wo rk i n g m o re t h an 60 hours per wee k. He testified that he planned to enr oll A.C. in elementary school at ag e five

. There wer e no alleg ations of mental or phy sical abuse althoug h the trial court hear d evidenc e that A.C. had rec eived a burn to her fore head afte r running towards Appellee or Esther, one of whom

was holding a cig are tte. Appellee ’s mother, Ms. Ramos, who worke d at a medical clinic, testified that she applied a cre am used for radiolog ical burns to A.C.’s burn. Although Appellant’s mother, 2 Ms. Allen, took a photogra ph of t he burn which was admitted into evidenc e, it is not contained in the appellate rec ord. Appe llee informe d Appellant about the incident and explained tha t it was an

acc ident. On another occa sion, Ms. Ramos observe d that A.C. had an infec tion. She notified Appellee ,

A p p e l l e e t e s t i f

i e d t h a t h e d i d n o t a t t e n d t h e C O P E c l a s s e s b e c a u s e h e d i d n o t k n o w w h a t C O P E w a s . 1

T h e c r e a m w a s o r i g i n a l l y p r e s c r i b e d f o r A p p e l l e e ’ s g r a n d m o t h e r . 2who t hen directed her t o reque st that Ms. Allen, who had the i n s u ranc e card and a medical power

of attorne y , to take A.C. for medical c are . Ms. Allen took A.C. to an Army hospital from which

3 A.C. was transfe rre d by ambulance to another hospital, wher e she spent three day s rec eiving medical

car e. Ms. Allen acc ompanied A.C. in the ambulance during her transfe r. Appellee ar ri ved at the second hospital and was prese nt while Ms. Allen completed the admission paper s. Ms. Allen spent the night at the hospital w ith A.C., but A ppellee did not as he neede d to g o to w ork. Appellee , his mother, and his stepfather visited A.C. while she wa s hospitaliz ed. Be fore he was named joint manag ing conser vator, Appellee provided four or five pay ments of $100-$150 towards A.C.’s car e. Evidence was also prese nted that Appellee would play with A.C., take her to the park and to the movies, cooked for her, and bathed her. Appellee stated that he had

a specia l bond with A.C. and h e wa s s eeking to have custody of her beca use he felt A.C. would suffe r if remove d from the family members with whom she had been interac ting since she was born, including his and Appellant’s pare nts and other family members. Appellee testified that he did not

own a computer and did not be lieve he could aff ord to tr avel to visit A.C. in N orth Carolina based upon his earning s. The evidenc e showed that Appellant had been an enlisted member of the United States Army for sever al y ear s, was stationed at For t Br ag g , North Carolina, was in a stable work environment and
was progr essing admirably in her prof ession, from which she hoped to re tire after twenty or t hirty
y ear s of service

. As a result of her employ ment, Appellant was providing A.C. with medical, dental, and vision benef

its

. Appellant also explained the opportunities and restric tions rela ted to her
reque sts to be stationed in or near El Paso, wher e A.C. and all of the child’s other family members

A l t h o u g h t h e t e m p o r a r y o r d e r s a w a r d e d A p p e l l e e t h e i n d e p e n d e n t r i g h t t o c o n s e n t t o m e d i c a l a n d o t h e r 3
c a r e f o r A

. C

. , t h e e v i d e n c e i n d i c a t e d t h a t h e d i d n o t h a v e a f u l l u n d e r s t a n d i n g o f t h i s r i g h t

.wer e living. I n support of her req u es t t o have the exclusive rig ht to deter mine A.C.’s perma

nent residenc e, the evidenc e showe d that if A.C. was permitted to live with A ppellant, Appellant could work a shift that comported with A.C.’s schedule and would permit them to have more time toge ther, and that A.C. would have acc ess to: (1) g ood schools and day car e; (2) a varie d cultural community ; (3) c ommunity

prog rams; and ( 4) world- wide tra vel to non-comba t are as. Appellee testified that Appellant is a very g ood and loving mother who is capa ble of car ing for A.C. When in El Paso, Appellee had permitted Ap p el l an t to have almost unfetter ed acce ss to A.C

. When not in El Paso, Appellant communicated wit h A.C. by telephone and t hroug h the us e of web came ras, and Appellant stated that she was willing to purcha se the equipment nece ssary for Appellee to maintain visual communication with A.C. in the event she obtained the exclusive rig ht
to desig nate A.C.’s primary residenc e. Appellant testified that s h e wa s in favor of Appellee and A.C.’s g randpa

rents having acc ess to A.C. and, while unawa re of some potential financ ial responsibilities for secur ing the trave l nece ssary to allow Appellee and the g randpa rents to visit A.C.

or vice- versa , Appellant was g ener ally agr ee able to pay ing those nece ssary costs. I f assig ned

overse as, Appellant said she would like t o take A.C. with her and was will ing to pay all expenses to send A.C. to spend the summer with Appe llee. Appellant stated that she was not in any other persona l rela tionship beca use being involved in a rela tionship with any one other than Appellee , to whom she was still marrie d, could result in her being dishonorably

discharg ed fr om the Army and losing insurance cover ag e for A.C. After revie wing the rec ord, we find that the trial court’s decision to appoint Appellee joint
manag ing c onserva tor with the exclusive rig ht to establish primary residenc e falls within the zone

o f re asonable disag ree ment. The trial court was awa re of Appellee ’s non-complianc e wit h i t s temporar y order s and the o t h er complained- of evidenc e raised in Appellant’s appea l. As thetestimony showed, by residing in El Paso, A.C. would have acc ess to all o f h er fa m i l y members,

including Ap p el l an t wh en Appellant was able to return home. Additionally , all of A.C.’s family members in El Paso, including Appellant when not in El Paso, had c ommunicated and c oopera ted well tog ether

in further ance of A.C.’s ca re a nd well-be ing. A.C. was being well-provided for and
was not being mistreated or abused. Th erefore , we find the t rial court had sufficient, substantive, and probative evidenc e upon which to e x erc ise its discr etion. Cisneros , 224 S.W .3d at 257, citing Franco , 81 S.W .3d at 333. Considering all the evidence presented to the t rial court, we con cl u de that the trial court did not abuse its discretion in appointing Appellee to serve as the joint manag ing

conser vator with the e x clusive rig ht to establish A.C.’s primary residenc e. Id. Appellant’s issues
on appea l are overr

uled. CONCLUSION The trial c ourt’s judg ment is affirme d.

November

3, 2010 GUADA L UPE RI VERA, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.