### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00475
- CV

Barret Arnold Espe , Appellant

v. Lindy Catherine Castellaw , Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 17
- 001605 , THE HONORABLE SUZANNE COVINGTON , JUDGE P RESIDING

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

In this appeal , arising from a suit affecting the parent

- child relationship (SAPCR) , Barre t A rno ld Espe ( Father) chall enges those portions of the trial court ’ s final decree of div o r ce that grant Lindy C ath e r ine Castellaw (M o t her ) the right to make certain decision s on behalf of the couple ’ s child, L.O.E. , including the exclusive right to desi gnate the child ’ s primary residence

. Father also challenges t he trial court ’ s award of attorney ’ s fees and exp en s es i n favor of Mother

. We w ill modify the trial court ’ s dec ree to the exte nt it award s attorney ’ s fees and expenses “ as additional child support, ” and affi rm the decree as modified.

BA C KGROUND
Mother and Father were married in May 201 4 , and L .O.E. was bo r n three months
later

. Af ter L .O.E. ’ s birth, the fami ly lived in P flugerville, and Mother stayed home to care for
L.O.E. while Father w orked ou tside the home.2 In July 201 6, Mother and Father separated , and Mother moved t o San An ton io

to l ive with her fam i ly

. A f ter a tte mpt ing to reconcile with Father , Mother filed for divorce in
March 2017

. The next month , in April 2017, t he trial court sig ned temporar y orders that , in part , gave Father the exclusive right to designa t e L .O

. E

. ’ s primar y residence w ithin Tr avis County and required both Mother and Father to submit to psych ological eval uations.

After the couple ag reed to a division of property , a final he aring on the issue o f custody was held in October 2018

. At the he a ring , the trial court heard ev idence e stablishing
that on the evening of October 31, 2017 , Mother was struck by a car as she was crossing a stree t

. As a result of t he accident, Mother sustained a seri ous brain injury t hat required more than
four months o f in

- p a t ient rehabil itation

. M uch of t h e testimony at the final hearing concerned
Mother ’ s mental heal th , both before and after her s eparation from Father, and the impact of h er brain injury on her ability to ca re for L.O.E. T he w itne s ses include d M other ; Fath e r ; Stephen A. Thorne, Ph .D., the psychologist who performed the court

- ord ered psychological evaluations ; a nd Anita Robertson, Mother ’ s therapist.

At the concl usion of the final hearing , the trial court signed a final d ecree of
div o rce , div iding th e prop e rty in accord ance with t he c oupl e ’ s agreement and appoint ing
M othe r and Father as join t m anaging conservators . The decree named Mother as t he managing
conservator with th e ex clusive right to design ate L.O

. E. ’ s pr im ary res idence and also gave Mother the ri ght , “ after meaningful c onsultat i on ” with Father, to mak e certain medical , ps ychological, and education al decisions for L.O. E

. The trial court awarded Father access to
L .O.E. pursuant to a st andard possession order. The trial cour t later issued fin din gs of f act an d
conclusion s of l aw i n which i t determined , as to ea ch conservatorship right awarded , that the
award was in L .O.E. ’ s best inte rest. This appeal fo llowed.3 STA N DARD OF REVI EW
W e re view a trial c ourt ’ s decision on issues of conservatorsh ip and p oss ession of
a child f o r an a b us e of discretion. In re J.A .J. , 243 S.W.3d 611, 616 (Tex. 2007); Chacon v.
G ribble , No. 0 3

- 18

- 00737

- CV, 2019 Te x. App. LEXIS 10286, at * 2 (T ex. App.

— Austin
No v. 27, 2019, no pet.) (mem. op.). A trial court abu ses it s discre t io n if it acts withou t refere nc e to any guiding rules and pri nciples such that the rulin g is arbitrary or unreasonable. Cire v. Cummings , 134 S.W.3d 835, 838

- 39 (Tex. 200 4) ; Coburn v. Morela nd , 433 S .W.3d 809, 823 (T ex. App.

— Aus t in 2014, no pet.)

.

In fa mily la w cases, the abuse

- o f

- di scretion stand ard overlaps with traditional sufficiency standards of r ev iew. Zeifman v. Michels , 212 S.W.3d 582, 588 (Tex. App.

— Austin
20 06, pet. denied ) ; Clemon s v. Lynn , No. 03

- 16

- 00360

- CV, 2017 Tex. App. LEXI S 2371 , at * 3

- 4 ( Tex. Ap p.

— Austin Ma r . 22, 2 017, no pet.) (m em . op.) . Consequently , challenges to lega l and
factual s uf

ficiency do not constitute independen t ground s for asserting error b ut are relevant
fac tors in determining whethe r the trial court abused its discreti on
. Co bur n , 433 S .W.3 d at 823 ;
In re Marri age of C.A.S. & D.P.S. , 405 S.W.3d 373, 38 3 (Tex. App

. — D allas 2013, no pe t.). In applying the standard , we en gage in a two

- pronged inquiry : (1) whether the tr ial court had
sufficient i nform ation upon which to exer cise its d i scretio n, and (2) w he ther t he t rial court erre d
in its appl ication of that discretion. Zei fman , 212 S. W. 3d at 588.
To determine if the evidence i s legally sufficient to support the trial court ’ s

ex ercise of discretion , we c onsider the evide nce in t he light m ost favora bl e to the tri al court ’ s findings if a reasonable factfinder could and disregard evidence to the contr ary unless a

reas onable factfinder could not. City of Keller v. Wilson , 168 S .W.3d 802, 827 (Tex. 20 05 ). When reviewing the evi dence fo r factu al sufficien cy , we c onsi der and w eigh all the e vidence4

presented and will set aside the trial court ’ s findings only if they are so contrary to the

over whelming weight of the evi dence such that t hey are clearly wron g and unjust. I d. at 82 6

.

“ [ A ] n ab use of d i scretion d o e s not o ccur as long as some evidence of a subst antive and pr obative
chara cter exists to support t he trial court ’ s decision. ” Echols v . Olivare z , 85 S.W.3d 475 , 477 (Tex. App.

— Austin 2002, no p et.).

ANALYSIS
Cons ervatorship and Poss es sion

On appeal, Fa th er r aises f iv e issues c hallenging those portions of the divorce
decree giving Mother certain conserva torship ri ghts to L .O.E. , including the r ight to designate
the child ’ s primary reside nce. W hen the trial court appo ints joint man ag ing cons ervators, i t

mu st d e si gnat e the conservator w ho has the exclusive rig ht to det ermine the primary resid ence

o f the child. Tex

. Fam. Code § 153.134. In determining whi ch joint conservator should have
this exclusive right, the best interes t of the ch ild is t he court ’ s p r imary c on s ide ration, as it is
in determ ining all “ issues of conse rvatorship and posses s io n of and access to the child

. ”
Id. § 153.002.
Conserva torship de terminations are inte nsely fact dr iven. L enz v. Lenz , 79 S.W. 3 d
1 0 , 1 9 (Te x. 2002). As a resu l t, t r ia l courts ge nerally have wide latitude in determining what is
in a child ’ s best interest , Gillespie v. Gillespie , 644 S .W.2d 44 9, 451 (Tex. 1982) , and may us e a

non
- exhausti v e list of factors to aid in th at d etermin atio n, H olley v. Adam s , 544 S .W.2d 367 , 37 1

- 72 (Tex. 1976). The factors include : (1) the child ’ s desires ; (2) the em otional and physical
needs of the child now a nd in the future; (3) the emotio nal and physical danger to the child now
and in th e futur e; (4) th e pa renta l abilities of t he in div i du al s seek ing c ustody; (5) the programs5

available to assist th ese individuals to promo te the best interest of the child; ( 6) t he pla ns fo r the
child by the se indi viduals or by the agenc y seeking cus tody; (7) t he stab ility of t he ho me or proposed plac em ent; ( 8) the acts o r omission s of the parent which may indi cate that t he existing
parent

- child relationship i s not a proper one; and ( 9) any excuse for the act s or om issions of the

pa rent. Se e id. at 372.

In three iss ue s on a ppeal , Fat her ass erts that t he t r i a l court abus ed its discretion in naming Mother as the joi nt man aging co n servator with th e exclusive ri ght to d esignate L.O.E. ’ s primary residence ; the rig ht to consent to medical, dental , and s urgical treatment ; th e r ight t o

c onsent to ps ychiatric and p s y ch ologic al tr eatment ; and the rig ht to make decisions co ncerning
L.O.E. ’ s ed u cation. In hi s fourth and fifth i ssue s on appeal, Father challenges the trial court ’ s decision to award him a c cess to the child p u r suant to a st andar d possession orde r. I n all f iv e issues , F ather conten ds th at the evidence is insufficient to su pport the trial court ’ s determination
that the g ranting of the se rights in favor of Mother is in L.O.E. ’ s best interest.

At the fin al hearing, th e t rial c ourt heard testimony esta blishi ng t hat t he co u ple
met when Moth er was a sophomore in high school and Father was a s ophomore in college and
that Moth er was nin et een years old when L.O.E. was born. In hi s testimo ny, Father t old th e trial
court that he b elie ved he worked well with M other as a co
- parent but that he wa s better suited to
be appoint ed the managing con servator with the right to make decisions for L.O.E

. In support of his reques t , Father te stified about instances o f behav ior by Mothe r that, in his view, de monstrate
she is unfit t o care for L. O.E. and t o make decisions on L.O.E. ’ s behalf.

According to Father , during the marriage, Mother would s end him text me ssage s while he was at work in which she threa tened to ki ll hers elf and L.O. E

. if he d id not call her

or come h ome immedi at el y
. On one occasion , Mother sent a text telling Father he should come6

home becau se she had left the house and L.O.E. was home alo ne
. I n addition, Father testified
that Moth e r had i nt e ntionally cut he rself with scissors “ 50 to 100 times ” and that she h ad

r eported to him that she onc e drank bleach an d tha t , on another occasion, she swall owed an

ex cessive a mount of over
- the

- counter ibupro f en . Father a dmitt ed , however, that h e did n ot
wit ness Mother d rin king b l each or taking an ex c essive amount of i buprof en ; that, as fa r as he knew, sh e never went to the hospital for treatment as a result of her harming herself ; and that
Mo ther ha s n ot m ade any more threats to ha rm herself o r L.O.E. since the y separate d.

The trial court also heard evidence establis hing t ha t Father was arrested for DW I in April 2017, just two days before the hearing on temporary orders. As a result of the ar rest , Father was required to have an alcoho l

- mon itor in g devi ce in h is vehicle and to un dergo an
alc ohol evaluation . When quest ioned by M other ’ s att orney abou t the arrest , Father a dmitted th at
he did not inform the tr i al court about the arrest at the temporary

- orders hearing ; that he never
disc losed his arrest to M other or to Mother ’ s counse l , despite h aving received a request for produ ct io n for crim i nal record s ; and that he had n ever mention ed his DWI arrest or prod uce d the
result s of his court

- ordered al c ohol evaluation to Dr. Thorne

.

In her testi mony, Moth er de scrib ed Father as con trolli ng during the marr iage and
told the tria l cour t th at they wou ld argue weekly. Mother told th e trial c ourt that during their arguments she often tried to l eave the house . She testified about on e incident where she t ried to
leave the house during an argume nt , and Father followed her t o the c ar , pulled h er out of the car , and then dr agged her b ack to the house by her arm. A neigh bor who witnessed the event called
Child Protective Service s , although no further action was taken

. In addi tion, Mother tes tified
that since the ir separation , Father had enrol le d L.O.E. in a daycare in Pfluger ville , wit hout7

informing her , and that he is often unresponsi ve to h er texts with questi ons about the child ’ s school, extracurricular events, an d d oc tor ’ s visits.

Mot her al so testifie d about her past be ha vior and mental he al th issues , as described by Father in h i s testimony

. Mother testi fied that in the past, she had used illegal drugs , such as marijuana and cocaine, a nd had abused alc ohol bu t tha t she ha s not use d an y ille gal drugs since April 2017 and that sinc e her ac ci de nt , she no longer drink s t o excess
. Mo ther also

a dmitted to sending threat ening texts to Father but explained to the court that she was never serious about h urting herself o r h er ch ild and t hat she had n ever act ually left L.O.E. at h ome alon e
. Mot her t es ti fied that when she sent those thre ats to Father , she was isolated , without
friend s , and tha t she “ thought that was the best way [she ] could show what was going on insi de. ”
Mo ther also told the cou rt th at s he had never actually trie d to harm herse lf b y dr inking blea ch or
tak ing over
- the

- co unter medication and that she only told Father she had done those thing s to get
attention. F i nally, Mothe r admitted to “ cutting ” hersel f in the p ast but also stated th at she ha s not engaged i n this “ cutting ” be hav io r s in ce be fore t he separation in July 2016

.

Mother testified that after the death of a clos e friend, she began seeing a therapist , Anita Rober t son, and that she now realize s tha t she had been suff ering fro m depression f

or years
. At the time of the fina l h ea ri ng , Mother had been seeing Ms . Rober tson for therap y mo st weeks
for a period of three y ears and was taking prescribed medication to treat her d epression and

an xiety

. M s . Ro bertso n testified a t the hea ring and told the trial court that M othe r is an act iv e patient who has followed her recommen dation s and suggested coping strategies

. The ther api st explained that although sh e in itially diagnosed Mother with borderline personali ty dis order

— a dis or der which she de scribed as being a “ fear of a band onment ” and “ wa nting atten tion ”

— Mother currently d oes not meet the dia gnostic criteria for borderl ine perso nality diso rder.8

According to Ms. Rober tson , M o ther has ackn ow ledged her past an d now “ presents as somebody
who has more c apacity for controllin g im pu lsiven ess
. ” I n addition, M s. Robe rts on explained,
Mother has made “ marked improvement ” and now h as “ a positive outlook on life ” and on her family relations hips.

As to the acc ident in Octobe r 2017, Mothe r a d mitte d that she had been dr inking
with fri end s that n ight i n downtown Sa n Marco s and that the last thing she remember s is wal king up and do wn the sidewalk look ing for an Uber . Mother was initiall y in an intensive care unit and
then later moved to a re habilitat i on center for p atients with b rain injur ies , whe re s h e r eceived

spe ech therap y , phys ical therapy, and o ccupationa l th erapy . Mother testified that , as a result of
the accident , she still ha s issues with her short

- term memory and atten tion , that sh e is curr ently
unable to drive , and that she will soon be gi n tr ea tment to he lp with her fine motor s kills

. Mother
descri bed h ers elf after the accident as “ happie r being alone ” and “ more pres ent than [she] was before ” and told the court , “ [I]t really makes you kind of appreciate m ore what ’ s in your life. ”
At th e tim e of the final hearing, M other w as r esiding wi th her mother in San Anto nio , where
she and L .O.E. e ach h a ve their own room , and working in he r mother ’ s business , making $2,000

pe r mo nt h.
The tria l court a lso heard f r om Dr. Thorne , who testifi ed about the re su lt s of his

cou rt

- ordered ps ychological evaluation s of Mother and Father , an d his report s w er e admi tted
into evidence. D r. Thorne explained that his evaluation of Mother rev ea led that sh e ha d been
suff er ing f rom d epr ession and anxiety for year s an d tha t , b efore h er a cci dent, she had coped with her depression an d anxiety in unhealthy ways , includi ng by us ing illegal drug s a nd drinking in

excess
. S in ce the accident, howev er, M othe r has been work ing with her therapist a n d is n ow coping in a m anner Dr . Tho rn e deemed “ app ropriate gi ven what she gone through in the last9

year or so. ” Dr. Th orne told the trial court that Mother ha s acknowledged her past mis conduct, including her ten dency to make threa ts and to commit se lf

- ha rm , and he describe d th is
ackno wledg em en t as an enc ouraging fi rst st ep to ov ercoming her issues

. Dr. Th o rne explained ,

“ I don ’ t think we can pred ict an ything with 100 per cent certainty, but I ’ m more worried about
her d oing attentio n
- seeking s tuff and s elf

- harm tha n I am about h er harmi ng he r da ughter , ” an d
that as long as “ she doesn ’ t re turn to the imp uls ivity or the substances, I think she c an meet a ch il d ’ s basic needs , ” meaning that she can “ take care of a child alone ” and “ mee t that chil d ’ s academic , soc ial , medica l, emotion al needs , [an d] p rovide a sa f e a nd hygi enic environment for
the child. ” In addition , Dr. Thorne repor ted that , based on his review o f Mo ther ’ s n eurological

p s ych ological evaluation , conducted while she was in rehabili tation , he be liev ed that Mother was
pr o gressin g in he r brain

- injur y recovery and that he ha d not seen any “ concr ete data ” t o suggest
that she had “ traum a that would permanently impact parenti ng skills

. ”

As t o F a t h e r ’ s ps ycholo gi ca l ev aluation , D r. Thorne testified that his testing
revealed t raits in Fath er c o ns istent w ith a n o b sessive

- compulsive personal ity disorder , meaning a need for st ructure and routin e that ca n sometimes be in flexible . Dr. Thorne al so e xplained that
Father also h ad a “ commu ni catio n style ” in w hich h e “ does not give much informa tion or

c onte xt ” or “ display much em otion ” and that based on the written co mmunications bet ween Mother and Fat her that he had seen , Mot her and F a the r were unab le t o engage in p roductive

comm unic ation. Dr. Th or ne rec ommen ded to Father that he under go couns eli ng t o help him
de velop a communication sty le that w ould “ help him with parentin g and co

- parenting and just relationship s in general. ” Despite Dr. Thor ne ’ s recommendation, Father adm itted t h at h e ha d not

g one to any counsel ing. A s to Fath er ’ s p reviousl y und is cl osed DWI arrest, Dr. Thorne testified10

that had he known about the arrest at the time of his evaluation , he would have had concerns
abo ut Fath er ’ s propensity for alcohol abu se.

In su m, the tr ial court h eard evidence from both parties abou t their abili ty t o communica te , make joint decisions, and to c are for L.O.E . and meet her social, medical, and
education al needs

. In evaluating whether the trial court abused its discretio n , w e are m indful th a t
the tria l court is best able “ to observe the demean o r and p er sonal itie s of the witnesses and [to]

‘ feel ’ the forces, powers , and influence s that cannot be discerned by merely reading the record. ”
Echols , 8 5 S.W.3d 477. Accordingly, we defer t o the tri al court ’ s credibility d eterminations and
do no t substi tute o ur j udgment for that of the court. Clemmons , 2017 T ex. App. LEXIS 2371,

at * 8 (citing Golden Eag le Archery, Inc. v. J ackson , 116 S.W.3d 757, 761 ( Te x. 2003) )

. I n other words, the fact that we m ight decide t he issue dif f erently does not es ta blish an abuse o f
discretion. Zei

fman , 212 S.W.3d at 587

. Having reviewed the evidence under the app ropr iate standards, we con clude that there is sufficient c ompeten t evidence to support the trial c ourt ’ s

co n clusion t hat it is in L.O.E. ’ s best interest t o give M other, a s join t manag in g conservator with Father, the r ight to d e termine the child ’ s primary residence a s well as the r i ght t o make decision s , in consultation w ith Father, about me dical treatm e nt, p s yc holog ical treatment, and education for
L.O.E. , as speci fied i n th e d ecre e.

Sim ilarly, we conclude that the evidence is suff icient t o support the conclusi on that Father shou ld ha ve access to L.O.E. under a standa rd possession orde r. Join t manag ing

conse rvatorship does not require the award of equal or nearl y equal p er iods of phy sical possession
of and access to the child to each of the joint conservators , Tex. Fam. Code § 15 3.135 , and t he Family Code provides a r ebuttable presumption that the st andard po ss ession order is in the11

child ’ s best interest, see id. § 153. 25 2

. After rev iewing the record, we canno t concl ude that the presumption was o vercome
.

T he t rial court had legally and factual ly sufficient evidence on which to ex ercise
its discreti on and di d not err in the application of that disc retion

. See Z eifman , 2 12 S.W.3d

at 587. Accordingly, the trial court did not abuse its dis cretion in its a wards of conservatorship
and possession , a nd we overrule Father ’ s first , second, third , fourth, an d fifth i ssues on appeal.

A ttorney ’ s Fees
In a si x th i ssue , Fath er co nt ends that t he trial court abused its discretion in awarding Moth e r $10,000 in att orney ’ s fees and exp enses , as “ additional child support. ”

Section 106 .002 of the Family Code, which applies generally to all SAPCR s,
p rovides the trial c ourt wi th genera l di scretion to render jud gment for reasonable attorney ’ s fees and exp enses to be paid directly to a party ’ s attor ney. See Te x. Fam. Code § 106.002(a);
Tucker v. Thomas , 419 S.W.3d 292, 296 ( Tex. 20 1 3). A judgment for attor ney ’ s fees und e r Secti on 106.00 2 ma y be enforc ed by any m eans a vailable for the enforce ment of a judgment for
debt. Tex. Fam. Co de § 106.002(b). The st atute does not , however, authorize the trial court to characterize attorney ’ s fees as addi tional ch ild support

— which a trial court may e nf orce using its
contempt powers under C hapter 157

— in non

- enforcement suits

. Tucker , 419 S.W. 3d at 298.

Her e, t he d ivorce decree states , in relevant part, that “ [t]he judgment for [$10,000] , for which let execution issue, is awarded against [Father], an d [Father] is ordered to

pay as additional child support , ten thousand dollars ($10,000) in at torney ’ s fees, e xpenses,

cost and interest to [Mother ’ s at torney] as additi onal child support within ninety (90 ) d ays. ” ( Em phasis added. ) O n appeal , Father doe s no t a rgue tha t the award of att orney ’ s fees is generall y12

improper or that the amount of fees award ed is unrea s onable

. I nstead, Father argues that be c ause it its undisputed t h at there were not any claims again st him fo r delinquent chi l d suppo rt in th is

c as e , the trial court “ erred by characterizing th e award of attorney ’ s fees, expenses, costs, a nd
interest as ad ditional child support. ” Conse quently, F ather requests that we render j udgment striking that portio n of the decre e character i zing th e award “ as ad di tional chil d support. ” In

response , Mot her agrees that the Texas Supre me Court ’s decision in Tucker v. Tho mas is

c ontrolling on this issue and conc ede s that trial court ’s characterization of the award “ as

a dditional child support ” i s in er ror.

We su st ai n Fat her ’ s sixth issue on a ppeal and will modify the decr ee to correct the

er ro r
. See Tex . R. App. P. 4 3.2 (b) (all owing appellate court to modify t rial court ’ s judgment and
affirm as modifi ed). W e modify t h o se portio ns on page 29 o f the f inal decre e of d ivorce rela ting
to attorney ’ s fe es to read as f ollow s:

THE COU RT FINDS that [MOTHER] has incurred re asonabl e attorney ’s fees , expenses, and costs , wh ich were necessary as support for [ MOTHER ] and the child subject o f th is sui t

.

. . . The judgment , fo r which let execution issu e, is aw arded against [FA THER] , and [FATHER] shall [be] ORDERED to pay as additional ch ild supp ort , ten thousand dollars ($10,00 0 ) in attorney ’s fees, expe nses, costs an d interest to [MOTHER] b y and t hrough her attorney . . . a s a dd itional child support within nin ety (90) days of the si gnature of this order. [Mother ’s attor ney] may enforce this jud gm ent for fees, expenses, and cos ts by an y means available for the en force ment of a j u dgment for de b t.

C O NCLUSION Having sustained F at her ’ s sixth issue on appeal, we modify the judgmen t, as
describe d above, and affirm the trial court ’ s final de cree of d ivorce as modified.13 ___________ _______________________________ Chari L. Kelly , Justice
Before Justices Go odwin, Kell y, a n d S mi th
Mo di fie d and, a s Modified, Affirmed
Filed: May 2 1 , 2021