NO. 07-01-0294-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 13, 2002

______________________________
IN THE INTEREST O F C.R.O. AN D D.J.O., M INOR CHILD REN

_________________________________ FROM THE 3 87TH DI STRICT COURT OF FO RT BEND CO UNTY; NO. 114,931; HON ORABLE ROBERT J . KERN, JU DGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS , JJ. Appellant Jenni fer Lee Hylton appeals the trial cour t’s order modi fying the parentchild relationshi p by

restrict ing the minor

child ren’ s prim ary res iden ce to Fort B end Coun ty, Texas or contiguous counties of T exas, as long as appellee W illiam T. O’Brien resides in FortBend County or its conti guous counties . Presenting seven iss ues, Hyl ton questions whether: ( 1) the trial court abused i ts discreti on in imposing a domicile r estriction on the children’s primaryresidence to the Fort Bend Coun ty area; ( 2) O’Brien presented sufficient evidence upon which the trial court could ex ercise its discretion ; (3) the trial cour t abused1 After t he divorc e, Hylton and her husband had t wo daughter

s, half sister

s to Hylton’s sons. 2 its discr etion in restri cting the c hildren’s r esidence to For

t Bend County

or contig uous counties as long as O’Brien res ides in that ar ea; (4) the trial cour

t’s order i nfringes on her constitutional right to travel and to equal protection of the law; (5) the evidence is legally and fact ually suf

ficient to suppor

t findings of fact 18, 23, and 24; (6) she is entit led to abatementof the appe al un til the cour t fulfills its

duty to make complete and meaningful findin gs of fac t ; and (7) the trial court erred in failing to award her attorney’s fees. Concluding that Hyl ton has not establ ished a clear abuse of discret ion by the t rial court , based u pon the ratio nale ex press ed here in, we affirm. Hylton and O’Brien w

ere divor

ced on May 5, 1997, in Georgia. A t the time of divorce, the parties ha d two sons, C.R.O., w ho was seven, and D.J.O, who was almost four. 1 Child cus tody and other issues were resolved by settl ement agreement. P ursuant to the Georgi a decree, the par ties wer e awarded j ointlegal cust ody, with Hy lton having the right to primaryphysical custody. Soon after the divorce, Hy lton remarri ed and moved wi th the children to Fort Ben d C ounty, Texas . Three months ther eafter O’Brien moved to Melbourne, Fl orida for an employ ment opportunity as a health act uary. Hylton’s husband, who previously worked for Continental Air lin es in Houston for
seven years, resigned his position and accepted new employment with Hawaiian Air for a substantial pay incr

ease. On July

18, 2000, Hylt on notified O’Br ien by e-mai l of her3

husband’s job offer and indica ted that if he accepted the po sition, they would be r

elocating to Hawaii in September. O n August 15, 2000 , O’Brien fil ed a motion to modify the parentchild relationshi p alleging that the order had becom e unwo rkable or i nappropriate under existing circumstances and requesting that the cou rt restrictthe domicile of the c hildren to Fort Bend Count

y, Texas. O’Brien also sought and was g ranted a temporar y restr aining order preventing , among other th ings, Hy lto n from removing the children beyond the court’s jurisdict ion. On August 20, 2000 , Hylt on’s husband moved to Hawai i to begin h is new employment

and she a nd he r fou r chil dren rema ined in For t Ben d Cou nty. On September 1, 2000, in response to O’Brien’s mot ion, Hylton filed her answer and counter-p et ition requesting an increase i n child suppor t. In Nov ember 2000, O’Brien rented an apartment in the Fort Bend County area and began more frequent vi sitation w ith his sons . O’Brien, however, did n ot le ave hi s emp loym e nt in Flori da until the end of February 20 01. After several hearings o n temporary orders, on M arch 15, 2001, the trial court sig ned its order which, relevant to this appeal, restricts the children ’s domicileto Fort Bend County and t he contiguouscounties so l ong as O’Br ien continues to reside in t hat area and increases t he amount of child suppor t.
We fir st address Hylton’ s sixth issue by w hich she req uests that the appea l be
a bated and the cause remand ed to the trial court to make and file more “co mplete an d meaningful” f indings of fact. She asse rts that she has suff ered harm by the trial court ’ s refusal to make and file addition al findings of fact as requested because it has pr evented her from p r operly pr

esenting her

appeal. After the trial cour t filed its findi ngs of fact and4

conclusionsof

law, Hy lton filed objec

tions thereto a nd a request for additional findi ngs of fact and conclusions of law as follows:
the court should state the specific reas ons for its finding that it is in the best inte rest of t he ch ildre n to re stric t the ir dom icile to Fo rt Be nd Co unty; the court should state the reas ons the standard pos session order for parents residing more than 100 miles apart would not p rovide appr opriate vi sitation for William T. O’Brien were Jennifer Lee H ylton all owed to rel ocate; and the court should find that the attor ney’s fees i ncurred by Jennifer Lee Hy lton are reasonable.
Followi ng a proper req uest and reminde r, it is mandatory for a trial court to make and file findings of fact and conclusion s of law. Cherne Indust ries, Inc. v. Maga llanes, 763 S.W.2d 768, 771 (Tex. 1989). The failure to respond w here all req uests have bee n made is presumed harmf ul, unless the record affirmativ ely show s no injury

. Id ; see also Tenery
v. Tenery, 932 S. W.2d 29, 30 (Tex. 1996). The appropriate question in determining harm is whether a party will be forced to gues s the reason or reasons that t he trial cour t ruled against him. City

of Los Fresnos v . Gonzalez , 830 S .W.2d 627, 629 (Tex.App.–C orpus Christi 1 992, no wri t). Hylto n contends that despite her request for add itional findings, the trial court did notaddress what facts formed the basis of its decisi on that a domicil e restrict ion would be in the best int erest of the children. She argues tha t the trial court’s refusal to make additional findin gs has placed her at a disadvantag e in challeng ing the domic ile restr iction
on a p p e a l

. We disagree. By Finding of Fact 23, which is specificall y challeng ed by Hy lton5

as not being sup ported by legally and factuallysufficient evi dence, the tria l court orde red
a domicile re striction “based on the quali ty of the chil dren’s rel ationship w ith their father.” As Hylton has c hall enge d thi s fin ding, she h as no t sho wn harm or that s he was prevented from properlypresenting her complaint on appeal. Thus, w e decline to abate the appeal and remand the cause to the trial court for further findings. Is sue six i s overru led. Next, we continue our a nalys is by se ttin g for th th e app ropr iate stan dard of re view. Atrial cour

t’s modificatio n order w ill not be di sturbed on ap peal unle ss the complain ing party establishes a clear abuse of di scretion. G illespie v . Gillespi e, 644 S.W.2d 449, 451 (Tex. 1982). The test for abuse of discret ion is w hether the tri al court acte d without refere nce to an y guidi ng rules an d principle s, or whe ther it acted arbitrari ly and
unreason ably

. Downe r v. Aqu ama rine Oper ator s, In c. 70 1 S.W .2d 2 38, 2 41-4 2 (Te x. 1985). The fact that a tri al court may decide a matter within i ts discreti on in a different
manner than an ap pell ate court doesnot d emons tra te th at an abus e of discr etion has occurred. Id. A trial courtis in the bes t position to observe the demeanor and personal ities of the witness es that cannot be evaluated from a cold reading of the re cord . W arch ol v. W archol, 853 S.W.2d 165, 169 (Tex.App.–Beaumont 1993 , no wri t). Th us, as long as some evidence of a s ubstantive a nd probativ e character ex ists to support the trial court’s order, no abuse of discr etion has occurred. Valdez v . Valdez, 930 S.W.2d 725, 731 (Tex.App.–Hous ton [1st Dis t.] 1996, no w rit).6

The abuse of discret ion standard in a fami ly law case over laps the tradi tional sufficiency standard of rev iew. See Crawford v . Ho pe, 898 S.W.2d 937, 940 (Tex.App.–Amarillo 1995, wri t denied) (hol ding that under the abuse of

discretion standard, legal and factual suf ficiency are not independe nt grounds of error, butare relevant factors in determining whether th e trial cour t abused its di scretion); see also Seidel v. Seidel, 10 S.W.3d 3 65, 368 (T ex.App.–Dal las 1999, no pet.) ; Doyle v . Doyle 95 5 S.W.2d 478, 479 (Tex.App.–Austin 1997, no pet.). Thus, in apply ing the abuse of discretion s tandard, an appellate court must eng age in a tw o-pronged i nquiry : (1) w het her the trial court had sufficient eviden ce up on wh ich to exercise its discretion, and (2) whether the trial court erred in applyi ng its dis cretion. In re De La Pena, 999 S.W.2d 521, 525-26 (Tex .App.–El Paso 1999, no pet.). The trad itional sufficiency review applies in the first inquiry and then
a determination mus t be made whether the trial court’s deci sion was neither arbi trary nor unreasonable. Id

. Findings of

fact entered in a bench trial h ave the same force and dignity as a jury’s verdi ct. In I nterest of Striegler, 915 S.W .2d 629, 638 (Tex.App. –Amarillo 1996, writ denied); Seidel , 10 S.W.3d at 368. Thus, they are subject to legal and factual suf ficiency challengeswhere there is a complete statemen t of facts in the re cord. Striegler , 915 S.W.2d at 638. In reviewing a legal sufficiency challenge, we mustexamine the r ecord for any probat ive evidenc e which sup ports th e find ing while disre ga rding all evidence or reasonable inferences to thecont rary. H olle y v. W atts , 629 S.W .2d 6 94, 6 96 (T ex. 1982); Garza v. Alv iar, 395 S.W.2d 821, 823 (Te x. 1965). A factu al suff iciency cha llenge requires2 Unless otherwis e designated, all secti on references are to the Texas Family Code. 7 us to examine the record to determine if there i s some probative evidence to support the findin g, and then determinewhether, in light of the entire record, the finding is manife stly unjust. Traylor v. Goulding, 497 S.W .2d 944, 945 (Tex. 1973 ); In re King’s Es tate, 150 T ex. 662, 244 S.W.2d 660, 661-62 (1951).
In determining conservatorship and poss ession issue s, the best interes t of the child shall always be the pri mary consi de ration. Tex . Fam. Code Ann. § 153.002 (Vernon 1996). 2 In addition, the trial court should also seek to implement the pu blic policy of this State whic h is to: (1) assure that c hildren have frequen t and continuing contact w ith parents who have shown the abi lity to act in the best interest of the c hild; (2) prov ide a safe, stable, and nonviol ent environ ment for the child; and (3) encourag e parents to share in t he rights and duties of raising their child after the parents ha ve separated or dissolved their marr iage. § 153.001(a) (Vern on Supp. 2002 ). The burden of proof by the movant in a motion to modi fy the parent-chi ld relations hip is by a preponderance of the evidence. § 105. 00 5 (Vernon 1996). A

court may modi fy a joint manag ing conser vatorshipupon a showi ng of material or

substantial c hange or that t he order to bemodified has become unw orkable or3 The Legislatur e repealed sect ion 156.202 effective September 1, 2001. However, because O’Brien’s motion to modif y was fil ed before the effective date, section 156. 202 applies. See Act of May 22 , 2001, 77th Leg., R.S., ch. 1289, §§ 12(2) and 13, 2001 Tex. Gen. Laws 3108 , 3111. 8 inappropriateunder exis ting cir cumstances, and tha t modificati on would be a p osit ive improvement for and in th e best interest of the child. § 156.202 (Vernon 1996 ). 3 By her first, second, third, and fifth i ssues, Hy lton assertsabuse of discret ion by the trial court in im posing a domicile re striction on the children’s primary residence to the Fort Bend County ar

ea and cha llenges the legal and factu al sufficiency of the evidence to support the follow ing finding s of fact:
18. The Court finds that in January 2001, [O’B rien] resigned from his employment

i n Melbo urne, Florida and incorporated a b usiness in Texas. * * * 21. The Court finds that it is in the best interest of the c hildren that their domicile be restrict ed to Fort Bend Coun ty, Texasor contig uous counties thereto, so long as [O’Brien’s] primary residence is FortBend County, Texas or contig uous counties th ereto. 22. The Court findsthat [O’Bri en] has maintained frequent and cons istent contact with the children si nce the date of divorce on May 5, 1997, in spite of the distance betw een [O’ Br ien’s] resi dence and that of the children. 23. The Courtfinds that based on t he quality of the children’s relationship with their father, i t is in the be st interest of the chi ldren that their domicile be restric

ted to Fort Bend Count y, Texas or contiguo us counties thereto. 24. T he Court finds that if the childre n moved [sic] to Hawaii, their relationship with thei r father woul d be det rimentally impacted and possessi on and access would be practically nullified since there would4 Althou gh this appeal concerns the trial court’s imposition of a domicile r estriction, the factors rev iewed in Lenz are instruc

tive. 9 be at least thirty-two hours of travel ti me during thei r periodic period of access with their father. 25. The Court finds that the children ’s intended move to Hawaii would not have been in their best interest in tha t their relationship and contact with thei r father woul d be severel y impacted. 26. The C o urt finds it i s in the best i nterest of the chi ldren that the domicile restrict ion imposed in t he Order in Sui t to Mo dify ParentChild Relationshi

p signed on M arch 13, 2001, be r emoved if [O’Br ien] no longer pr imarily

resides in Fort Bend County, Texas or contig uous counties thereto. Evidentiaryreview

in a relocat ion case is fact spec ifi c and each case mus t be evaluated on its ow n unique fact s. Confronted with a case of f irst impression, the Court analyzed relocation cases from other jurisdict ions to d evelop gui deline s for revie wing a modification order that r emoved a domici le restri ction. Lenz v. Lenz, 45 Tex. Sup. Ct. J. 781, 2002 LEXIS 75, at *10 (Tex. June 6, 2002). 4 In conducting such a review, we must endeavor

to give mea ning t o the pub lic polic y imperati ves of secti on 153.001(a) of the Family Cod e kee ping in m ind that the p rim ary

cons ider

atio n isthe b est inte res t of t h e children. Id . at *9. In discussi ng three cas es, the Court considered thefollowing factors:

reasons for a nd against themove; educati on, health, and leisure opportunities; accommodation o f spec ial needs or talents of the children; effect on extended family relationshi ps; effec t on v isitation and communication with the noncu stodial p arent; the noncustodial parent’s ability

to relocate; Baures v. Lewis, 167 N.J. 91, 77 0 A.2d 214, 229-30 (N.J. 2001); parent’s good fa ith in requ estin g the mo ve; continua tion of a meaningful relationsh i p with the noncustodial parent; eco nomic,10 emo tional, and education enhancement for the childr en and th e cu stodial parent; effect on ex tended family r

elationships; Trope a v
. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 149- 51, 642 N.Y.S. 2d 575 (N.Y. 1996) ; and employment

and education oppor

tunities of

the parents; theages of the children; community ties ; health and educational n eeds of the children; In re Marriag e of Burgess, 13Cal. 4th 25, 91 3 P.2d 473 (Cal. 1996).
As movant, O’Brien alleged a material and s ubstantial chang e in circumstan ces, that the prior orde r had become unworkable or inappropriate because Hylton w as planning to relocate to Hawai i, and that the requested modification would be in the best interest of the childre n. W e must d ecide whet her O’ Brien satisfied hi s burd en by presen ting some evidence of a substantive and probative character to support the tr ial court’ s imposition of
a domicile re striction. While Texas has not address ed whether r elocation, sta nding alone, qualifiesas a material and substantial cha nge in circumstances, where, ashere, the custodial pare nt wish es to move a significantdistance, a findi ng of changed ci rcumstances maybe appropriate. Bates v. Tesar, 2002 Tex.Ap p. LEXIS 4130, at *46 (Tex .App. –El Paso June 6, 2002, no pet. h.) , citing J aramillo v . Jaramillo, 113 N.M. 57, 8 23 P.2d 299 (1991)

. Also, since the rendition of the Georgia order, O’Brien established that Hy lto n remarried and moved to Texas, his sons have two half sisters, and a move to Hawaii would make their cus tody arran gement unwor kable or inappr opriate.
Itis undisputed that Hylton is a full ti me caregiver to her sons and tha t she is completely devoted to theirneeds. O’Bri en shares a close rel ationship w ith his sonsand11

he has regula rly exercised his periods of posses sion and access. O ’Brien ex plained that any missed v isitation w as work- related. Nei ther the educati on nor the physical health of the children i s at issue. Hylton ac knowledg ed at trial that a move to Hawaii would impact the relationshi p O’Brien haswith hi s sons and that O ’Brien and hi s younges t son share a strong bond. Bef

ore the m odification proceeding, Hy lton and O’Bri en enjoyed a harmonious relationship for divorced parents and were able to work through any difficulties.
O’Brien resign ed hi s pos itio n in Fl orid a effec tive atthe end of February 2001, and then filed Articles of Incorporation in Texas for Str ategic Heal th Associates , Inc. In March 2001, he obtained a Texas driving permit. Once settled in Texas, O’Brien enjoyed more frequent and consistent contact wi th his chil dren. However, he tes tified that if the domicile restricti on was li fted and Hylton moved to Haw aii, he would relocate to Florida because he would have no reas on to stay i n Texas. O’B rien considered a p arallel move to Hawaii and contacted a headhunter and sea rched through a Soc iety of Actuar y membership bookfor possible employ ment opportunities , but was un able to find a healt h actuary p osition.
O’Brien presented evidence th atduring a t ypical t hree-day w

eekend, one-way flight travel from Hawaii to Florida would take ten hours and thirty- nine minutes plus drivin g time. Assuming no delays or cancellations, O’Brien estimated that he would share only 36 hours with his sons, inclu ding time for s leeping. Due to the time difference O’ Brien antici pated that the boys would be tired a nd probably sleep during his wak ing hours. Due to th e expense of airline travel, his so ns us uall y travel s tandby unaccompani ed by an adult for12

a reduced fare available through Hylton’s husban d’s e mployment . The evidence establishe d that f rom where Hylton would reside in Hawaii, the re was only on e fligh t t o Houston per

day wi th nogua rantee of a seat or co nnection in Ho uston to Flor ida when flying standby. H ylton conceded that regar dless of wheth er

the boys or

O’Brien tr

aveled, itwould be “ very straining ,” and a missed flight wou ld m ake i t imp ossi ble t o have meaningful vi sitation.
O’Brien also expressed concern about the sta bili ty o f H ylton’s marriage. Hylton testified that in April 1999, she discovered that her hus band had committed an i ndiscretion with a nother

woman and informed O’Brien that she was having marital problems. However, according to Hylton, she and her hus band sought couns eling and renewed their wedding vows in M ay 200 0. Sh e tes tif ied t hat t hey a re dedicat ed to a stro ng, po sitive household.
T he evidence established that the boys have had nine residences in eight years, with thei r hom e in T exas f or th ree ye ars b eing t he lo nges t per iod o f res iden cy. Both sets of grandparents

have homes in Florida and O ’Brien’s mot her cares for t he boys duri ng summer visitat ion periods. Hylton’ s sister an d the boys’ cousins reside in S an Antonio and visit every two to th ree m onth s. Hylt on’s husb and ’s pa rent s live in Harri s County and visit twice a mont h. No one inv olved in t his litig ation has any friends or family

in Hawai i.
O’Brien testified that

his primaryconcern shoul d the boys move to Hawai i is that he will be “phased ou t” of the ir lives due to a lack of meaningful and freq uent contact.5 Because Hawaii d oes not recog nize day light sav ings time t here would be times

when the time difference would be five hours and other times s ix hours. 13 Althou gh Hylton testified that frequent co ntact could be maintai ned by regularl y scheduled telephone calls, v ideos, and e-mails in addition to visitation, O’Brien claimed tha t there is
no substitute for face-to-face conta ct and that Hy lton’s sug gestionsdo not encourag e “real communication.”O’Brien al so express ed concern that b ecause of the time differe nce, 5 there could be no ass urance of frequent contact especial ly by telephone. Sum m er and holiday visitation time would not be frequent enou gh to maintain the type of relationship he currentlyenjoys. Additionally, O’B r ien testified that the time difference would make it difficult for he and H ylton to effectiv ely co-pa rent their c hildren. Hylton pres ente d expe rt te stim ony f rom B arba ra Can dley, a psychologistwho met with the younger

son five ti mes and with the older son three times. The younger son was treated for

depression i n 1999. After treat ment and medication, he showed impr ovement. According to Candley, the younger son is very fragile and vulner able and might

not be able to cope with a move, but for his mo ther’ s devotion. On cr oss-e xamin ation b y thead li tem, Candley admitted that O’Brien shares a p ositive relationship with his sons and that his y ounger son wil l need consistent contact for r eassurance. The ol der child i s confident, emotionally

strong, and desires to move to Hawai i. Hylton’s husband wor ks in airc raft acquisi tions and market planning. He resig ned his position w ith Continental Airline s in Houston for an inc rease in pay of $50,000 and a14

relocation bonus of $20,000. He mov ed to Hawai i and began hi s new job in August 2000. On November 27, 2000, the Hyltons executed acontract of sal e and deposited $5,000 on a house in Hawaii. Hylton testified that the benefits o f moving to Hawaii included financi al stab ility, a nice home, a smal ler city with le ss pollution , travel adventures for the family to places like Seattl e, Tahiti, Guam, and China, and a less demanding job for her husba nd. However, she testified that ifa domicile restriction was imposed, her husband would return to Te xas, but w

ould probably

experience difficulty i n seeking empl oyment. She fear e d financial devastation because the $20,000 r elocation bonuswould h ave to be ret urned. Addi tion ally, her

husband’s occupation requires tha t he work where an airline is based, and Continental being the onl y Houston- based airli ne, she was not optimistic thathe would be rehired. She noted that the nex t closest ci ty

where he could seek employ mentwould be Dallas.
In considering whether th e court’s i mposition of a domici le restri cti on to th e Fort Bend County area was proper, in addition to the public policy of this State, we also apply the Holley

factors–a non-ex haustive l ist of consider ations for determi ning the best interest of the children. Holley v. Adams, 544 S.W .2d 367, 371-72 (Te x. 1976). Those factors include the desires of the c hildren, the emot ional and physical needs of thechildren now and in the future, theemotional and phy sical danger to the children now and in the future, the parental abil ities of the indi viduals i nvolved, the programs available to those individuals to promote the best inter est of the children, the plans fo r the children by these individuals, the stabilit

y of the home, the ac

ts or omissions

of the parent w hich may indicate that the15

existing parent-child relationship is not proper , and any excuse for t he acts or omis sions of the parent. Id. Closelyscru tinized, thereaso ns for m o ving to H awaii inclu de f inan cial s tabi lity, travel and leisure opportunities, the desire of the older son, and t he stabilityof the postdivorce family unit. However, the best interes ts of the children and the public policy of this S tate are served if O’Brien i s permitted to mai ntain meaningful fre quent and continuin g contact and is ab le to sha re in the rights and duties o f raisin g his chi ldren in a stable environment. § 153.001(a). O’Brien met his burden and established that the domicile restricti on is a positi ve improvement and in the best interest of the chil dren for reasons such as continuing cl ose con tact wit h his childr en, promoting relationshi ps with grandparentsand relatives, a stable env ironment after nineresidence ch ang es, and fostering the younger child’s emot ional and mental w ell-bei ng. Hylt on’s financial consideration s for moving to Hawaii are outweig hed by the need s of the c hild ren t o have fre que ntand continuing contact w ith their father

. Bates , 2002 Tex.App. LEX IS 4130, at *49. The evidence presented by O’Brien was of substa ntive and probative character upon which the trial court was able to exercise its discr etion, and thus, w

e cannot conclude that the trial cour

t misapplied i ts discreti on. Thus, there bei ng some evi dence to supp o rt the trial court’s findi ngs and its order restricting thedomicile of the c hildren to the Fort Bend County area , we concl ude that Hyl ton has not established a clear abuse of di scretion by the trial court. Issuesone, two, t hree, and five are overruled.16

By her fourth iss ue, Hylton contend s tha t the impositi on of a domicile r estriction infringeson he r con stit utio nal ri ght to trave l and to equ al pro tect ion o f th e law. We disagree. The right to travel encompasses three dif ferent components: (1) the right to enter and leave anot her State; (2) the right to be treated as a welcome v isitor while temporarily pre sent

in a noth er S tate ; and (3)fo r those travelerswho e lect to become permanent

residents, t he right tobe treated like citizen s of that State. Saenz v. Roe, 526 U.S. 489, 490, 119 S.Ct . 1518, 143 L.Ed.2d 689 (1999 ). The domicil e restrict ion imposed by the trial court applied only to the children and did not a ffect Hylton’s ability to exercise any of the aforementioned rights. Also, the contention that a domic ile restr iction infri nges on a parent’s constitutional right to travel was rejected by two of our sister courts in Bates
v. Tesar, 2002 Tex. App. LEXIS 4130 (Tex.A pp.–El Paso June 6 , 2002, no pet. h.) , and Lenzv. Lenz , 40 S.W.3d 111, 118 n.3 (Tex.App.–San Antonio 2000), rev’d on other grounds , 45 Tex. Sup. C t. J. 781, 2002 LEX IS 75 (Tex. J une 6, 2002) . In Bates , citing Lenz , the court held that the mo ther’s constitutiona l right to travel was not violated by the trial court’s order requiri ng the chil dren to relocate back to w here their father resided because the benefits in remov ing the children to reside w ith their mother was outw

eighed by the importance of

having continued contact with thei r father. See also § 153.001(a)(1 ) (Vernon Supp. 2002) (providing that the public policy of this State is to assure that childr en will have frequent

an d contin uing contact with parents who have shown the ability to act in their best interest). Thus, weighi ng th e benefits ofrelocating the children to Hawaii against t he importanc e of having continued contact w ith their father , we find that the17

domicile restriction imposed by the trial court did not viola te Hylton’ s constituti onal right to travel. A review of the record demonstrates that Hylton appris e d the trial court of the infringement

of her constitut ional rig ht to trave l in her objections tothe judgment; however, she did not raise her equal pr otection contenti on below. Thus , she has waived that por tion of h er iss ue on appe al. Ho llif ied v. Hollified, 925 S.W .2d 153, 156-57 (Te x.App.–Austin 1996, no wri t). Issue four is overruled. By her seventh is su e, Hylton contends the tri al court err ed in failing to award h er attorney’s

fees. We disagree. An award of attorney’ s fees in a suit affecting the parent
child relationship is discretion ary w ith the trial court. § 106.00 2 (Vernon Supp. 20 02); see also Bruni v. Bruni, 924 S.W .2d 366, 368 (Tex. 1996 ). The trial court’s order provides:
IT IS ORDERED that each party shall be res ponsible for hi s or h er own attorney’s

fees incurred a s a result of l egal repre sentation in thi s case.
IT IS FURTHER

ORDERED t hateach party shall pay

fifty percent

(50%) of attorney fees owed to Sally Brown as a result of her represent ation in this case as Guardian Ad Litem for the children upon presentation of her itemized statements.
Both parties in the underlying suit sought affirm ativ e relief from the tr ial court. O’Brien filed his motion seeking to modify the t erms and c onditions for access to or possession of the children and for imposition of a domicile restriction. He later amended his motion and requested thathe be appointed pr imary joi nt managing conservator . Hylto n filed her counter-petition seeking to have child support incr eased. O’Bri en was successful18

in having the trial court impose a domi cile restriction and Hylto n was successful in having the amount of child support increased. T hus, we find the trial court did not abuse it s discretion in requi ring each p arty to beresponsible for their ow n attorney’ s fees and for fifty percent of the guar

dian ad litem’s

fees. Issue seven is over ruled. Accordingl y, the judg ment of the trial court is affirmed.
Don H. Reavis Justice Quinn, J., concu rring. Publish.NO. 07-01-0294-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 13, 2002

______________________________ IN THE INTEREST O F C.R.O. AN D D.J.O., M INOR CHILD REN

_________________________________ FROM THE 387 TH DISTRIC T COURT O F FORT BE ND COUNTY; NO. 114,931; HON. ROBERT J. KERN, PRESIDING

_______________________________

Concurring Opinion

______________________________ Before BOYD, C.J., QUINN and REAVIS, J.J. I concur, in g eneral, w ith the opinion of the majority

but wri te separately

to further clarify my

reasons for affirming the decision of the trial cour t. First, though Jennifer Lee Hylton complains of th e direct ive req uirin g her t wo children with William O’Brien to live in Fort Bend Coun ty or counties contig uous thereto, she does so in a mos t restric tive way. That is, the framework in which her issues are cast is quite limit ed and limiting . She is not complaining abou t being unableto domicile he r children anywher

e other than those particular counties. Rather, she si mply ques tions the
r estrictio n to the extent it prevents the youths from mo ving across the globe to Hawaii.20

And, therein li es the rub. Gi ven the appli cable standard of review of abused di s cretion, Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App - - Dallas 1999, no pet. ), and the deference
we must accord the trial cour t’s fact finding s, I too belie ve that ev idence and authori ty supports that court’s implicit decision viz domicile in Hawaii. The same is not necessarily true regarding domicile any where other

than Fort Bend C ounty and those counties contiguouswith it . But, since Hylton does not attack the r

estriction on the g ro und that it preventsthe children from livi ng in local es other than H awaii, t he issue of whethe r the directive is overly restrictive in general is not before us. Second, to the extent

that Hyl ton asserts that the trial court’s dir

ective al so violates her right to equ al pro tect ion, I fin d the argum ent i nsuf fici entl y b r iefed. She offered no subs tant ive analysis

or aut horit y expl aining how that right

was v iolated. T EX
. R. A PP
. P. 38.1(h); In re Williams, 998 S.W.2d 724, 730 (Tex. App. - - Amarillo 1999, no pet.) (holding thatthe failure to accompany an issue w ith substantiv e analysis

or citatio n to legal authority results in the waiver of that issue)

. Third, as to the asser

tion that her purpor

ted constituti onal right

to travel to Hawaii is contravened, I cannot overrule the issue by conclu ding that the restricti on impedes the children’s mob ility, as opposed to Hylton’s. Like t he Supreme Court in Ex parte Rhodes , 163 Tex. 31, 352 S.W .2d 249 (Tex. 1961), I too recog nize that a mother would not likely
move without her

child. Id. at 251. Nor do I find acceptab le the alternative that in return for moving to Hawaii , she must rel inquish cu stody of her c hildren.21

Nevertheless, the truism that no right i s absolute is also somet hing I cannot ignore. And, to be weighed agai nst Hylton’s alleg ed right tolive i n Hawaii are, a t t he very least, 1) the State’s i nterest in hav ing both pare nts share theduty of raising their offspring, Lenz
v. Lenz , 79 S.W.3d at 14 (acknowled ging thi s to be an aspect of the public poli cy of Texas), 2) the father’s interest in interacting with hi s children, Id. at18, and 3) the children’s interest in interacting with both their parents. Hylton addressed none of the countervailing factors in her arg ument. Nor doesshe suggest that other reasonable m easures could have been enacted which were of lesser preclusive aff ect and which furthered the interests of all involved to the greatest ex tent possible. Instead, she mer ely impli es that her ri ght to travel is preeminent. W ith this, I cannot agr ee. Simply put , a state’s i nterest in as suring thatchildren hav

e meaningful inter

action wi th both parents ( assuming the p aren ts ha ve not somehow

abused or legally lost that opportunity) is su fficiently compel ling to temper Hylton’s purported ri ght to liv e in Hawai i. Se e Dupr ee v. Texas D ept. of Protecti ve and Regul atory Services , 907 S.W.2d 81 (Tex. App. - - Dallas 1995, no writ)

(holding the goal of establishin g a stable, permanent h ome for a child i s a compelling interest of the government which includes preserving the parent-child relationship.)
Brian Quinn Justice
Publish.