### 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. 03-13-00802- CV

Byron David Pear son, App ellant

v. Heather P earson, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -F M- 11- 0030 60, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

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

This is an appea l from a divorce decr ee. By ron Davi d P ea rs o n (known as Snap Pearson) and Hea ther Hudso n P ear son wer e marrie d in 2000 and filed for divorce in 2011. Two children wer e born during the m ar ri age . The parties submitt ed three disputed issues to the trial court: the char acte rization and value of a business interest, rules g overning thei r children’ s air travel, and the enforce ability of t heir post-nupti al agr eeme nt. The tr i al court chara cter ized the business interest as co m m u nity proper ty and issued order s conce rning the children’ s private air tra vel. M r. P ear son appea ls those ruling s. The trial court also found that the ma rital proper

ty 1 ag ree ment was unenfor cea ble, but he does not c halleng e that decision. The parties did not reque st finding s of fac t or conclusions of law, and none wer e filed. To decide Mr. Pearson’ s complaints, we

Wit nesses g ave pretria l deposition testimony

. The case orig inally commence d befor e a 1 jury and testimony beg an, but a mistrial was decla red befor e the cause conclude d. The parties then ag ree d to a trial befor e the court. Wit nesses wer e examined and cross-e x amined with respe ct to their testimony at ea ch stag e.must do a thoroug h sear ch of the len gt h y rec ord to deter mine whether the evidenc e supports the trial court’ s rulings. We will aff irm. During marria g e, Mr. Pearson acquir ed an inte re s t in a business owned by Mrs. Pearson’ s family , which he claimed as his separ ate proper ty

. Mrs. Pearson asser

ted that it was community proper

ty

. They dispute who had the burden of proof on char acte rization and whether that burden was m et. The trial court found the business interest to be c ommunity proper ty , awa rded it to Mr. Pearson, and awa

rded Mrs. Pearson offse tting proper ty under a 52%-48% split in her favor

. Mr. Pearson contends that, beca use the business interest was transfe rre d to him from his mother-in-la

w and his wife, it was presumed to be a g ift to him. He further contends that, once he raised the presumption of g ift, the burden shifted to Mrs. Pearson to disp ro v e t h ei r intent to make him a g ift. I n his third issue, he arg ues that the trial court err ed by placing the burden on him to pr ove the donors intended to make him a g ift. I n his f ourth issue, he a

rg ues that the e vidence is leg ally and fac tually insufficient to prove by clea r-a nd-convinc ing evidenc e that the transfe r of the business interest to him was not a g ift.

BACK GR OUND

J oe McQue en, Mrs. Pe a

r s o n ’ s ma te r n a l g r a n d f ather , started a manufa cturing business in the 1950s called I E C C o rp o ra tion. I t desig ns and assembles slip ring s, an elec tromecha nical

connec ting device that allows transmission of p o we r an d elec trical signa ls from a stationary to a rotating structure . The business wa s incorpora ted and issued 100 sha

res of stock. Mr. McQue en died befor e the Pearsons marrie d, an d h is forty -seve n share s of stock wer e held by the J .B. McQue en Marital Trust. Mrs. Pearson’ s g randmother Be atrice McQue en

2owned five share s, Mrs. Pearson’ s mother Diana Hudson and her fathe r J ohn Paul Hudson eac h

owned twenty -one share s, and Mrs. Pearson and her brother Casey Hudson eac h owned three share s. All the family , including Mr s. Pearson, ha d worke d in the business over the y ear s.

As attorney Bill L eig hton testified, many small famil y - o wned businesses handle their business aff

airs and rec ord-ke eping informally , without following proper formalities in car ry ing out their business activities. I EC was no exception. Mrs. McQue en, for example, still drew a substantial salary , althoug h she no longe r worke d in the business. The Hudsons explained that she owned the company . The stock log was ha ndwritten and not a lway s up to date. Mr. Hudson was manag ing the company , but by late 2003 and 2004 it was strug g ling and in debt. I EC was unable to pay fe d er al p ay ro ll taxes, and the Hudsons had to g uara ntee a persona l line of cre dit to make pay roll and cove r expenses. Mr. Pearson was a computer pro g rammer with a backg round in desig ning custom prog rams. He was working for Casa Mecha nical Service s, a plumbing and air conditioning contra ct o r, ea rn ing $250,000 per y ear . He desig ned a computer prog ram that the company used and marke ted to other companies and would rec eive 50% of the proce eds from the sale of the prog ram so long as he worke d for Casa. Be fore the marria g e, he wrote an automation prog ram for I EC and updated and networked the company ’s computer sy stems, so h e h ad some familiarity with the business.

Mr. P ea rs o n testified that Mrs. Pearson was worrie d about her pare nts and beg an to encour ag e him to g o to work at I EC to help t hem. I n deciding whether to do so, Mr. P ear son’s testimony ref

lects that he was primarily conce rned with protec ting his own self-inter est. Even befor e discussing the possibili ty with the Hudsons, he persona lly rese arc hed Texas p ro p er t y laws and 3educated himself on t h e d ef i n i t i ons of separ ate proper ty and community proper ty

. He obtained a leg al understanding of the meaning and signific ance of separ ate proper ty , including the conce pt that proper ty acquir ed during marria g e by g ift is separ ate proper ty

. He wanted to ensure that any business interest he acquir ed would be his separ ate p ro p erty , not community proper ty

. He understood that g ener ally the i n co m e from separ ate proper ty is community proper

ty , and he rese arc hed how to chang e the income into his separ ate proper ty so that it wo u l d n o t be community proper ty with Mrs. Pearson. He discussed the issues with what he descr ibed as “lots of lawy er friends” and “lots of friends who had divorce d.” He did not rec all whether he rela ted any of this information to any one. Mrs. Pearson and her pare nts did not indicate an understanding of these conce p t s at the time.

Mr. Pearson testified that he told Mrs. Pearson that he would only g o to work at I EC if 50% of the stock was his sepa rate proper

ty and the income there from was his se para te proper ty

. He understood the meaning of separ ate proper ty and wanted to protec t himself from being “kicke d out” in case of family turmoil or divorce

. He d o es n o t know whether he explained his rese arc h finding s or the signific ance of separ ate and community proper ty t o M rs . P ear son or to the Hudsons. He does n o t k n o w whether he ever explained to the Hudsons that if they g ave stock to him, Mrs. Pearson would own no financ ial interest in I EC. He stated that he and Mrs. P ea rson discussed his terms and ag ree d in adva n ce that all would be his separ ate proper ty

. Mrs. Pearson wanted him to fe el sec ure a bout his place in the fa

mily business, but she denied this ag ree ment. Mr. Pearson testified that he met with Mr. and Mrs. Hudson in J une 2004 and ag ree d to g o to work at I E C o n the conditions that (1) the Hudsons g ive him fifty share s of stock as his separ ate proper

ty and (2) he would have full authority t o m ak e change s he thought nece ssary to turn the business ar ound. The Hudsons did not y et own fifty share s but a g ree d to tr ansfe r stock to 4him sometime in the future afte r Mrs. McQue en died and Mrs. Hudson inherited. The Hudsons and

Mr. Pearson wrote their ag ree ment on a leg al pad and signe d it. Mr. Pearson made a copy and put it in his file draw er at home. He testified that the ag ree ment stated that the Hudsons would g ift him fifty share s of stock.

The Hudsons testified that they signe d an ag ree ment with Mr. Pearson that he would have c ontrol of t he busi ness and that they would transfe r fifty

share s of stock to him if he came to work at I EC and was able to turn the business around. Mr. Hudson testified that they ag ree d to pay him with their stock to do this ser vice for them. There was no rea son they would g ive the stock to Mr. Pearson and cut out their daug hter from her g randf ather ’s business. Mrs. Hudson testified that there was never any discussion with Mr. Pearson about a gi ft , an d t hey never discussed with him that the share s would be his separ ate proper ty

. She testified that there was no discussion of g ift or separ ate proper

ty at the time of the agr ee m en t o r when she “wr ote his share s out” when they

wer e transfe rre d to him at the end of 2005. She testified that they never had any intention to make him a g ift; their intention was that the Hudsons would own half the business and the Pearsons would

own half. They had neve r see n it as a g ift—“Ne ver.” Mrs. Hudson insisted, “I t was neve r a g ift.” “We neve r saw it as a

g ift.” “W e still don’t see it as a g ift.” The H udsons considere d the transf er compensa tion for Mr. Pearson, without considering that compe n s at i o n would ordinarily come from the company rathe r than other share holders or partne rs. Their intention was to provide him an interest in their business and compensa te Mr. Pearson with pa rt of their stock if he could make the business profitable ag ain. I t was unclea r what would happen if he did not improve the business. Mr. P ea rs o n went to work for I EC in 2004 at a salary of $75,000. Mrs. Pearson testified t hat her pare nts wer e ex cited to g o into business with Mr. P ear son so he could help t hem 5“pull out of this.” T h e b u s i ness beca me profitable; at the end of 2005 the Hudsons rec eived an unprec edente d bonus.

Mrs. McQue en died Fe bruar y 24, 2005. Her share s and the trust share s passed to the heirs, subject to probate administration. Mrs. McQue en’s will left all the I EC stock to Mrs. Hudson, but she was to pay her sister a sum t o eq u al i z e t h eir inheritanc e. The Hudsons paid the sister in Marc h 2006. After Mr. Pearson was in control, I EC reta ined attorney Bill L eig hton, Mr. Pearson’ s friend and g olf acqua inta n ce , t o co n vert the company from a Sub-S corpor ation to a limit ed

2 partne rship for tax rea sons. The new business was named I E C Company , L td. Another entity , I EC Manag ement Company , L L C, was cre ated to b e t he 1% g ener al partne r, with Mr. Hudson as the owne r. The conver sion and partne rship documents, prepa red by L eig hton, wer e s i g ned Fe bruar y 7, 2006, with an effec tive date of conv er s ion September 30, 2005. The Hudsons signe d the documents. Although no interest in the busi n es s h ad b ee n transfe rre d to him, the documents stated that Mr. Pearson was a 50% limit ed partne r; Mrs. Huds on’s share was 26%, Mr. Hudson’s share 20%, and Ca s ey ’s s h ar e 3%. Mrs. Pearson was not listed as a partne r, nor did she sign the ag ree ment. Although the company was now a limit ed partne rship and n o t a corpor ation, the parties c ontinued to deal in and r efle ct their owne rship in shares of stock. By the end of 2005, Mrs. Hudson rec eived her inheritanc e, and Mr. Pearson wanted her to tr an s fe r t he stock share s

M r. Pearson met L eig hton at the country club; they play ed g olf toge ther and discussed 2 their business af

fairs. The Hudsons and the L eig htons later bec ame soc ial friends. 6to him to finalize their agr eeme nt. Mrs. Hudson o wn ed s eventy -three share s, Mr. Hudson owned

twenty -o n e share s, and Mrs. Pearson and Casey eac h owned three share s. Mrs. Hudson testified that on Dec ember 29, 2005, she prepa red two stock cer

tificates transfe rring twenty -five share s to Mr. Pearson and twenty -two share s to Mr s. Pearson, so that toge ther they would have fifty perc ent

owner ship, and lef

t the cer tificates on Mr. P ear son’s desk. He denied findi ng them and questions her various versions of events. I n ear lier t estimony , she said that she wrote the t wo certificate s in the stock log book, but they wer e never enter ed into the log. At trial, she testified that she may have destroy ed the two c ertifica tes without list ing the m. Mrs. Hudson testified that while the Hudsons wer e in Bur net at a rea l estate closing that day or the next, Mr. Pearson called them “fur ious ” o v er t h e t wo cer tificates that included Mrs. Pearson. Acc ording to the Hudsons, he demande d that they put all the share s in his name alone.

On Dec ember 31, 2005, Mr. Pearson and the Hudsons met at the I EC office , and the Hudsons g ave Mr. Pearson a cer tificate f or for ty -seve n share s of I EC corporate stock in his name. These wer e the share s Mrs. Hudson inherited that had been owned by the McQue en trust. At some point Mrs. Hudson contac ted Mrs. Pearson about her three s h ar es , an d Mrs. Pearson appar ently authorized her mother to do whateve r Mr. Pearson wanted. Mrs. Hudson canc elled Mrs. Pearson’ s

cer tificate a nd made out a se cond ce rtificate in Mr. Pearson’ s name for three share s. The result was that Mr. Pearson had two cer tificates in his name totaling fifty share s, Mrs. Hudson owned twenty -six share s, Mr. Hudson owned twenty -one share s, and Casey owned three share s. Mrs. Pearson had none. The stock book in Mrs. Hudson’s h andwr iting shows that “as of 12-31-05” Mr. Pearson owned fifty share s. Mr. Pearson testified that his two stock cer tificates

7and t h e h an d writ ten ag ree ment with the Hudsons wer e missing from the house, and wer e never

located or produce d. Mrs. Hudson testified that at tax time in 2006, Mr. Pe ar s o n t old the Hudsons that they neede d to f

ile a g ift tax return for the stock transfe rre d to him. Acc ording to her, Mr. Pearson said that he and Mrs. Pearson did not want to pay income taxe s o n t h e transfe r of stock, and that t h e Hu d s o n s would not be hurt by filing a g ift tax return, beca use they could pay now o r t h ei r estate would pay later. We note that Mr. Pearson would only owe income t ax if the stock wer e compensa tion. At some point Mr. Huds o n m ad e s ome notes, one say ing “cost of g iving stock to Mr. Pearso n ” and another stating “47% stock to Mr. Pearson as compensa tion.” Mr. Pearson

encour ag ed Mr. Hudson to confe r by phone with L eig hton and on a “sticky note” wrote the issue for him to discuss with L eig hton: “How can y ou trea t compensa tion differ ent than a g ift and backdate compensa tion and not backda te g ift.” Mr. Pearson could not explain what he meant by this inquiry

. Both Mr. and Mrs. Hudson stated that they had attorney L eig hton file fede ral g ift tax returns at Mr. Pearson’ s direction to kee p Mr. and Mrs. Pea rson from ha ving to pa

y income taxes. Mr. Pearson denied having any thing to do with the g ift t ax returns, but Mrs. Hudson said that

ever y thing went throug h Mr. P ear son. L eig hton’s discussions about t he returns wer e mos tly with M r. Hu d s o n , even though Mrs. Hudson made the transfe r. L eig hton revie wed Mrs. McQue en’s estate information and appar ently , he deter mined the date to use for the g ift. Mr. Pearson testified that ever y thing was backda

ted to the day afte r Mrs. McQue en died, and the date of the g ift was stated to be Fe bruar

y 25, 2005. The fede ral g ift tax returns, dated October 16, 2006, split the g ift betwee n the Hudsons and reflec t that eac h g ave Mr. Pearson 23.5 share s wor t h $127,431, a tot al of almost 8$255,000, which utiliz ed a portion of the Hudsons’ unified exemption equivalent amount and

there fore reduc ed the amount rema ining available to them. Mr. Huds o n t est ified that he did not actua lly know what a g ift tax was; he thought it was “us pay ing the tax instead of them.” I f someone had tol d him that signing the form made t h e p ro p erty Mr. P ear son’s, he would not have signe d it. The company ’s 2005 income tax return, prepa red afte r Mr. Pearson was manag ing the business, also shows that Mr. Pearson owned fifty share s as of Fe bruar y 25, 2005, the day afte r Mrs. McQue en’s death. Mrs. Pearson arg ues that the Hudsons only owned or controlled twenty -one share s apiec e as of that date and could not have g iven Mr. Pear son fifty share s by then. By 2006, a rift had for m ed i n t he working rela tionship betwee n Mr. Hudson and Mr. Pearson. Opinions on the rea sons differ ed. Mrs. Hudson stated that Mr. Pearson’ s manag ement sty le wa s bully ing, y elling, and raising his voice very loudly

. A partner who later bought int o the business also alluded to Mr. Pear son’s manner of dea ling with issues. Mr. Pearson encour ag ed two investors to appr o ac h the Hudsons about buy ing their rema ining interest. I n mid-2006, the Hudsons sold forty share s to the investors and g ave their

rema ining seven share s to their son. At that poi n t , M r. P earson owned 50% of the company , the two new investors eac h owned 20%, and C asey owned 10%. An amended partnership ag ree ment

was prepa red in April 2006, eff

ective J anuar

y 1, 2006, but the rec ord ref lects that it was not signe d until Marc h 2012. I t refl ects Mr. Pearson as owner of the g ener al partne r, even though there was

never a for mal transfe r of this 1% intere st from Mr. Hudson to Mr. Pear son. Af t er her pare nts relinquished their interest, Mrs. Pearson sent an e-ma il to Mr. Pearson containing a draf t messag e she was consideri n g s en d i n g to her pare nts. I n it, she complained that they g ave Casey their rema ining share s but none to her. I n the draf t, Mrs. Pearson 9wrote, “We all know t h at M r. Pearson’ s 50 perc ent was leg ally considere d a g ift, and there fore ,

I have no community rig ht to a ny of it.” She neve r sent the e -mail to her pa rents, but Mr. Pear son forwa rded her draf

t to L eig hton with the comment, “F inall y , a s m o k ing g un from Hea ther. This should seal her

fate .” I n ear ly 2007, Mr. and Mrs. Pearson met with L eig hton for estate planning

. His questionnaire lists the I EC stock as Mr. Pearson’ s separ ate proper ty

. L eig hton say s his information

came from both parties. Mrs. Pearson denied attending the meeting , but notes i n her handwriting state that, in event of divo rc e, s h e wo uld g et no I EC stock but Mr. Pearson would pay her for her thre e shar es.

Among other documents, L eig hton prepa red a marital proper

ty ag ree ment. I t states that the I EC stock is Mr. Pearson’ s separ ate p ro p er t y an d that the income from the stock would also be his se para te proper ty

. I t a lso pr ovides that, in the event of divorce , Mr. Pearson would pay Mrs. Pearson for her three share s of stock. Mrs. Pear s o n d i d not have independe nt leg al counsel for these transac tions, a

nd she alleg ed that she did not voluntarily sign the ag ree ment. The pa rties executed the doc ument, but the trial court f ound the ag ree ment unenfor cea ble.

LEGAL P RINCIP LES AND STANDAR DS OF R EVIEW No findings of fact or conclusion s of law

Where finding s of fac t and conclusions of law are not reque sted or filed, the judgme nt of the trial court implies all fac t finding s nec es sary to support the judgme nt, and the judgme nt must be aff

irmed if it can be upheld on any leg al theory supported by the rec ord evidenc e. Rosemond

v. Al-Lahiq , 331 S.W .3d 764, 766-67 (Tex. 2011); In re W .E.R. , 669 S.W .2d 716, 717 (Tex. 1984);

10Davis v. Huey , 571 S.W .2d 859, 862 (Tex. 1978); see Tex. R. Civ. P. 296. I mplied finding s may be

challeng ed in the s ame manner as a trial court’s w ritten finding s or a jury verdic t. BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 795 (Tex. 2002); Roberson v. Robinson , 768 S.W .2d 280, 281 (Tex. 1989). The appellate court cannot look to comments the judge makes from the bench as

a substitut e for finding s of fac t and conclusions of law. W .E.R ., 669 S.W .2d at 716; see Tex. R. Civ. P. 296. I n any

event, a written judg ment controls over the trial cour

t’s oral pronouncement. In re K.M.B. , 148 S.W .3d 618, 622 (Tex. App.—Houston [14t h Dist.] 2004, no pet.). The trial court is fre e to state its oral ruling and then modify its decision in its wr i t t en judgme nt, and no additional evidence is require d for it to do so. Cook v. C ook , 888 S.W .2d 130, 131-32 (T ex . Ap p . — C o rp u s Christi 1994, no writ); see Cash v. Cash , No. 03-04-00560- CV, 2005 Tex. App. L EXI S 5909, at *10- 11 (Tex. App.—Austin J uly 27, 2005, no pet.) (me m. op.). Separate and com m uni ty property; division of property

The Texas Fa

mily Code direc ts the trial court to order a division of the marital estate in a manner

that the cour

t deems just a

nd rig ht. Tex. F am. Code § 7.001. The court cannot divest

a party of separ ate persona l proper ty , Cameron v. Cameron , 641 S.W .2d 210, 219-20 (Tex. 1982) , or separ ate rea l proper

ty , Eggeme

yer v. Eggeme

yer , 554 S.W .2d 137, 142 (Tex. 1977). Otherw ise, the trial court has broad discretion in dete rm i n i n g t he division. The appellate court revie ws the division for an abuse of discretion. McKnight v. McKnight , 543 S.W .2d 863, 866 (Tex. 1976). The ruling will not be disturbed on appea l absent abuse. Cocke rham v. Cocke rham , 527 S.W .2d 162, 173 (Tex

. 1975). A trial court abuses its discretion only when it acts in an unrea sonable or arbitra ry

manner , or whe n it acts without refe renc e to any g uiding rules or principles. W orford v. Stamper ,
11801 S.W .2d 108, 109 (Tex. 1990); Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 238, 241-42

(Tex. 1985). Property

owned or possessed by

either spouse during or on di ssolution of marriag e is presumed to be community proper ty

. Tex. Fam. Code § 3.003. Communi ty proper ty includes any proper ty , other than separ ate proper ty , acquir ed by either spouse during marria g e. Id

. § 3.002. This is true without reg ard to whether the proper ty or owner ship interest is held in the name of only one spouse or in the names of both. As a g ener al rule, proper ty convey ed to one spouse during marria g e is presumed to be community proper ty , unless it is “displace d by a differ ent or contra ry presumption that would show that the proper ty so convey ed was in f

act separ ate pr operty .” Kyles v. Kyle s , 832 S.W .2d 194, 196 (Tex. App.—Be aumont 1992, no writ).

The community proper

ty presumption can be o v er co m e by evidenc e that the proper ty was acquir ed b y gi ft

. Id

. at 197. A g ift is a voluntary transfe r of proper ty to another made g ratuitously and witho u t consi dera tion. Magness v. Magness , 241 S.W .3d 910, 912 (T ex . App.—Dallas 2007, pet. denied)

. Property a spouse acquir es by g ift during marria g e is the separ ate property of t he recipient spous e. T ex . Fa m. Code § 3.001(2). To show that a transfer of proper ty was a g ift, the recipient must establish: (1) the donor’s int ent t o make a g ift; (2) delivery of the proper

ty ; and (3) acc eptanc e of the proper ty

. In re Marriage of

Monce y , 404 S.W .3d 701, 710 (Tex. App.—Texarkana

2013, no pet.). The rec ipient of proper

ty has the burden to prove the g ift, and there fore the separ ate char acte r of the proper

ty , by clea r-a nd-convinc ing evidenc e. Id

. at 705-06, 710; see Tex. Fam. Code § 3.003(b). The burden of proof in ref uting a presumption of gift i s also by clea r-a nd-co n v i n ci ng

12evidenc e. Bogart v. Somer , 762 S.W .2d 577, 577 (Tex. 1988); Amador v. Berrospe , 9 6 1 S.W .2d

205, 207-08 (Te x . App.—Houston [1st Dist.] 1996, pet. denied)

. Clear-and-convincing evidence

Clear- an d -convinc ing evidenc e is define d as that deg ree of proof that produce s in the m ind of t he trier of fact a firm belief or convi ct i o n ab o u t the t ruth of t he allegations soug ht to be proven and established. In re G.M. , 596 S.W .2d 846, 847 (Tex. 1980); see Tex. Fam. Code § 101.007. Transfers with in fam ily

I nterspousal transfe rs are presume d to be a g ift and, thus, the separ ate proper ty of the rec ipient spouse. In re Marriage of Morrison , 913 S.W .2d 689, 692 (Tex. App.—Texarkana 1995, writ denied)

. A presumption of gift m ay also arise with respec t to transfer s betwee n family

m em b er s , s u ch as a pare nt and child, on the basis that the rec ipient is the natura l object of the donor’s or g rantor’ s bounty and aff ection. Kyles , 832 S.W .2d at 197; Somer v. Bogart , 749 S.W .2d 202, 204 (Tex. App.—Dallas 1988, writ denied)

. Fo r ex am p l e, when a pare nt pay s the purcha se price for rea l proper

ty and puts the title in a child’s name, or vice versa , a presumption of g ift arises. Equitable Trust

Co. v. Roland , 721 S.W .2d 530, 533 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.) ; Mu r

phy v. Metropolitan Life Ins. Co. , 498 S.W .2d 278, 282 (Tex. App.—Houston [14t h Dist.] 1973, writ ref ’d n.r.e.)

. These rela tionships may include in-laws. Amador , 961 S.W .2d at 207 (fa

ther-in- law natura l object of son-in-law’ s bounty and aff ection); Somer , 749 S.W .2d at 204 (son-in-la

w natura l object of father-in- law’s bounty and aff ection). All the se presumptions

are rebuttable

. 13Legal and factual sufficiency re view I n co n d ucting a leg al sufficie ncy revie w, we view the evidenc e in the light m o s t favor able to the trial court’s finding s, cre diting favor able evidenc e i f rea sonable jurors could, and disreg arding co n t rar

y evidenc e unless rea sonable jurors could not. City of Keller v. W ilson , 168 S.W .3d 802, 807 (Tex. 2005). We view the evidenc e in the light most favor able to the verdic t and i n d ulge ever

y rea sonable infere nce that would support the finding

. Id

. at 822. The ultimate test for leg al sufficie ncy is whether the evidenc e at trial could enable rea sonable and fair- minded people to rea ch the verdic t under r eview. Id . at 827. When the burden of proof at t rial was clearand-c onvincing evidenc e, the appellate court looks at all the evidenc e in the light most favor able to the finding to deter

mine whether the evidenc e was sufficie nt to produce in the mind of the fac t finder

a firm belief or conviction as to the truth of the alleg at i o n . In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002). When revie wing the factual sufficiency of the e vidence , we c onsider and w eig h all

o f t h e ev idence in the rec ord and set aside the finding only if the overw helming weig ht of t h e evidenc e supporting the finding is so wea k or the finding so ag ainst the g rea t weig ht of the evidenc e

as to be clea

rly wrong and unjust. Dow Chem. Co. v. F r a n ci s , 46 S.W .3d 237, 242 (Tex. 2001); Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). When the burden of proof at trial was clea

r-andconvincing evidenc e, the appellate court must deter mine whether the evidenc e is such that a fac t finder co u l d re as o n ably form a firm belief or conviction about the truth of the fac t to be proven, g iving due considera

tion to evidenc e that the fac t finder could rea sonably have found to be clea r and convincing

. In re C.H. , 89 S.W .3d 17, 25 (Tex. 2002).

14I n considering the evidenc e, we are mindful that the t rier of fac t is the j udg e of the

cre dibilit y of the witnesses and the weig ht to g ive their testimony

. “[T] he trial judge is best able to observe and asse ss the demea nor and c redibility

of the witnesse s and to sense the ‘for ces, pow ers, and influence s’ that may not be appa rent fr om merely

rea ding the rec ord on appea l.” In re A.L.E. , 279 S.W .3d 424, 427 (Tex. App.—Houston [14t h Dist.] 2009, no pet.).

DISCUSSIO N Our analy sis is complicated by the confl i ct i n g dates asser ted to be the date of g ift

or transfe r of the business interest to Mr. Pearson. I t is further confuse d by the fac t tha t the parties arg ue over and rely upon the transfe r of corpor ate stock afte r the b u siness had been conver ted to a limit ed partne rship, in which owner ship would be expres s ed as s h aring ratios rathe r than share s of stock.

The e vidence shows that Mr. Pear son, Mrs. Hudson, and Mr. Hudson met toge ther in 2004 and ag ree d that, if Mr. Pear son would join the business and “turn it around,” the Hudsons would transfe r to him a 50% owner ship interest in the business afte r Mrs. Hudson inherited at some unknown time in the future. I t ha ppened that Mrs. McQue en died within the y ear , but the transfe r could not occur until afte r her death beca use the Hudsons did not own enoug h share s. Whether they inte n ded this future transac tion to involve a g ift to Mr. Pearson in the leg al sense is disputed. Appar ently , the Hudsons believed that they could persona lly compensa te Mr. Pearson with their own stock for r eviving their business.

I t is undisputed that, at the time of divorc e, the business intere st in iss ue—whe ther

a limit ed partne rship or share s of stock—was held in the name of David Pearson. Ne v er t h eless,

15initially the business interest was presumed to be community proper ty beca use it was an asset acquir ed during marria g e and owned by one of the spouses on dissoluti on of marria g e. Mr. Pearson had the burden to re fu te this presumption. He say s that he did so by showing the source of his

owner ship, supported by

documentar

y evidenc e in the re cord. I t is also undisputed that no share s of stock were transfer red to Mr. P ear son befor e the conver sion. No fo rm al transfe r of stock from Mrs. Hudson and Mrs. Pearson to Mr. Pearson

occur red until Dec em b er 3 1 , 2 0 0 5. Neve rtheless, the g ift tax returns and the business tax return, all prepa red in 2006, show that Mr. Pearson somehow acquir ed share s in the corpor ation Fe bruar y 25, 2005, the day afte r Mrs. McQue en died. The partne rship ag ree ment, signe d by Mr. and Mrs. Huds o n , s hows that Mr. Pearson acquir ed a 50% limit ed partne rship interest eff ective September 30, 2005.

Mr. Pearson first relies upon his contention tha t he and the Hudsons had an ag ree ment in 2004 that the Hudsons would g ift him fifty share s of stock in I EC afte r Mrs. McQue en died. As Mr. Pearson conce des, howeve r, a g ift cannot be made to take eff ect in the future; a promise to g ive is without consideration. See F leck v. Baldwin , 172 S.W .2d 975, 978 (Tex. 1943). Mr. Pearson further arg ues t h at , in any event, the prior promise was of no conseque nce, beca

use Mrs. Pearson and Mrs. Hudson actua lly tr an s fe rred stock to him on Dec ember 31, 2005, a complete d g ift. Be cause the transf ers c ame f

rom his mother -in-law and his wife, the transac tions raised the presumption that the transfe rs wer e g ifts to him as the natura l object of eac h woman’s bounty and aff ection. Mr. Pearson contends that once he raised the presumption of g ift, Mrs. Pearson ha d the burde n to disprove their dona tive intent, which she fa iled to do.

16Assuming without deciding that Mr. Pearson is corr ect in placing the burden,

the trial court’s decr ee implies the nece ssary finding s in support of the judgme nt. That is, assuming Mr. Pearson raised t h e presumption of g ift, which there by require d Mrs. Pearson to disprove the donors’ intent to make a g ift, the rec ord contains evidenc e to support that finding

. The question then become s whether

the evidenc e is clea

r and c onvincing

. Mr. Pearson direc ts us to documentar y evidenc e in t h e rec ord that supports his position. He points out that the partne rship interest and stock cer tificates wer e place d only in his name. Mr. a

nd Mrs. Hudson had ag ree d that Mr. P ear son would have de cision-making control of the business. Putti ng the partne rship interest in Mr. Pearson’ s name is consistent with allowing him to manag e the busine s s an d would entitle him to sole manag ement and control of the business interest. See Tex. Fam. Code § 3.102. But that does not neces s ar i l y prove the char acte r of the interest. Mr. Pearson relies espec ially upon the g ift tax return s filed by the Hudsons, which he arg ues prove that the transfe r from Mrs. Hudson was a g ift to him. Standing alone, this evidenc e is signific ant and persua sive. Howeve r, the returns state a date of g ift inconsistent with other evidenc e, and Mr. and Mrs. Hudson both testified to circ umstances and rea sons explaining the filing of these returns a nd disputing g ift. M r . Pe arson attacks Mrs. Hudson as an untruthful witness and contends her te s ti mo ny is highly suspect, unworthy of belief, incre dible, and cre ated afte r-the- fac t. As s t at ed in his reply brief: “All of the observa ble documentar

y evidenc e ref

lects a g ift to [Mr. Pearson]. The only contra ry evidenc e is the incre dible testimony of Diana Hudson, a demonstrably untruthful witness.” The appellate court does not deter mine cre dibilit y of a witness; t h e fa ct finder is the judge of the

cre dibilit y

of a w itness and the we ight to g ive her testimony

. 17Mr. Pearson also arg ues that the donors’ contra ry position only arose with the divorce proce eding

. Acc ording to Mr

. Pearson, ever y one trea ted the transfe r of stock as a g ift to him until the divorce proce eding

. Mr. Pearson’ s comment to L eig hton at the end of 2006 that Mrs. Pearson’ s

e-ma il at last rec og nizes his owner ship and “[f]i nally

. . . seals her fate ” sug g ests that Mrs. Pearson had pre viously

disputed or not rec og nized his separate -prope rty owner ship. Mr. Pearson also focuse s upon the trial court’s oral s t atements from the bench that the transfe r was either a g ift to both Mr. and Mrs. Pearson or a barg ain for a transfe r for which 3 Mr. Pearson rec eived consideration, thus showing that the co u rt ap p lied an incorre ct leg al rule to

rea ch its decision. As Mr. Pearson’ s reply brief states, “Tha t the Hudsons wer e alleg edly sloppy in their observa

nces of corpor ate formalities” does not make the court’s theory valid. Ag ain, on appea l

we deter mine whether evidenc e can support the court’s ruling in the decr ee, apply ing the corr ect revie w, reg ardle ss of statements from the bench. I n any event, the testimony of all conce rned shows that the transfe r was depende nt upon Mr. Pearson g oing to work at I EC, improving its perf ormanc e and manag ement, and incre asing its profits. He went to work for a substantial decr ease in salary on the basis that he would wor k to improve the fortunes of the company in exchang e for rec eiving an

owner ship interest, which a t least sug g ests consideration and not a g ratuitous g ift.

The testimony of Mrs. Pearson and Mr. and Mrs. Hudson, if believed, supports that they lacke d donative intent to make a g ift of the business to Mr. Pearson. Mrs. Pearson did not sign the partne rship documents and did not herse lf make the stock transfe r to Mr. Pearson, even though

A g ift cannot be made to the community

. In re Marriage of Monce y , 404 S.W .3d 701, 710 3 (Tex. App.—Texarkana

2013, no pet.). 18she a uthorized it. Fur ther, some evidenc e shows that Mr. P ear son ag ree d to pay Mrs. Pearson for her thre e shar es of stock in the e vent of divorc e, ca sting doubt on its char acte r as a g ift. Mr. Hudson and Mrs. Hudson signe d documents rec og nizi n g M r. P ear son’s partne rship interest even befor e they transfe rre d stock to him. No t h i n g in writing at the time of the Dec ember 2 0 0 5 t ra n sfer of stock ref lects that the transfe rs wer e g ifts. By that time, a corpor ation no longe r exis ted, and Mr. Pearson alre ady had a 50% interest in the limit ed partne rship. The Hudsons explained the ir rea sons f or filing g ift tax returns a t Mr. Pearson’ s direc tion. The tax returns ref

lect that the business interest was transfe rre d to Mr. Pearson the day afte r Mrs. McQue en died, althoug h no partne rship documents had y et been signe d and no stock had y et been transfe rre d. Attorney L eig hton sug g ested that th i s might ref lect another example of the informal nature of transac tions be tween family members in a family business. Howeve r, a g ift require s delivery , and it is undisputed that no formal transfer of st ock occurre d for ten months, althou gh t h e partne rship ag ree ment ref

lected his interest. Whil e a partne rship ag ree ment may be executed on one date, with

a retroa ctive eff

ective date, Mr. Pearson cites us to no case in w hich a g ift can be made retroa ctive to an ea rlier da te. Although we g ener ally ag ree wi t h t he sentiment expressed in In re McM ahen , No. 07-13-00172- CV, 2014 Tex. App. L EXI S 6154 (Tex. App.—Ama rillo, June 6, 2014, no pet.) (mem. op.), we find it distinguishable. I n McM ahen , the question of g ift was undisputed; the dispute reg arde d the recipient of t he gift. Id

. at *1-2. The parents gave three chec ks to t h re e i n d ividuals, including their daug hter and her husband, eac h marke d “a g ift”; eac h wa s i n am o u nt within the annual exclusion, which would avoid g ift tax. Id

. I f combined, tax would be owing

. Gift tax returns

wer e filed showing no tax due. See id

. at *7. When divor ce ensued, the pare nts tried to show that 19they intended all the money for their daug hter, but the appellate court did not acc ept the arg ument.

Id . at *8. Her e, the que stion of gif t is disput ed; there was no a ttempt to avoid gift taxes. Mr. Pearson initially h ad t h e b urden to prove that the business transfe r to him

was a g ift—that is, that the transf eror s made a

voluntary

transfe r t o him, that it was made without consideration, and that the donors in t en d ed i t t o b e a g ift. Assuming that Mr. Pearson raised the presumption of g ift by showing the transfe r from his wife and mother-in-la w, our revie w of the evide n c e r e f

le cts that the trial court could find from clea r-a nd-convinc ing evidenc e that Mrs. Pearson and her pare nts did not i ntend to make a separ ate- proper

ty g ift of the business to Mr. Pear son.

P ossession order conce rning chil dren’s air tr avel

The Pearsons are the pare nts of two daugh ters. Sy dney was born in 2004, and Pey ton was born in 2009. At the time of the final hear ing, they wer e ag es eig ht and two respe ctively

.

Mr. Pearson is a licensed p i l o t who has flown for a number of y ear s and has an instrument rating

. He owns a propeller -driven, non-pre ssurized, single -eng ine, private airc raf t that he flies himself. He complains about the conditions set on the children’ s air trave l. I n his first issue, he questions whether the rec ord contains leg ally and fac tually suffi cient evidenc e of g ood cause to restric t his air trave l with his children. I n his s ec o n d issue, he asks whether the trial court’s order re gar d ing the children’ s air trave l violates the Texas Family Code and constitutes an abuse of discre tion.

Stan dard and scope of rev iew with respec t to term s of possession

T h e b es t i ntere st of the child shall alway s be the court’s primary consideration in det er m i n i n g i s sues such as conser vatorship and terms of possession and acc ess to the child. 20Tex. Fam. Code § 153.002; Lenz v. L enz , 79 S.W .3d 10, 14 (Tex. 2002). The tria l court has wide

latitude in deter

mining best interest. Gillespie v. Gillespie , 644 S.W .2d 449, 451 (Tex. 1982). We revie w a trial court’s decisions on ch i ld custody , control, possession, and visitation for abuse of discretion. In re J.R.D. ,169 S.W .3d 740, 742-43 (Tex. App.—Austin 2005, p e t. denied)

. The court’s ruling will be reve rsed only when it appea rs from the rec ord as a whole that the trial court has abused i t s d i s cr et i o n . Gillespie , 644 S.W .2d at 451. We will not reve rse unless the trial court acts unrea sonably , arbitra rily , or without ref

ere n ce t o any g uiding rules and principles. Coburn

v. Moreland , 433 S.W .3d 809, 823 (Tex. App.—Austin 2014, no pet.) (citing Downer , 701 S.W .2d at 241-42 and In re Marriage of Jeffries , 144 S.W .3d 636, 638 (Tex. App.—Texa rk ana 2004, no pet.)); Coleman v. Coleman , 109 S.W .3d 108, 110 (Tex. App.—Austin 2003, no pet).

Under an abuse- of-discr etion standard, leg al and fac tual sufficie ncy of the evidenc e

are not independe nt g rounds of err or but ra t h er ar e re levant fac tors in assessing whether the trial court abused its discretion. Coburn , 433 S.W .3d at 823; Flowers v. Flowers , 407 S.W .3d 452, 4 5 7 (T ex . App.—Houst on [14t h Dist.] 2013, no pet.); Zeifman v. Miche ls , 212 S.W .3d 582, 587 (Tex. App.—Austin 2006, pet. denied) ; Ditraglia v. Romano , 33 S.W .3d 886, 889 (Tex. App.—Austin 2000, no pet.); Doyle v. Doyle , 955 S.W .2d 478, 479 (Tex. App.—Austin 1997,

no pet.). I n making this deter mination, we consider whether the trial court had sufficie nt e vidence upon which to exercise its discretion and, if so, whether i t er re d i n the exercise of that discretion. Coburn , 433 S.W .3d at 823; Zeifman , 21 2 S

. W.3d at 588; In re T.D.C. , 91 S.W .3d 865, 872 (Tex. App.—For t Worth 2002, pet. denied) ; Jenki n s v. Jenk ins , 16 S.W .3d 473, 478 (Tex. App.—El Paso 2000, no pet.). We will uphold its judgme nt on any leg al theory supported by the evidenc e. W

orford , 801 S.W .2d at 109. 21The appellate court may not substitut e its judgme nt for that of the trial court, and

no abuse of discretion exis ts wher e the trial court bases its decision on conflicting evidenc e. Davis , 571 S.W .2d at 862. There is no abuse of discretion so long as the rec ord contains some evidenc e of

a substantive and probative char acte r to support the trial court’s decision, Coburn , 433 S.W .3d at 8 2 3 ; V aldez v. Valdez , 930 S.W .2d 725, 731 (Tex. App.—Houston [1st Dist.] 1996, no writ ); Flower s , 4 0 7 S

. W

. 3d at 457, and in that case , we will not substitut e our judgme nt for that of the trial court, Echols v. Olivarez , 85 S.W .3d 475, 476 (Tex. App.—Austin 2002, no pet.). An appellate

cour t ca n n o t reve rse for abuse of discretion mere ly beca use it disag ree s with a decision of the t rial court. Coleman , 109 S.W .3d at 110 (citing Downer , 701 S.W .2d at 242). The fact that a trial judge may decide a matter within its discretionar y authority differ ently than an appellate judge in a si milar circ umstance might have done does not demonstrate an abuse of di scre tion. Downer , 701 S.W .2d at 242.

The parties could not ag ree on the cir cu m s t an ce s in which the children could fly wi th Mr. Pearson in his airplane

. The Dec ree of Divorce includes the following order , which the court e x pressly

found to be in the c hildren’s be st interest:

Unt i l ea ch child is eig ht (8) y ear s old, BY RON DAVI D PEARSON is prohibited from permitting t he child to fly in any non-pre ssurized private or non-commer cial airplane , unless another licensed private pilot is fl y i n g the plane so that BY RON DAVI D PEARSON can tend to the child. After eac h child rea ches eig ht (8) y ear s of ag e, BY RON DAVI D PEARSON shall be permitted t o fl y with the child on any non-pre ssurized private or non-commer cial airplane , provided that another licensed private pilot is fly ing the plane so that BY RON DAVI D PEARSON can tend to the child, or provided that BY RON DAVI D PEARSON is acc ompanied by a responsible and fa miliar car eg iver of the children ove r twenty -one ( 21) y ear s of ag e.

22Under this order , M r. P ea rs o n ’s children can alway s fly with him in his private plane. Until a

child is eig ht y ear s of ag e, howeve r, a licensed pilot other than Mr. Pearson must fly the plane

so that Mr. P ear son can tend to his children during flight. After a child attain s eight y ear s of age , Mr. Pearson can pilot the plane so long as he and the child are acc ompanied by another adult, who is a responsible a

nd familiar c are g iver of the children. The court’s condit i o n only applies to flig ht in an unpressurized airplane

. The trial court did not place any restric tion on flig hts in pressurized airc raf t, commerc ial ai rp l an es , or any other mode of transporta tion. The trial court did n o t re q u i re M r. Pearson to transport the children by any particula

r means or mode of trave l, nor did it prohibit Mr. Pearson from utiliz ing any mode of trave l. Neve rtheless, Mr. Pearson complains that the tria l court abused its discretion beca use the order restric ts visitation and signific antly infring es upon the family rela tionship and the children’ s ability to bond and communicate with him as their non-custodial pare nt. See Tex. Fam. Code § 153.001(a) (1) (public policy is to assur e children have fre quent and continuing contac t with pare nt). He also ar gu es it unrea sonably restric ts his rec rea tional activities with his children. Mr. Pear son contends that the e vidence is leg ally and fac tually insufficient to prove g ood cause to restric t his leg al private air trave l and, in the absenc e of g ood cause , the trial court’s ruling violates the Texas Fa

mily Code and c onstitut es an a buse of discr etion. The Texas Family Code provides that the trial court may restric t the means of trave l of a child by a leg al mode o f t ra n s p ortation only afte r a showing of g ood cause contained in the

rec ord and a finding by the court that the restric tion is in the best interest of the child. Id

. § 153.257. Mr. Pearson relies upon this statute to arg ue that the trial court improperly restric ted the children’ s

means of fly ing with him in his airplane , a leg al mode of trave l , an d t h at n o go od cause for the 23restric tion was shown. Assumi n g t h at t his statutory provision g overns the trial court’s order, it is

implied that the trial court found tha t the rec ord conta ined evidenc e of g ood cause

.

The evidenc e demonstrate s that non-commer cial fly ing is a leg al and statistically safe mode of transporta tion. Mr. Pearson owns a private, non-pre ssurized, propeller airc raf t with a small, compac t cabin that seats four people. Mr. P ear son’s plane i s “t ec h n ically advanc ed” with specia l safe ty fea tures. I n the event of an emer g ency or if the pilot become s disabled, an external para chute can allow the pl ane to settle to the ground. There are sever al co n t ro l s an d proce dural steps that a pilot or passeng er must follow in order to deploy the chute an d, of course , the plane will land on whateve r is below, not at an a irport or landing strip.

The evidenc e shows that Mr. Pearson is a competent, safe , responsible, experience d, and conscientious pilot. Mrs. P ear son confirme d that he is car eful and meticulous. Howeve r, t he issue at trial was not o n l y wh ether Mr. Pearson was a skilled pilot or whether his plane was safe ; those fac ts were essentially undisputed. The contested i ssue concerne d whether , as t he only adult onboard, he could safe ly pilot his plane while simult aneously car ing for the children. Mrs. Pearson testified that she has only flown with Mr. P ea rs o n fi v e t o seven times and has only flown in his

curr ent plane once or twice. She and Sy dney have flown wi t h Mr. Pearson a few times. Sy dney flew w ith Mr. Pearson alone one time on a fiftee n- or twenty -minute flig ht from Austin to Burne t. Mr. Pearson testified that Sy dney was two when she first flew in the plane with him; Mrs. Pearson testified that the child wa s four or f ive. I t does not appea

r that Pey ton has eve r flown with him. Mrs. Pear s o n testified that Mr. Pearson become s anxious even befor e the flig ht b egi n s . He become s tense if distracted by conver sation or noise in the passeng er are a which might interfe re with his fly ing or communicating with air traff ic controllers. She has experience d his 24anxiety , and it is stressful for all conce rned. Whenever the family flew toge ther, her responsibility

was to keep the child as quiet as possible to preve nt any di s t ra ct ion or interfe renc e with Mr. Pearson’ s con ce n t ra t i o n . As she put it, “Don’ t talk. Don’t move. Don’t do any thing or he just frea ks out.”

The parties own vacation proper ty in Cr es t ed Bu tte, Colorado. The flig ht time to Gunnison, Colorado, is about three hours and twenty minutes. Mrs. Pearson testified that ordinarily , she flew to Colorado with the children on commerc ial airc raf t, transporting them and all their items with her, even when Mr. Pearson flew his plane to Colorado. She and the children have never flown with him to Gunnis on. They did fly toge ther onc e in a lar g er, pr essurized plane. Both children are active, an d t he y oung er child espec ially is a strong -willed two-y ear -old. Mrs. Pearson did not believe that Mr. Pearson could fly and tend to an eig ht-y ear -old, much less a child of two. She expressed conce rn about the children’ s abilities to b eh av e as passeng ers for long distances without proper supervision; about t h ei r fly ing alone in a very small

ca b i n , which can be a high- stress situation; and about the nece ssity of Mr. Pearson’ s need for

s t ri ct conce ntration when fly ing long distances, espec ially in are as such as the Rocky Mount ai n s . Sh e wa s co n ce rn ed whether he could supervise and tend children while piloting a plane. One of Mr. Pearson’ s witnesses ma d e s im il a r o b s e r vations. There was testimony and discussion about using eig ht y ear s of ag e as a cutoff date for supervision, perha ps beca use the older child was alre ady eig ht. Mrs. Pearson w anted the a g e to be older , at least ten or more. The first time M r. P earson took Sy dney in the plane, Mrs. Pearson was also in the plane, and he also took along his flig ht instructor Gar y Biba to assist him in case Sy dney was unhappy or t hey had any kind o f i s s u e. Mr. Biba testified t hat S y dney was a happy flier. He also 25testified, howeve r, that somebody has to be in char g e of the plane and in control of the airc raf t. The pilot is responsible, and his attention must be devoted to fly ing the plane. I n the event a child should

cause an issue, he testified that hopefully an adult or older child would be on board to he lp c ontrol the situation. A pilot friend test i fi ed t h at he had flown with both Pearson daug hters and they

wer e well-be haved and calm. He stated that as a pilot Mr. Pearson exercised a “ver y calm, rational approa ch an d decision-making proce ss.” Communi cation with flig ht controllers usually occur s only at intervals; during the interim, the pilot could atten d to passeng ers’ needs. Mr. Pearson’ s plane allows one-ha

nded fly ing and has an au t opilot sy stem so that Mr. Pearson could pilot and simult aneously

attend to other thing s on the plane, if ne cessa ry . The passeng er compar

tment in Mr. Pearson’ s unpressurized airplane is loud and the noise can damag e hear ing. Passeng ers must wea r headse ts, or at least ear plugs, in order to protec t their hea ring and to hea

r and communicate with one another by intercom. Mr. Pea

rson must wear headphone s to communicate with air traffic c ontrollers. The he adsets ar e lar g e and adult-size. I n ad d i t i o n , the pilot and passeng ers must utiliz e an ox y g en hose with a nose piece that fits int o the nostrils when fly ing above a cer tain altitude. The infere nce is that someone must assure that the children wea

r h ea d s ets and the ox y g en appar atus and keep them on when the situation require s. Mr. Pearson and Mrs. Pearson had prac ticed allowing Sy dney to wea r the headse ts at home, but had not considere d the ox y g en appar atus, which appar ently cause d the child extreme ag itation when she

was require d to use it. Mr. Pearson testified that he had prac ticed fly ing into Gunnison while stay ing below the a ltitude ceiling a nd did not intend to ex cee d that level with the childre n.

26Appar ently , Mr. Pearson conce des that some restric tions on fly ing with the children

wo u l d be rea sonable. On the one hand, he saw no need for any restric tion, and he re q u es t ed t o fly Sy dney alone and unrestric ted. At the same time, he understood the need to have another adult

acc ompany him with Pey

ton until she was older. Whil e in his view no court restric tions are require d, he sug g ests that the cour

t’s initial ruling limiti ng flig ht c onditions until e ight y ear s of ag e—which in itself was an arbitra

ry ag e discussed at trial—clea rly and proper ly weig hed all of the evidenc e in favor of fairly limit ed restric tions. But Mr. Pearson contends that the court exceede d its discretion beca use the c onditions i t finally employ ed ar e excessive a nd lack a basis in rea son. Mr. Pearson arg

ues that the trial court rende red its decision based upon antag onism toward him and persona l bias toward private air trave l, rathe r than o n the children’ s best interest. He supports his position by point ing to the court’s oral comments from the bench—c omplaining that the judge chang ed her ruling sev er al times—and attributing bias and prejudice to her decision-making

.

Although the trial court’s dec ree speaks for itself, we will briefly addre ss Mr. Pearson’ s serious criticisms. At the conclusion of the evidenc e, the trial court initially ruled that Mr. Pearson could fly the children without restric tion, except that in an unpressurized plane he must be acc ompanied by another l i cense d pilot or responsible adult car eg iver until the child was eig ht. Even thoug h the trial judg e stated, “ I don’t persona lly much like private jets,” she rec og nized that this was an activity the parties had eng ag ed in while marrie d and put aside her views. Howeve r, the court emphasized that, espec ially with respe ct to the y oung er child, Mr. Pearson must be the pare nt, not the pilot.

27When the parties c ould not a g ree on the specific terms of the decr ee, the cour t held

a hear ing on the motion for entry of judgme nt. At that hear ing, t h er e wa s ex t ensi ve discussion and arg ument about the terms on which the children could fly

. Eac h side proposed lang uag e for the decr ee; Mrs. Pea

rson proposed the lang uag e that the c ourt ultimately adopted. At first the judge m ai ntained her orig inal ruling , even though private airplane trave l “wa sn’t [her] favor ite thing to do.” The court emphasized that the y o u n ger ch i l d could not fly without another a dult and ag ain di rec ted t hat M r. P ear son must be the pa rent, not pilot. W hen Mrs. Pearson’ s counsel reque sted an additional condition, Mr. Pearson inter rupted say

ing, “ I need to speak

. . . y ’all—eve ry

body ’s talking about things that, I apolog ize, y ou rea lly don’t understand.” The court stated, “Oka

y . . . [C ounsel], y ou shouldn’t ha ve let y our client speak.

. . . I ’m chang ing my mind. I ’m adopting the lang uag e provided to me by [Mrs. Pearson’ s counsel].” The trial court d i d n ot respond to Mr. Pearson or admonish him. Neve rtheless, Mr. Pearson char acte ri z es t h e trial court’s comments as ang ry , hostile, and twice descr ibes them as irrational, asking us to assume the same. When the hear ing resumed afte r a rec ess, Mr. Pearson ap o l o gi zed to the court. Wit hout responding , the judge announce d her final ruling

. She admitted that she had been strug g ling with what flig ht conditions wer e best for the children. After delibera ting, the court found that it was in the children’ s best interest to set conditions and to adopt the lang uag e provided by Mrs. Pearson’ s counsel. Mr. Pearson’ s co u n sel complained that the lang uag e proposed by Mrs. Pearson went bey ond ag e eig ht, and the court ruled, “I understand what their lang uag e is and we’ re adopting it here today .” Mr. Pea

rson re torted, “So the c hildren ca n’t fly .”

28Mr. Pearson attributes improper motive t o t h e trial court’s statements and

contends that these exchang es demonstrate that the court was not conce rned with the children’ s best interest but i n s tead acc uses the judge of basing her decision on her persona l bias ag ainst private airc raf

t tr avel and her “pique” ag ainst him. Mr. Pearson char acte rizes the court’s ruling as capr icious, unduly restric tive, unsup ported by any evidenc e or leg al theory , and complains that it violates the constitutional and leg al protec tions ag ainst curta ilment of trave l and visitation rig hts, lacks a connec tion to the children’ s welfa re, and is g rounded solely in what he char acte rizes as the court’s irrational and hostile response to him. Wit hout g ood cause for the conditions, Mr. Pearson claims, the cour

t acted a rbitrar ily and thus abused its discre tion. Although Mr. Pearson does not asser t a specific issue on appea l reque sting reve rsal based on the trial court’s bias and prejudic e, he does so indirectly in his arg ument. We note that judicial ruling s alone alm ost never constitute a valid basis for showing the trial court’s bias or impartiality

. J udicial rema rks during a trial that are critica l, disapproving , or even hostile to a party

o r co u n sel do not demonstrate bias, and expressions of impatience, annoy ance , or even ang er do not establish bias or partiality

. Liteky v. Un i t ed S t a t es , 510 U.S. 540, 555 (1994); Dow Chem. , 46 S.W .3d at 240. We decline to adopt Mr. Pe ar s o n ’s alleg ations. I n any event, our duty is to deter mine whether the rec ord contains evidenc e on which the trial court could rule as it did.

Wit h respe ct to the need for g ood cause , we find only three repor ted Texas case s that cite section 153.257 of the Texas Family Code conce rning a need for showing g ood ca u s e; o n l y

one of those is somewhat helpful. In re M. A

. S

. , 233 S.W .3d 915, 923 (Tex. App.—Dallas 2007, pet. denied) (re quirement for pare nt to g ive writt en noti ce of in t en t i o n t o t ake possession of child at airport not a restric tion on means of trave l; whether to fly was optional, not mandatory , there fore 29showi n g of g ood cause not require d). Mr. Pearson also cites to three case s from other states in

support of his position. These case s differ from the standard of revie w Texas appellate courts apply to trial-cour

t ruling s on the subject

. S ee Mo rd v. Peters , 571 So. 2d 981, 984 (Miss. 1990) (pilot fathe r could fly

child absent showing activity would be detr imental to child’s welfare or enda ng er life, a standard more stringe nt tha n best-intere st te st); DenHe eten v

. DenHe eten , 413 N.W.2d 739, 741 (Mich. 1987) (trial court prohibited fathe r from fly ing children privately ; appellate court revie wed evidenc e de no v o an d reve rsed beca use appellate court would have decide d case differ ently , contra

ry to Tex as ru l e) ; cf

. Siliquini v. K

egel- Siliquini , 2001 PA Super 312, 786 A.2d 275, 278 (2001) (re verse d trial court’s order allowing fathe r to fl y child and imposed restric tions beca use trial cour

t applied inhere nt-dang er standard, not best-intere st test, and appellate court ha d “g rave conce rns” a

bout child’s safe ty

during flig hts). We hold that the rec ord contains leg ally and fac tually sufficie nt evidenc e for the tr i al co u rt t o exercise its discretion and that Mr. Pearson has not shown that the court abused its discr etion in doing so. To the extent g ood cause is require d for the court to place conditions on Mr. Pearson fly ing his children with him in a non-pre ssurized, pr ivate airc raf t, the rec ord supports the trial cour

t’s finding of g ood cause

.
CONCLUSION The rec ord contains fourteen volumes of repor ter’s rec ord and exhibi ts. The trial court hear d extensive testimony from the parties and rela ted witnesses conce rning the issues of char acte rization of proper ty and terms of the children’ s air flig ht. We have revie wed the evidenc e,

30apply ing the corr ect standards of re v i ew . W e overr ule Mr. Pearson’ s complaints on appea l. We aff irm the trial cour

t’s decr ee.

Marily n Aboussie, J ustice Be fore Chief J ustice Rose, Jus tices B ourland a nd Aboussie* Affir med Filed: January

15, 2016

* Be fore Marily

n Aboussie, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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