### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00674- CV

Margo M illie Rom ero, A ppellan t

v. Alejandro Albert o Arguello, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -F M- 14- 0019 54, H ONO RAB LE SUZ ANNE COVI NGTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Marg o Milli e R o m er o and appellee Alejandr o Alberto Arg uello are the pare nt s o f H.R.A., their daughte r who was five y ear s old at t he ti me of the hearing

. In J uly 2011, in an order entered in a sui t aff ec t i n g t h e p arent-child relationship (SAPCR ), R omero was named the conser

vator with the rig ht to d et ermine H.R.A.’s primary residenc e, limit ed to Hay s County and contig uous counties. I n 2014, Romero filed a motion to modify , asking that the g eog raphic 1 restric tion be remove d beca use her husband, an active- duty member of the United States Air For ce, had been stationed in North Dakota. Arg uello objected. Following a hear ing, the trial court signe d

an order denying Romero’s reque st. Romero then filed this appea l. We aff irm the trial court’s order

.

A trial court in Hay s County issued the 2011 order

. After H.R.A., Romero, and Arg uello 1 all moved to Travis County , the SAPCRwas tra nsfer red to Tr avis County

.Stand ard of Review A trial court may modify an order g overning the conser vatorshi p of a child if the chang e would be in the child’s best interest and if the circ umstances of the pare nts or the child have materia lly and substantially chang ed since the order was rende red. Tex. Fam. Code § 156.101(a) (1). We will not di s t u rb a trial court’s decision on a motion to modify unless the complaining party shows a cl ea r ab use of discretion, meaning the trial court acte d in an arbitra ry and unrea sonable

manner or wit hout ref

ere nce to g uiding principles. Echols v. Olivarez , 85 S. W .3d 475, 477 (Tex. App.—Austin 2002, no pet.). We ask first whether the tri al co urt had sufficie nt information on which to exercise its discretion and second whether it err ed in applying its discretion. Id

. at 477-78. A “traditional sufficie ncy revie w comes into play with reg ard to the first question,” followed by a deter mination of “whe ther, based o n the elicited evidenc e, the trial court made a rea sonable decision.” Id. at 478. The trial court is best able “to observe the demea nor and persona lities of the wi t nesses and [t o] ‘fe el’ the forc es, power s, and influence s that cannot be discerne d by mere ly

rea ding the rec ord.” Id. at 477. The fac t that we might decide the i s s u e d i ff erently than the trial

co urt does not establish an abuse of discretion. Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex

. App.—Austin 2006, pet. denied)

. “An abuse of discretion does not occur as long as some evidenc e of a substantive a

nd probative c hara cter

exis ts to support the trial court’s de cision.” Id. Texas’ public policy is to ensure that a child has fre quent and continuing contac t with her pa rents, if he r par ents have shown they can a ct in the child’s best intere st; to provide the child with a safe , stable, and nonviolent environment; and to encour ag e pare nts to share in the raising of their child afte r separ ation. Tex. Fam. Code § 153.001(a)

. A child’s best interest is the overa rching

2conce rn in ma tters conce rning conser

vatorship, possession, and acc ess to the child. Id

. § 153.002. I n Lenz v. Lenz , t h e supreme court considere d case s from other jurisdictions rela ted to reloc ation and conser

vatorship and stated that the following fac tors “r eflect the public policy conce rns implicit in Texas’ o wn s tatutory best-intere st standard of modification”: the pare nts’ g ood-fa ith

rea sons for and ag ainst the proposed move; a compar ison of economic, educational, health, and leisure opportunities for the custodial pare nt and the child; whether the child’s specia l needs or talents can be acc ommodated; the eff ect on the child’s extended family rela tionships; the eff ect the

move would have on the noncustodial pare nt’s visitation and communication and his ability to maintain a full and continuous rela tionship with the child; whether the noncustodial pare nt ha s the ability to reloc ate; and whether a visitation schedule could be arr ang ed that would allow the noncustodial pare nt to continue a meaning ful relationship with the child. 79 S.W .3d 10, 15-16 (Tex. 2002); see In re M.M.M

. , 307 S.W .3d 846, 850 (Tex. App.—For t Worth 2010, no pet.); D e in h a r t v . M

c G r a th

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- 0 9

- 0 0 2 8 3

- CV , 2 0 1 0 WL 4 5 9 5 7 0 8 , a t * 6 ( T e x. A

p p . — Au s ti n Nov. 10, 2010, pet. denied) (mem. op.). Howeve r, we must reme mber that “no brig ht-line test can b e formulated” and that suits involving the custody of children “ar e intensely fac t driven” and require the consider ation and bala ncing of numerous f

actor s. Lenz , 79 S.W .3d at 18-19.

F actual Summ ary At the time of the hear ing, H.R.A. was five y ear s old. Romero testified that she and J eff rey Romero started dating in Aug ust 2011, shortly afte r the orig inal conser vatorship order was signe d, and marrie d in November 2012. They have a daug hter toge ther who was born in J uly 2012, and Romero said H.R.A. and he r y oung er sister a re ve ry attache d to e ach other. J eff rey signe d his 3Air For ce enlistment pa pers in June 2012 and beg an training in A pril 2013. He had been assig ned to a base in N orth Dakota, and Romero believed that the assig nment would last “more than two to three y ear s.” Romero testified that North Dakota was more aff ordable , that ever

y thing was within walking distance, and that medical costs would be chea per. I f she was forc ed to stay in Austin, the family would have to maintain two households and she would have to put the children into day car e and find a full-time job instead of being a stay -at-home pare nt. She also said that to visit J eff rey , the family would have to pay over $1,000 in plane tickets and that he would have limit ed time in which he would be allowed to leave the base. She was afr aid th at the costs would be so high that the family would not ge t to be toge ther ve ry often. Romero said that if she and the g irls w ere allowed to reloc ate to North Dakota, she was o p en t o gi v ing Arg uello longe r summer visits, to letting Arg uello come visi t H.R.A., and to allowing him to video-cha t with her eve ry night. She thought Arg uello should have to pay for his own trave l costs if he wanted to come to North Dakota but was willing to split H.R.A.’s travel c osts to and from Austin and to trave l with H.R.A. on those trips.

Romero testified that her pare nts, J eff rey ’s pare nts, Arg uello’s pare nts, and all of Ar gu ell o’s extended family wer e in the centr al Texas are a. Romero said that Arg uello exercised

v isitation and that H.R.A. seems to enjoy Arg uello’s company , “but it also seems to me li k e t h ey have more of a friendship than a fathe r-da ug hter rel at ionship when she’s with him. He doesn’t g ive her discipline or rules or restric tions.” She explained that Arg uello let H.R.A. stay up late and watch prog rams that wer e inappropria te for her ag e and that H.R.A. would come home from visits with Arg uello with a bad attitude. Romero testified that she was the pare nt who attended pare ntteac her confe renc es an d t o ok H.R.A. to appointments and extracurr icular activities and said that

4since she had filed her motion to modify , Arg uello had become more involved, such as as k i n g

about pare nt confe renc es and starting to attend part of H.R.A.’s ear ly evening dance classes. Romero also stated that Ar g uello was disre spectful to her and Jeffre y

and wa s hard to co- pare nt with. She believed that her bond with H.R.A. was the most important bond in her life and did not think it would be harmful for H.R.A. to not see her extended family as often. She ag ree d that H.R.A.’s bond with Arg

uello was important and said “that’s why I ’m willing to g ive him extra time, and I ’m willing to acc ommodate his needs when it comes to communicating with her.” She ag ree d that H.R.A. would g et to spend the most time with Arg uello if she stay ed in Austin but said, “I also have a nother da ug hter.” J eff rey testified that he enlisted to provide for his family and g ive them a better life. He said that if the g eog raphic restric tion was lifted, “I can fo re s ee my self—ser ving our country for a car eer . I t’s only benef itting my family and it’s only opened doors for us,” but if the restric tion

was n o t lifted, he would have to rec onsider. He explained that if he was unable to live in the North Dakota dormitories, which are usually rese rv ed fo r unmarrie d men without depende nts, he and Romero would have to use his military housing a llowance to maintain two households. Arg uello testified t hat h e d i d n o t want to take H.R.A. awa y from R omero but only wanted to do what was in her best interest. He believed sta y ing in the Austin area

was in her

best interest “[b] eca

use this is what she’s used to. She has sever al cousins she hang s out with. She has

more family that she constantly sees. She has a full rela tionship with them. I t allows me to be able t o p ro tect her. And if something happens to her, I ’m available minutes awa y . I live, l i k e, 1 0 , 1 5 minutes awa

y from wher e she lives now. And if something happens, something g oes on, I have the

5fre edom to stop whateve r I ’m doing to just g o to her.” He testified that he was involved in H.R.A.’s

life and had a close bond to her, and he said, “I want my daug hter to know if she has a bad day , she

can just call me, and she knows I ’ll pick her up.” He explained that he attended as many of H.R.A.’s activities as he could, but that he worked fr om 8:30 a.m. to 5:30 p.m., which meant he could not alway s attend H. R

. A.’s activities. Arg uello testified that Romero was disrespec tful to him and started arguments with him and th at she fre quently blocked his attempts to talk to H.R.A. on the phone. Arg uello ag ree d that he let H.R.A. stay up late on his wee kends with her, saying he thought it wa s fun for her, and that he sometimes play ed fig hts on the television while H.R.A. was prese nt, explaining that she usually watche d a child’s movie on he r tablet while the fig hts were on. Arg uello believed moving to North Dakota woul d b e hard on H.R.A. beca use it would uproot her from her long- time home and take her awa y from her friends and family

. He also believed that it would be hard for her to not see him as often and that it “would impact her extremely , just beca use the person that she’s been seeing constantly for five y ear s, now she’ll see—she ’ll hear

m y v o i ce or m ay

be during Fac eTime. You know, it’s not the s ame. I t’s not the s ame from being able to, you know, sit down with me , y ou know, just me being able to hold her, y ou know, just tell her that I love her. I t’s not the same from doing it throug h the scre en.” Arg uello testified that a flig ht betwee n Austin and North Dakota takes between five to six hours and costs about $500 (he admitted that the $500 price was not a round-trip price and that round-trip would be less expensive) and that he would also have to rent a car , g et a hotel, and eat all of his meals out. He did not believe he could aff

ord to visit H.R.A. i n No rth Dakota even once a month, much less ever y other

wee kend. He believed he would only see he r “e very

three months or just during the summer.”

6Arg uel l o s ai d t h at i f H.R.A. wer e to stay in Austin while R omero and her y oung er

daug hter moved to North Dakota with J eff rey , H.R.A. would stay with him at his paren t s’ house, wher e he lived. He testified that his mother would take care of her when h e was at work and that he would waive any child support obligation from Romero so that she could use that money to visit with H.R.A. He a sked the trial c ourt, “Just please allow my daug hter to stay

here .” Rosa Arg uello, Arg uello’s mother, testified that Arg uello lived with her and her husband and that H.R.A. stay ed with them during overnig ht visitations. She said H.R.A. fre quently

saw and was close to the extended Arg uello family , and she did not think she or the extended family would be able to visit H.R.A. in North Dakota. Rosa also testified that she had worke d in a childcar e cente r in the past and was curr ently a nanny for the attorney for whom Arg uello works as a leg al assistant. I f Romero stay ed in Au s t i n with H.R.A., Rosa said she would provide afte r-sc hool childcar e for H.R.A. for no cost. Arg uello’s aunt an d s i s ter both testified that they had g ood rela tionships with Arg

uello and H.R.A., that H.R.A. was close to her cousins and other family , and that Arg uello was a

g ood fathe r and w as ver

y devoted to H.R.A. At the conclusion of the hear ing, the trial court said, “I don’t believe that the burden to lift that restriction has been met. So I ’m g oing to de ny the re quest to do that. There ’s ce rtainly

no need to rule on any chang e of conse rv at orship, but the domicile restric tion for [H.R.A.] will

rema in in place .” The court agr ee d t o ch an g e the restric tion from Hay s to Travis County and contig uou s c o u

n tie s. The court made the following finding s of fac t: Romero marrie d J eff rey Romero in 2012; J eff

rey enlisted in the Air For ce in 2013; Romero was awa re of the g eog raphic restric tion when she marrie d J eff

rey and when he enlisted; Arg uello exercised regular and consistent visitation

7with H.R.A.; Arg uello, Romero, and J eff rey all have extended family in the centr al Texas are a and those family members had close relationships with H.R.A.; J eff rey was assigne d to No rt h Dakota in ear ly 2014; and Arg uello’s visitation with H.R.A. would be substantially reduc ed if H.R.A. was reloc ated. The court conclude d that Rome ro ’s m arriag e, J eff rey ’s enlis tment, and his assig nment to North Dakota constituted a materia l and substantial chang e in circ umstances but that Romero had not proven that the modification and resulting reduc tion in visitation with Arg uello was in H.R.A.’s best interest. See Tex. Fam. Code § 156.101.

Discussion Romero complains that the trial court abused its d i s cr et ion in denying her motion to modify

. She further asser ts that the evidenc e does not support the court’s finding s that Arg uello consistently attended H.R.A.’s extracurr icular and school activities, that Arg uello’s possession time with H.R.A. would be subst antially reduc ed if the child moved t o North Dak o t a, o r t h at H.R.A.’s rela tionship wit h Arg uello and his family would be neg atively

aff ecte d if she we re to move. No one disputes that Romero has compelling and g ood-fa ith rea sons to want to move

or that Arg uello has simil ar g ood-fa ith rea sons to want H.R.A. to rema in here

. The rec ord indicates that H.R.A.’s hea lth, e ducation, and le isure opportunities would be a pproxi mately

the same unde r either scena

rio and that her needs and talents could be met in both locations. There was testimony 2 that H.R.A. is quite close to her e x tended f amily on both pare nts’ sides and that if she move d, she

As opposed to the situation in In re D.M.D. , cited by Romero, there was no evidenc e that 2 H.R.A. would be better serve d by resour ces in North Dakota. See No. 05-07-01045- CV, 2009 WL 280465, at *6 (Tex. App.—Dallas Fe b. 6, 2009, no pet.) (mem. op.). Fur ther, the trip from Austin to North Dakota

is vastly differ ent from a

trip betwee n Austin and Dallas. See id. 8would not see those r elatives except on visitations in which she ca me to Austin. Romero testified that if she moved, she could return to school and could continue b ei n g h er children’ s full-time

car etake r and that it would impose a financ ial hardship on the family if she had to stay in Austin, that she would have to find a job outside of the home, and that she would have to pay for afte r-sc hool and

summer car e for the children. Howeve r, Arg uello’s mother testified that she would car e for H.R.A. fre e of char g e if H.R.A. rema ined i n t h e Austin are a. Arg uello said that he was not considering moving to North Dakota and that he was employ ed here full time, in a job he had held for more than

a y ear . He believed that he could not aff ord monthly visits to North Dakota and thus that he would probably only see H .R.A. ever y three months or during summers. Althoug h Romero testified that she would allow Ar g uello to ha ve daily elec tronic communica tion with H.R.A., Arg uello testified that R o m er o fr eq u ently interfe red with his attempts to speak to H.R.A. on the phone and that he fea red that would happen even more fre quently if H.R.A. moved. H.R.A. has alway s lived in centr al Texas, and her

extended family

on both sides, as well as Jeffre y ’s family , is here. We rec og nize that Romero and her new family are put in a d i ff i cu l t position, both emotionally and financ ially , by the trial court’s ref usal to lift the g eog raphic restric tion. Howeve r, the court had to make a choice betwee n imposing a financ ial and emotional hardship on Romero and J eff rey during J eff

rey ’s assig nment in North Dakota and taxi ng H.R.A.’s close rela tionship with her fathe r and her extended family

. See In re M.C.M. , No. 11-13-00375- CV, 2014 WL 3698283, at *6-7 (Tex. App.—Eastland J uly 17, 2014, no pet.) (mem. op.) (“the custodial pare nt’s improved financ ial situation and the eff

ect on the noncustodial paren t ’s ri gh t to have regular and meaning ful contac t

are only two of sever al fac tors courts balanc e in the fa ct -d riven analy sis to deter mine whether a

9g eog raphic restric tion is in the best interest of the child ”). There was substantive and probative

evidenc e on which the cour t could decide that Romero had not shown that allowing the move to North Dakota would be in H .R.A.’s best interest. See Lenz , 79 S.W .3d at 15-16. We cannot hold 3

on this rec ord that the trial court abused its discretion in ref using to lift the g eog raphic restric tion on H.R.A.’s place of residenc e. See Bates v. Tesar , 81 S.W .3d 411, 434-35 (Tex. App.—El Paso 2002,

no pet.) (“While perha

ps we would not have rea ched the same decision, the finding s are supported by leg ally and fa ctually

sufficie nt evidence .”). We ove rrule Romer o’s first issue. As for Romero’s complaints about the sufficie ncy of the evidenc e supporting the trial court’s findings that Arg uello “consistently attended ext rac urricula r activities and activities at t he

c h il d ’ s s c h o o l, ” th a

t a ll o w in g H

. R. A

. to mo v e to N o r th D a k o ta w o u ld s u

b s ta n ti a ll y r e d u c e A r g u e ll o ’ s possession time with her, and that the child’s rela tionship with Arg uello and his extended family

Most of the case s Romero cites and we have survey ed involve an appellate court affirming 3 a trial court’s modification decision, observing no abuse of discretion. See, e.g. , In re C.M. , No. 04- 12-00395-CV, 2014 WL 2002843, at *4 (Tex. App.—San Antoni o May 14, 2014, no pet.) (mem. op.) (af firming trial court’s decision to lift g eog raphic restric tion); In re B.A.B. , No. 13-11-00457- CV, 2012 WL 112822, at *8-9 (Tex. App.—Corpus Christi J an. 12, 2012, no p et
. ) (m em . o p .) (af firming trial court’s lifting of g eog raphic restric tion); Hoffman v. Hoffman , No. 03-03-00062- CV, 2003 WL 22669032, at *6-7 (Tex. App.—Austin Nov. 13, 2003, no pet.) (mem. op.) (af firming trial court’s re fu s al t o chang e primary conser vatorship from mother, who was moving out of state, to fathe r); Echols v. Olivarez , 85 S.W .3d 475, 482 (Tex. App.—Austin 2002, no pet.) (af firming trial court’s decision to lift restric tion and allow mother to reloc ate with child); Bates v. Tesar , 81 S.W .3d 411, 433-35 (Tex

. App.—E l P as o 2 002, no pet.) (affir ming trial court’s imposi tion of geog raphic restric tion); see also Panalez v. Telano , No. 03-14-00675- CV, 2015 WL 7 4 2 2972, at *4 (Tex. App.—Austin Nov. 19, 2015, no pet.) (mem. op.) (af fi rm i n g j ury ’s finding that g eog raphic restric tion should be lifted); Y asin v. Y asin , No. 03-10-00774- CV, 2011 WL 5009895, at *4-5 (Tex. App.—Austin Oct. 21, 2011, no pet.) (mem. op.) (af firming trial court’s decision to omit g eog raphic restric tion from initial conser vatorship order ); Cisneros v. Dingbaum , 224 S.W .3d 24 5 , 2 5 9

- 6 0 ( T ex. App.—El Paso 2005, no pet.) (same). I n contra st, Romero is asking us to reve rse the trial cour t’s decision on her

motion to m odify , which we cannot do a bsent an a buse of discr etion. 10would be neg atively impacted, we have revie wed the rec ord and are satisfied that leg ally and

fac tually sufficie nt evidenc e supports those finding s. I t is not for us to second -guess the court’s deter minations of cre dibilit y and the we i gh t to be g iven the evidenc e, and we decline Romero’s invitation to do so. See In re P.A.C. , No. 14-14-00799- CV, 2016 WL 3213299, at *2 (Tex. App.—Houston [14t h Dist.] J une 9, 2016, no pet. h.) (setting out standards applied in co nducting sufficie ncy

revie w). We over

rule Romero’ s second a

nd third issues.

Conclusion Having overr

uled R o m er o ’s challeng es to the trial court’s decision on her motion to modify , we a ffirm the tria l court’s orde r.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Jul y

21, 2016

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