### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

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Che r i D e nise Buc king ham , A ppe lla nt

v. William P aul B uckin gham , Appellee

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M E M O R

A N D U M O P I N I O N
This is a na

p p e a l f r o m a f in a l j u d g me n t o f

d iv o r c e in

w h ic h a ju r y f o u n d , an d the dis tr ic t c ourt

or de re d, that a

pp e lle e Willi a m P aul B uc kin g ham sh ou ld h a ve the e xclu siv e ri g ht t o de te rm ine the pr ima

ry re sid e nc e of

the c hil dr e n o f hi s ma

rr ia g e wi th a

pp e lla nt C he ri De nis e Buc kingha

m and that the g eog raphic location of the primary residenc e should be maintained in Tom Gre en County

wher e both pa

rents reside at the prese nt time. Mrs. Buc kingha m c halleng es the leg al
and fa c tua l su ff

ic ie nc y of the e vid e nc e to s up po rt

the jur y ’s fi nd ing s. We a ff

ir m th e jud g me nt.
P ROCEDURAL BACK GR OUND On J anuar

y 5, 2004, Mrs. Buc kingha m f iled an orig inal petition seeking dissoluti on of her marria g e to Mr. B ucking ham joined with a suit a ffe cting the pare nt-child relationship. I n the petition, Mrs. Bucking ham identifie d th e p a r ti e s ’ mi n o r

c h il d r e n—a ten- y ear -old daug hter, K.D ., andSe c tio n 1 05 .0 02 of the fa mil y c od e pr ov ide s in

pe rt ine nt p art : 1 (c ) I n a

jur y tr ia l: (1) a par ty is entitled to a verdict b y t h e j u ry and the c ourt may not contravene a

jury verdic t on the issues of:

2 a thre e- y ear-old son, L .A.—and state d that she believe d the par ties “may be able to rea ch an ag ree ment conce rning the conse rvatorship, possession, and suppor t of the chil d ren.” I f they wer e unable to re ach a

n ag ree ment, Mrs. Bucking ham re quested that the pa rties be a ppointed joint manag ing c onservators and that she be appointed as pr imary joint manag i n g conservator of the children. The parties wer e unable to ag ree which joint manag ing c onservator should have the exclusive right to dete rmine the primar y residenc e of the children and what the g eog raphic location of t h e primary

residenc e would be, a

nd a thre e-da

y jury trial was he ld beg inning on Oc tober 19, 2004. At the close of t h e ev i d en ce, the jury was c harg ed with two questions: (i) which joint manag ing c onservator should have the e x clusive rig ht to determine the primary residenc e of K.D. and L .A. and ( ii) whether that conser

vator should be pe rmitted to designate the primar y residenc e of the c hildren without reg ard to g eog raphic location or a s limi ted t o Tom Gre en C ounty . The jury fo un d in fa vo r o f M r. B uc kin g ham a s th e c on se rv a tor wh o s ho uld

have the e xclusi ve rig ht t o deter mine the childre n’s re sidence . The jury then deter

mined that the primary

residenc e o f the children should be ma intained in Tom Gre en County . I n its final decr ee of divorce , rende red on Dec ember

23, 2004, the district co u rt fo u n d i t i n the best intere st of the childre n to appoint the pa rt ie s a s jo int mana g ing c on se rv a tor s wi th Mr
. B uc kin g ham to have the e xclu siv e ri g ht t o d e sig nate t h e p r i m ar

y r e s i d e n c e o f

t h e c h i l dr e nw i t h i nT o m G r e e nC o u n t y. 1(A) the appointment of a sole manag ing c onservator; (B ) the a pp oin tme nt o f j oin t ma

na g ingc on se rv a tor s; (C) the appointment of a possessory

conser vator; (D) the deter

mination of which joint manag ing c onservator has the exclusive right to desig nate the pr imary residenc e of the child; (E ) the de te rm inatio n o f w he the r t o im po se a re str ic tio n on th e g e og ra ph ic are a in which a

joint manag ing c onservator may desi g nate the c hild’s primary residenc e; and (F ) if a re striction describe d by Parag raph ( E) i s im

p osed, the de termination of the g eog raphic are a within whi ch the joint manag ing c onservator must designate the child’s pr imary residenc e. . . . Tex. Fam. Code Ann. § 105.002 ( West S upp. 2005). B e c a us e the a pp e lla nt doe s not br ie f the iss ue of the e xten t of

the g e og ra

ph ic loc a tio n, it 2 is waived, a

nd we will not addre ss it. See Te x. R. A pp . P. 38 .1 ; Tre nh olm v . R atc lif f , 646 S.W .2d 927, 934 (Tex. 1983). 3 AN AL YSI S Mr s. B uc kin g ham c ha lle ng e s th e lega l and fa c tua l su ff

ic ie nc y of the e vid e nc e to sup p o rt the jury ’s finding s. She contends that the r ecor d is “absent of any thing that would have 2 b e e nd o n e o nt h e p art o f [ M r s . B u c k i n g h a m ] t h a tw o u l d a d v e r s e l y a f

f e c tt h e c h i l dr e n . ” S p e c i f

i c a l l y, she conte nds that there is no “d i rec t” evidenc e that she ha d a roma ntic relationship out side her
marr ia g e and

that “ su sp ic ion ” is i ns uf

fi c ie nt t o s up po rt

the jur y ’s fi nd ing s. I n e va luatin g the le g a l su ff ic ie nc y of the e vid e nc e to s up po rt a fi nd ing , w e mus t deter mine whether

the evidenc e as a

whol e rises to a

level that would ena

ble re asonable and fa irminded people to diffe r in the ir conclusions. City of Keller v. W ilson , 1 6 8 S. W. 3 d

8 0 2 , 8 2 2 ( T e x. 20 05 ); St. J

os e ph Ho sp . v . W

olf f , 94 S.W .3d 513, 519 (Tex. 2002)
. We sustain a no-evide nce point4

if a finding is not supported by “any thing more than a sc intill a of e vidence .” In re J .F .C. , 96 S.W .3d 256, 265 (Tex. 2002) (citing Formosa Plastics Corp. U.S.A. v. Presidio Eng’rs &Contractors, Inc. , 960 S.W .2d 41, 48 (Tex. 1998)). I n making this de termination, we must view the evidenc e in the light fa vorable to the verdic t, cre diting fa vorable evidenc e if re asonab l e j u rors could, and disreg arding c ontrary

evidenc e unless re asonable jurors could not. City of Keller , 168 S.W .3d at 82 7; In re J

.F .C. , 96 S.W .3d at 266. I f, af ter c onducting its lega l sufficienc y revie w of the r ecor d evidenc e, a c ourt deter

mines that no rea sonable fa ct finder could form a

firm belief

or convic tion that the ma tt er th a t mu st b e pr ov e n is tr ue , th e n th a t c ourt

mus t c on c lud e tha

t th e e vid e nc e is l e g a lly insufficient. In re J

.F .C. , 96 S.W .3d at 266. I n revie wing a fa ctual suff iciency challeng e, we consider a nd weigh al l o f t he evidenc e in support of and contra ry to the findi ng , and will set aside a finding only if it is so contrary to the overw h el m i n g weig ht of the evide nce a s to be clea rly wrongand manife stly

unjust. Id. In making this review, we are not a fact finder, and we do not substitut e our judgment for that of the jury , even if

a diffe rent a

nswer c ould be re ache d on the evidence. I t is well established that the jury
we ig hs the e vid e nc e , a sse sse s th e c re dib ili ty of wi tne sse s, and

re so lve s c on fl ic ts a

nd inc on sis te nc ie s. See M cGalliard v. Kuhlmann , 722 S.W .2d 694, 697 (Tex. 1986). The pa rties ag ree that in determining questions of conser vatorship and a cce ss to the children that the best interest of the child is the primary co n s ideration. See Tex. Fam. Code Ann. § 15 3. 00 2 (We st 20 02 ). An d the y a g re e that the jur y wa s ta sk e d w ithde te rm ini ngthe be st i nte re st of the c hild with respe ct t o which parent shoul d have the exclusive right to dete rmine the primar y
re sid e nc e of

the c hil dr e n and the g e og ra ph ic lim its of that re sid e nc e . We tur n to the e vid e nc e in t

his
c a s e o nt h e i s s u e s p r e s e n t e d t o t h e j u r y.5 Mrs. Buc kingha

m first met Mr. Buc kingha m while she wa s out dancingwith friends in D el Rio. They dated for one and one-ha lf y ear s befor e they marrie d. Mrs. Buc kingha m had bee n marrie d on three prior occ asions and had a daug hter, K.D ., from a pr ior marr iag e. Mr. B ucking ham had bee n marrie d once before when he was twe nty -four -y ear s-old but had no childre n. When they
marr ie d in

19 97 , M r. B uc kin g ham a do pte d K .D ., and he is the on ly fathe r K .D . k

no ws . T he c ou

ple the n mo ve d to Chr ist ov a l in To m G re e n Co un ty , and L .A. wa s b or n in No ve mbe r o f 2 00 0. B oth g ran d mo th e r s li v e in th e c o u n ty
. T h e B u c k in g h a ms w e r e b o th in th e ir e ar ly f o rti e s a t th e time of tr ia l. After

L .A.’s birth, Mrs. Buc kingha m, who had ea

rned a Ba chelor of Scienc e deg ree in animal scienc e and had worke d outside the home, beca me a “stay at home mom,” taking car e of the childre n and the severa l horses and other animals on the 250-a cre proper ty they had purc hased in 1 99 8. Mr . B uc kin g ham te sti fi e d th a t he is a c lin ic a l so c ia l w or

ke r. Whe n h e and

his family
mov e d to Chr ist ov a l, he wa s emp loy e d as a fa mil y the ra pis t w iththe Te xas D e pa

rtme nt o f H e a lth in San Ang elo and r an the Children’ s Special Health Care N eeds a nd Medica lly

Depe ndent Children prog ram for

thirteen c ounties in the Concho Valley are a. He also taug ht psy cholog y course s in the eveningat a c olleg e on the g rounds of Goodf ellow Air F orce Ba se in San Ang elo. Both Mr. a

nd Mrs. Buc kingha

m had g one through bankruptc ies. Mrs. Buc kingha m te sti fi e d th a t sh e ha d und e rg on e a ba nk ru ptc y a s a con se qu e nc e of

he r l a st hus ba

nd le a vin g he r w ith debt. As a r esult, the Buc kingha ms maintained separ ate bank ac counts. Mr. B ucking ham paid the bills and supported the family . Mr. B ucking ham put Mrs. Buc kingha m on a budg et and limited her expenditures for g as to $25 a we ek. S h e t es t i fi ed that she had “no idea ” how much mone y her6

husband m akes. The couple had numerous arguments about money . Mrs. Buc kingha m testified that her husba nd beca me controlling and belittled her in front of other

people. Th e c ou ple a lso dis a g re e d a

bo ut d isc ipl ini ngand

e duc a tin g the c hil dr e n. Mr s. Buc kingha

m believed that Mr. Buc kingha m was har sh with K.D. and e x hibited a bias in favor of the
so n bo rn of the ir marr ia g e . Mr
. B uc kin g ham be lie ve d that Mr s. B uc kin g ham ha d K.D . wr ong ly dia g no se d w ith a tte nti on de fi c it dis or de r and dis a g re e d that sh e ne e de d me dic a tio n. At tr ia l, M rs . Buc kingha

m te s ti f ie d tha t her da ug hter ha d problems at school, that she w as diag nosed with attention de fi c it d iso rd e r, a nd

tha t sh e imp ro ve d with

me dic a tio n. She ha d d isc us se d h e r d a ug hte r’ s p ro ble ms with a pediatr ician, filled out a que stionnaire for him , an d submitt ed pape rwork f rom K.D.’s teac hers. Mr. B ucking ham was c oncer ned that K.D. ha d not been e valuated in a clinical setting. Mrs. Buc kingha

m a dduced testimony from others, including K.D.’s doctor and a teac her , t h at t he child improved af

ter diag nosis a

nd treatment by

medication. Mrs. B ucking ham testified conc erning her involveme nt with the children and their activiti es and Mr. Bucking ham’s “c ontrolling” behavior
.

K.D.’s pr incipal t estified to some “be havior incide nts” in which K.D. e x hibited frus tr a ti o nan d

w o u ld “ h it o r s h o v e o r y e ll in c la s s , th o s e k in d s o f

th in g s ” th a t n o lo n g e r

o c c u r r ed afte r she be g an re ceivingmedication. Two othe r tea cher s testified to their interact i o n s wi th K.D. and her pare nts and that K.D. had become more focused and appea red to thrive wit h the medication. K.D.’s pe diatrician, D r. Wehner, te stified to the proce ss by which he obta ined eva luation forms from K.D.’s tea cher s and dete rmined that she possibly had attention def

icit disorder: She was having trouble in school; she also was having some difficulty g etting w ork do ne a t ho me , an d t h i s h a d b e e n an o n g o i n g p r o b l e m . A n d s o t h e a p p r o a c h i s to c ome and se e me to e va luate to se e if the re ’s so me thi ng mor e that c ou ld be do ne to he lp h e r s uc c e e d in

the c la ssr oo m.7

He explained that the mother and teac hers c ompleted the standa rdized form conta ining a

series of questions to match the s y mptoms with the criteria of the di sorder . Fr om the forms, he de termined that her be havior wa s co n s i stent with the disorder. Af ter a phy sical examination, he made a diag nosi s of attention def icit disorder a

nd rec ommended “a

trial of medica

tion [ to] improve her ability in the classroom.” He testified that Mrs. Buc kingha m had been cooperative and that he had
no rea son t o “d o u b t ” h er “ role” with K.D. He a lso had a tele phone conve rsation with Mr. B uc kin g ham w ho ha d ju st b e c ome awa re of the a sse ssm e nt a

nd wa nte d th e docto r to e xha

us t a ll alternatives befor e putting the child on medications.

Th e ma in s ourc e of

c on fl ic t be tw e e n th e B uc ki ngham s, ho we ve r, wa s K e nn e th De Z a va la , w ho Mr s. B uc kin g ham id e nti fi e d a s a “ve ry g oo d fr ie nd ” sh e me t whe n she bo ug ht s ome hay for he r horse s from him. Their fr iendshi p d ev el o p ed and she a g ree d to help him open a fe ed sto re in C hr ist ov a l and to mana g e the sto re wh e n it op e ne d. She fe lt s he ha d f ound an o pp or tun ity for wor k wher e her

children c ould be pre sent. B oth Mr s. B uc kin g ham and

De Z a va la te sti fi e d tha t th e ir re la tio ns hip wa s a

platon ic friendship a

nd was not a r omantic re lationship. DeZ avala first ca lled Mrs. Buc kingha m to see if the horses we re e ating the hay he sold her. She testified that he ca lled ag ain to inquire about how she was doing . Mr. B ucking ham first lea rned of the co n t ac t betwee n DeZ avala and his wife w hen he
rec eived a

call fr om a woman with whom De Zav al a was living inquiring a bout who at the B uc kin g ham ho me mig ht h a ve ma de a $6 0 c oll e c t ca ll to her ho us e . Sho rt ly the re a ft e r, De Z a va la moved out o f

th e w o ma

n ’ s h o u s e . H e te s ti f

ie d th a t h e b o u g h t a

tr a v e l t r a il e r an d p u t i t o nn e arby L ake N asworthy

for a couple of wee ks. Mrs. Buc kingha m testified t hat s he vis ited him there seve ral times without her children to discuss “a business opportunity .” Appr ox imately two day s after8

DeZ avala lear ned fr om Mrs. Buc kingha m that she had fi l ed for divorc e and the parties we re
s e p ar a t e d , D e Z a v a l a m o v e d h i s t r a i l e r o n t o t h e B u c k i n g h a m p r o p e rt y. D u r i n g t h e m o n t h o f J an u a r y, he wa s unemploy ed. There afte r, he obtained employ ment, and he a

nd Mrs. Buc kingha

m worked on pl ans f or the fe e d s tor e . O n c ro ss- e xami natio n, Mr s. B uc kin g ham a c kn ow le dg e d th a t D e Z a va la often ate meals with her

and the c hildren: Q: And, as a

matter of f

act, Mr. D eZav al a wo u l d just waltz into y our kitchen and be g in prepa

ring food and c ook, wouldn’t he? A: He knoc ked bef

ore he came in. Q: Ok ay . So no w the n, Mr
. De Z a va la is i n y our h ome , ma kin g him se lf at home, eating your food, c ooking f ood and ea

ting with the children in the absenc e of the ir fathe r? A: I mak e e ve ry

bo dy fe e l c omf

or ta ble wh e n th e y

c ome ov e r t o my house. They

can c ome in. Itell them: My house is y our house. You g et whate ver you need. I show them wher e the g lasses ar e, wher e e ve ry thi ng is. Ye ah, I tr

y to make e ve ry

bo dy fe e l c omf

or ta ble in my home. Q: Do y ou

thi nk that y our v e ry

ow n c hil dr e n fe lt c omf

or ta ble wi th t his strang e man in the house that was all of a sudden taking the place of t h e i r d a d dy? A: There has alwa

y s been pe ople in the house. Q: No, ma’a

m, that wasn’t my

question. Isaid, do y our childre n fee l comforta ble? A: Yes, they

did.
Mrs. Buc kingha

m te stified that DeZ avala attended community events with he r, includi n g h er daug hter’s soc cer

g ames, a

nd that s h e i n t ro d u ce d him at these eve nts, all for the purpose of pr omo tin g the fe e d sto re. DeZ a va la e ve ntu a lly

mov e d h is tra ile r f

ro m th e B uc kin g ham pr op e rt y9

be c a us e of goss ip. Af

te r h e mov e d h is tra ile r, he c on tin ue d to sp e nd

the nig ht at th e ho us e . M rs . Buc kingha

m testified: Okay . He wor

ks at AEP, four ten’s, sometimes five ten’s a day , and I ’m doing all the fo o t wo rkfo r t h e f

ee d s t o re . An d

wh en h e c o m es i ni n t h e ev en i n g, Id i s cu s s t h i n gs with him, what Idid that day , who I contac ted, what kind of g oods I ’m g oing to g et in t he fe e d s tor e ; ju st c e rt a in t hin g s th a t ha

ve c ome up wi th t

he bu sin e ss, and

we ta lk a bo ut i t. I f I

wa s c oo kin g su

pp e r, he wo uld

e a t w ithus ; and

so me tim e s h e wo uld b ri n g stuff and w e’d c ook supper a nd we’ d talk about it, help K.D. with her ho me wo rk . A nd he wo uld sit do wn and watc h T V w a iti ngfo r m e to p ut t he kid s to bed and he would fall aslee p in the chair
. Prior to the Buc kingha

ms’ separ ation, the childre n regularly spent time with Mr. Buc kingha

m’s mother, Carme n L ewis. L .A. would stay with he r two day s a we ek. Dur ing the ten months of separation, L .A. s aw Mrs. L ewis onl y five ti mes, and Mrs. Buc kingha m acknowle dg ed that sh e ha d in te rf

e re d with the re la tio ns hip the c hil dr e n h a d w iththe ir pate rn a l g ra

ndmot he r. Mr s. B uc kin g ham c omp la ine d that the c hil dr e n be have d dif fe re ntl y wh e n the y re tur

ne d fr om v isi tin g the ir g randmother : “If they

made the tr ansition easier coming back, the re w ould not be a proble m.” During their sepa

ration, Mrs. B ucking ham told K.D. that she wa s adopted a nd that Mr. B ucking ham was not her

rea l father
. Fr om J anuar

y 2004 until October 18, 2004, the time of tr ial, Mrs. Buc kingha m had worke d for De Z avala

in planning the fee d store but ha d not e arne d any wag es. She testified that she expected to re ceive a sala

ry of $1,000 per month whe n the store opene d. She also cha rg ed items on her c redit ca

rd for the bus iness “to bui ld my cre dit up.” DeZ avala

would pay

off the a mount owed
eac h month. She testified that she owes “ probably in the thousands,” b u t co u l d n o t rec all the
a mou nt.10 Mrs. Buc kingha

m had neve r discussed divorc e with Mr. B u ck i n g ham bef ore she moved out. Mrs. Buc kingha m testified that she dec ided in Aug ust or Septem b er 2 0 0 3 t hat she wanted a divorce and discussed it with her mother and var ious other people: “ Iwas ve ry unhappy ho w he tr e a te d me and

ho w w e ha

nd le d th ing s, or

ho w h e wa

nte d me to h and le thi ng s w iththe kid s; that Ihad no say -so in h o w things w ere to be done.” Although the y did not discuss divorce, she testified t hat s he had told her husband she was “unhappy , that I didn’t ag ree with the way that he wa s
wa nti ngto d o th ing s w iththe c hil dr e n. ” Mr . B uc kin g ham te sti fi e d:
Ic a me ho me sic k f

ro m wo rk Mo nd ay , Janu ary 5th , and he r t ru c k w a s b a c ke d u

p to the porch and she w as putting thing s in it. That was my first indication. And then when I walked in, she said she wa s leaving . Iasked he r why she wa s leaving . She sa id sh e wa s ti re d o f i t and did n’ t w ant t his any mor e and wa s g e tti nghe r s tuf

f o ut. Iasked he r about the kids a nd said: Why don’t y ou stay here and I ’ll move out for a littl e while a

nd g ive things time to cool off . And she said, how c an I say , expletives a bo ut n ot w anti ngthi s p la c e or to b e the re , a

nd so —s he wa s le a vin g and sh e le ft
. She se rv e d h im w ithdiv or c e pa pers th at aft e rn oo n. He mov e d in wi th h is m oth e r s o h e c ou ld continue to make pa

y ments to suppor

t the family , and Mrs. Buc kingha m c ould r emain at home. He
rea liz ed tha t th e s it

u a ti o n w a s n o t im

p r o v in g w h e n h e r e tu

r n e d h o me to p ic k u

p h is ma il , and DeZ avala ’s trailer

was be hind the house. He was a lso disturbed that Mrs. Buc kingha m ha d told K.D. that she wa s adopted: “It’s not something that we had wa nted to d o b ehind my

back.” He wa s
conce rned that the disclosure ha d occur red w hile they wer e sepa

rate d and De Z avala

had ar rived on the sce ne. Mrs. B ucking ham also t ook the childre n to counseling without discussing it with Mr. Buc kingha

m. He testified, “ Ifee l like she’s purpose ly trying to ke ep me awa

y from knowingwhat is goingon with the children.”11 At tr ia l, Mr s. B uc kin g ham ac kn ow le dg e d th a t Mr . B uc kin g ham ha d v isi ta tio n w ith the c hil dr e n a

nd tha t he ma de a ll the vis its . B ut s he e xpre sse d c on c e rn that th e c hil dr e n to ok

so me time after their visits with t heir father to re turn to their usual beha viors. L .A. was not as friendly and
ou tg oin g and

his sp e e c h was no t as c le ar: “ He wh ine s a lot mor e wh e n h e c ome s b a c k. ” Mr s. Buc kingha

m testified t hat s he wanted t he right t o deter mine the children’s residenc e because she had been the ir primary

car etake r: “I

make sure they

g et t o wher e they need to g o and pick them up. Ig et them involved in things that I know ar e g ood for them.” She said, “The y ’re ever y thing to me.” Mrs. Buc kingha

m testified that she had cooked f or the c hildren at the f

eed store when she wa s working and that her work did not interfe re w ith her ca re f or the c hildren:
Ihave be en with [ L .A.] all day long. [ K.D.] g ets off the school bus there at the fee d store. She’s done her home work. I ’ve sat down and helped her with her homew ork at the fe ed store. We ha

ve her a littl e table set up wher e she knows she comes in, she e mpt ie s o ut h e r b oo k b a g , I g o o ve r h e r hom ewo rk w ithhe r, Ig e t he r s tart e d o n it
. [ L .A.] tries to play

with her and, y ou know, we—I distract him. Him and I

g o and do things so she c an do her homework. And my

kids are not—they

don’t want for any thing. I make sure that ever

y thing they need to do is done. She explained that if the children a re hung ry at night, “I ’ll fix them something.” The c hildren then g o to bed knowing DeZ avala is at the house. Mrs. B ucking ham testified:
Idon’t have a proble m with him s taying there. My kids like him. When they g et up in the morning , if he’s there, a lot of times he’s up; he’s g ot to go to wor k. And they like [DeZ avala ] and they

don’t look at hi m as a strang er. There is a lot of––there ’s not very many people they do look at as strang ers when i t comes to the people that come in the f

eed store and the pe ople that––He pla y s with them all the time.
Mr. B ucking ham testified that he ha d alway s paid the bills and that they lived on a budg et, but that Mrs. Buc kingha m “controlled mos t o f the other situations.” He ag ree d that he12

disputed that K.D. nee ded medication and that they had disag ree d about discipline of the c hildren. Mr. B ucking ham was conce rned that L .A. had not be en “potty trained” and that he often had a diape r
ra sh
. He te sti fi e d tha t his exte nd e d famil y wa s ava ila ble to ta ke c are of the c hil dr e n a lon g wi th h im
and that he wo uld

e nc oura g e c on ta c t w ithMr s. B uc kin g ham:
L ike I say , with their m other or he r family , I ’m not g oing to ke ep the kids aw ay from the ir f a mil y . Y ou

kn ow , a ll s he ’s g ot t o d o is a sk and I ’l l g ive he r e xtra

tim e wi th them. That ’s n o t an issue. My conce rn is making sure that the kids a re in a consistent environment so they can be that way

all the time. I f she wa

nts ex tra time, that’s g reat. But the proble m Ihave is that all the time rig ht now seems like it’s not sp e nt w iththe c hil dr e n. I t’ s sp e nt w ithle a vin g the m so me wh e re or takin g the m to the fe ed store w hile they ’re working or doing things with Mr. DeZ avala
. And that’s my conce rn.
Mr . B uc kin g ham tes tif

ie d tha t his ch ild

re n wou ld be his pr ior ity
. He dis c us se d h is e xten de d f a mil y in the are a:
I ’v e g ot a n aun t tha t li ve s r ig ht t

he re a c ro ss t

he str e e t, l ike on

the same blo c k in Christoval from t h e s ch o ol. My mom is here. She’s r etired a lso. I ’ve g ot another aunt that is outside that has alre ady ag ree d to help o u t
. I ’v e got cousins. I ’ve g ot numerous people that have a lway s said if Iever neede d to drop th e kids off or emer g encie s c a me u

p , th a t t h e y w o u ld b e th e r e . So I ’ v e g o t a

lo t o f s u p p o rt f rom fa mil y and fr ie nd s.
Mr. B uckingham’s mother , Mrs. L ewis, and his aunt testified to their close re lationship with Mr. Buc k in g h a m a

n d h is c h il dr e n . M r s . L e w is te s ti f ie d th a t b e f o r e th e s e p ar a ti o ns h e s aw her g randc hildren we ekly . She was a school teac her f

or twenty -two y ear s befor e she retired. She often kept L .A. two day s a we ek, and K .D. often stay ed with Mrs. B ucking ham’s mother. She testified that her son is the be st father “I ’ve e ver know n,” is attentive to his children, a nd a loving fathe r. She13

explained that L .A. cr ies when he has to leave his father
. When a sked how the children act a round Mr. B ucking ham, she testified:
Iwi shy ou

c ou ld s e e the m. I wi sh we c ou ld br ing the m in and jus t le t y ou se e the m. His litt le boy

espec ially

is just—has gotten v er y cl i n g y with him now and he cr ies to—that he won’t have to g o home, and when—when he has to g o home. When he g ets to the house, he r

uns to his daddy

and just holds on to him . He won’t let him out of his sig ht.
She re c ounte d th e va

ri ou s a c tivit ies the c hil dr e n p art ic ipate in w iththe ir fathe r, inc lud ingsp or

ts
a c tiv iti e s a

nd pic nic s. Mr . B uc kin g ham do e s n ot s oc ia lize wi th his a du lt f ri e nd s w he n h e ha s h is
c hil dr e n w ithhim . M rs . L e wi s te sti fi e d th a t sh e lov e d h e r g randch il dren and ha d mo ve d to Christoval to be close to the m. Mr. Buc kingha m’s aunt also testified that he was an exemplary fathe r and “w ithout a s h ad ow of a doubt in my

mind, with all my

being , Iknow that [he] would provide and take car e of the se childre n.”

On e of Mr s. B uc kin g ham’ s f

ri e nd s, wh o h a d k

no wn he r f or le ss t ha n a y e ar a nd did not know her husba

nd, testified on her

behalf that the childre n are g ener ally happy , that they play at the fe ed store, an d t h at t hey are car ed for

by Mrs. Buc kingha

m. She rec alled an e x chang e of the children be tween the Buc kingha ms in whic h L .A. was aslee p and then beg an cr y ing a nd would not immediately

g o to Mrs. Buc kingha

m when she r eac hed for

him
. S he had ne ver obse rved a ny be havio r b e tw e e n M rs . B uc kin g ham and De Z a va la

to i nd ic a te that the y we re any thi ng mor e tha

n ju st fr ie nd s and

bu sin e ss a sso c ia te s. Catherine Stone, a

friend of

Mrs. Buc kingha

m who had b ee n a s t u d ent of Mr. Buc kingha

m, testified on behalf of Mr. B ucking ham: “I was a student of [Mr. Bucking ham]’s, but14

Iwas more of fr iends with [M rs. B ucking ham].” They beca me frie nds when Mrs. B ucking ham let Stone’s son ride horses on the proper ty
. Stone te stified that she had moved awa y but r eturne d to San Ang e lo in

F e b r u ar y 2 0 0 4 f o r h e r o w nd iv o r c e p r o c e e d in g s . Sh e a ls o me t D e Z a v a la a t t h e h o use. Sto ne ha d a

rr ive d at the ho us e wh e n Mrs . B uc kin g ham dr ov e up wi th D e Z a va la and int ro du c e d h im to Stone as her f

riend. S he learned of the B ucking hams’ divorc e fr om Mrs. Buc kingha m when she sta y e d w ithMr s. B uc kin g ham. Wh e n St on e a sk e d a bo ut the tr ail er, Mr s. B uc kin g ham to ld h e r i t belong ed to D eZ avala and that he lived in it: “She said that he ha d parke d the trailer there and he w as sta y ingthe re on

the pr op e rt

y .” Th a t e ve nin g , St on e wa s su pp os e d to hav e di nn e r w ithMr s. Buc kingha

m and the childre n and spend the night at the house. Mr s. Buc kingha m told S tone that DeZ avala usually cooked dinner and they left him c ooking in the kitchen. As t h e evening prog resse d, it became clea r that De Z avala wa s fa miliar with and “at home” in the house. H e wa s fa mil iar w ith the kit c he n, he c or re c te d K.D . at din ne r, and he he lpe d L .A . c ut u

p h is f oo d a nd e a t it
. Sto ne te sti fi e d th a t, a ft e r d inn e r, sh e ha d b e c ome tir e d a nd un c omf or ta ble . Sh e tol d M rs . Buc kingha

m that she would drive into San Ang elo and g et a r oom. She testified:
Ijust felt uncomfortable with the whole situation. [DeZ avala ] kind of rubbed me the wrong way and I

just felt incredibly

uncomforta

ble just in the situation of him being there and the kids a

nd knowing both [Mr. Buc kingha m] and [Mrs. Buc kingha

m] and being in their home whe n they wer e t o g ether

and see ing stra

ng e fur niture and, you kn ow , w a tc hin g him

c or re c t the childr e n a

nd jus t do ingdis he s. Ijus t f e lt u n c o m f o rt a b l e . S o m e t h i n g d i dn ’ ts e e m r i g h t
. H e w a s a p e r s o nt h a tm a d e me u n c o m f o rt a b l e an d I j u s td i dn ’ tkn o w w h a t

t o s ay— w an tt o s t ay.
DeZ avala and Mrs. Buc kingha

m a ppear ed to be “ver

y comforta

ble with e ach other.” They continued to drink alcohol af

ter dinner as t hey had that afternoon whe n they wer e driving Stone around town. At least one of the childre n was in the truc k when they wer e driving and drinking . Stone rec alled15

that D e Z a va la

did no t app e ar t o “ be in a

ny hurr y to g e t out” to h is tra ile r a

nd “ the re wa s so me sma ll ta lk a bo ut K .D . w ante d to sta

y in the tr a ile r” wh e n Sto ne de c ide d to de pa rt fo r S an A ng e lo. She a lso
rec ounted that it was a school night and, even though she left at 10 or 11p.m., the childre n wer e not y et in bed. She testified that “it appea red to me that [DeZ avala ] wa s staying there ” and that it was “not mere ly a business arr ang ement betwe en the two of them,” but something more wa s g oing on be tw e e n th e m. Stone then testified i n response to questioning that Mr. B ucking ham took better c are of t he phy sical needs of t he children and was more comfortable in the role of a parent a nd car e g iver than Mrs. B ucking ham. She believe d that he treated the childre n equally . She testified that in her opinion Mr. Buc kingha

m would be t h e better provider of the c hildren’s phy sical nee ds and moral g uidance . She testified:
Ba sed on my

interac tion with both of them and seeingt he wa y they wer e with the kid s and dif fe re nt t hin g s th e y

have going on , it

jus t se e ms t o me that [Mr s. Buc kingha

m] seems to be ve ry

concer n ed with starting up a new business and she g oes out of town a lot. Up until the time I stopped talking to her, she w as g oing out a lot wi th [ DeZaval a] , dif

fe re nt p la c e s p ic kin g thi s u p a nd do ingthat. S he jus t do e sn ’t se e m to have a s mu c h ti me to g ive to the c hil dr e n. Chi ldr e n n e e d c on tin uit y and they need de finite things. And somebody bouncing in a nd out of their lives and dropping them off at car eg ivers on what appea rs to be a whim a

nd to pick up hay

or whatnot just doesn’t seem to be pr oper e nvironment for c hildren. Stone expl ained that shortly afte r her Fe bruar y visit she and Mrs. Buc kingha m stoppe d talking to one another
. On this recor d, we c onclude ther e is sufficie nt competent evide nce to support the jur y finding s that Mr. Buc kingha m should have the exclusive r ight to dete rmine the primar y residenc e16

of the c hildren and that the district court did not err in desig nating him as t he conservator with the rig ht to determine re sidence . We ma y not substitute our judgme nt f or that of the jury wher e it is t he province of the jury

to weig h the evidence, asse ss the cre dibilit y of witnesses, a

nd resolve a

ny conflicts and inc onsistencies. Se e Mc Ga lli ar d , 722 S.W .2d at 697. Having revie wed the evidenc e under the appropr iate standa rds, and in lig ht of the ample evidenc e that Mr. Buc kingha m is a loving fathe r on whom his children c an depe nd for their phy sical and mora l needs, we hold that the evidenc e is both leg ally and fac tually sufficie nt to support the jury ’s finding that Mr. B ucking ham sh ou ld h a ve the e xclu siv e ri g ht t o d e te rm ine the pr ima ry re side nce of the c hil dr e n. We o ve rr ule
a pp e lla nt’ s is su e s.
CO NC LU SION Havingoverr

uled appe llant’s issues, we c onclude that the evidence is leg ally and fa c tua lly su ff ic ie nt, and

we a ff ir m th e jud g me nt o f t

he dis tr ic t c ourt
.

___ _______________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pemberton Affir med Filed: September

8, 2006