OPINION WITHDRAWN and new opinion filed November 21, 2002.
Appellant Tony Wayne Cook II appeals from the trial court's order awarding appellee Stoney Short primary managing conservatorship of Tony's child with the exclusive right to establish the child's permanent residence, the right to receive and disburse child support benefits, and the right to make educational decisions for the child. Tony is the natural father of T.D.C., and Stoney is a non-parent. Tony also challenges the trial court's award of attorney's fees to Stoney. We will reverse and remand.
II. Factual and Procedural Background
Appellant Tony Wayne Cook II and Martina Kaye Short are the biological parents of T.D.C., a six-year-old boy. At the time of his birth, Tony and Martina were not married. Martina filed a petition to establish paternity in Tony, which he contested. On December 20, 1995, the 249th District Court of Johnson County, Texas, entered an order establishing the parent-child relationship between Tony and T.D.C. and appointing Martina as managing conservator and Tony as possessory conservator. The order apportioned the parental rights and responsibilities between Tony and Martina. Martina was given the exclusive right to determine the child's primary residence, which was with her. Tony was given specific, scheduled visitation rights.
Even though Tony was given visitation rights to T.D.C., Martina made it very difficult for him to visit T.D.C. She made it clear that she did not want Tony to have a parental relationship with T.D.C. Between December 20, 1995 and February 17, 1996, Tony attempted on several occasions to arrange times with Martina for him to visit T.D.C. Martina either did not respond to his requests or denied them. On December 30, 1995, Tony filed charges against Martina for interference with child custody, but later dropped the charges because Martina permitted him to visit T.D.C. on January 7, 1996. After this visit, Martina again refused Tony's subsequent requests to visit T.D.C. Martina also attempted to legally change T.D.C.'s last name from Cook to Short, the last name of her ex-husband, Stoney Short. Furthermore, according to Tony, Martina "said that she didn't know why [Tony] bothered. [T.D.C.'s] not going to know [him] as the father. And -- he never will know [Tony] as his father. . . . [S]he was going to tell him that . . . Stoney's his father."
From February 17, 1996 through July 6, 1998, Tony had no contact with T.D.C. He stated that he did not try to force his way into Martina's and T.D.C.'s lives because he thought it would be detrimental to the child. 1 During this time, Tony believed that T.D.C. lived with Martina and never received any information to the contrary. Although Tony did not insist on maintaining his visitation rights in the face of Martina's refusal to allow him to see T.D.C., Tony continued to pay child support and insurance for T.D.C. even when T.D.C. was in Stoney's custody.
Martina also had three other children from a previous marriage to Stoney. All four children resided with her until around October or November 1997. Around this time, Martina was having problems with drug use and brought the children to Stoney to reside with him. Neither Martina nor Stoney ever informed Tony that T.D.C. was now living with Stoney or that Martina had a drug problem. Martina's drug use eventually resulted in her being incarcerated for eighteen months on September 7, 1999. She was also hospitalized at a mental health facility in May 1998.
On May 27, 1998, Stoney filed a petition to modify the parent-child relationship, requesting that he be appointed sole managing conservator for T.D.C. 2 Tony first learned that T.D.C. was living with Stoney when Stoney filed his petition for modification. In response, Tony filed a counter-petition to modify the parent-child relationship, asking that he be named managing conservator and challenging Stoney's standing to bring suit. On September 3, 1998, the Johnson County district court gave Tony specific periods of possession and entered a temporary injunction to preserve the status quo. Stoney was not named as a conservator, and the question of his standing was reserved by the trial court for determination at a later time.
On July 7, 1999, Stoney filed a petition for writ of habeas corpus, alleging he had the right of possession of T.D.C. and that T.D.C. was illegally restrained by Tony. Tony allegedly had refused to return T.D.C. to Stoney after visiting with him over the Fourth of July weekend in 1999, in violation of the court-ordered temporary possession schedule in force at the time. On July 9, 1999, the trial court denied Stoney habeas corpus relief. On July 23, 1999, the trial court heard Stoney's application for temporary orders. At the hearing, Stoney and the child's ad litem attorney agreed to the entry of a temporary order that appointed Tony as temporary sole managing conservator with the right to determine the primary residence of the child. T.D.C. then began living with Tony.
The case was then transferred from Johnson County to the 233rd District Court of Tarrant County pursuant to a motion to transfer filed by Martina on August 7, 1998, which requested transfer to Tarrant County because T.D.C. had been a resident of Tarrant County for six months and because none of the other parties to the proceedings resided in Johnson County. Three months after Stoney voluntarily agreed to allow Tony to be appointed temporary managing conservator of T.D.C., he filed a motion requesting the Tarrant County trial court to reverse the previous ruling of the Johnson County trial court.
An associate judge held a hearing on Stoney's motion to reconsider the petition for habeas relief on November 22, 1999. The associate judge ordered that T.D.C. be returned to Stoney and restricted Tony's possession to the terms of the oral September 3, 1998 order of the Johnson County district court. 3 Tony appealed the associate judge's ruling to the presiding judge of the 233rd District Court. Tony also filed an application for habeas corpus relief to enforce his right of possession under the temporary order, alleging Stoney was illegally restraining T.D.C. from visiting him.
On December 9, 1999, the associate judge heard Tony's application for habeas corpus relief. At that hearing, the associate judge set aside the temporary order of the Johnson County district court dated September 23, 1999, and denied Tony's habeas corpus application. Tony immediately appealed these rulings to the Tarrant County district court as well.
On December 20, 1999, the Tarrant County district judge heard the appeals and set aside the temporary orders dated September 23, 1999, denied Tony's application for habeas corpus relief, and set a new possession schedule for Tony. The court, however, did not rule on Stoney's motion to reconsider the denial of his habeas corpus petition, did not appoint either Tony or Stoney as a conservator, and did not specify any right of possession for Stoney.
The case proceeded to trial on May 3, 2000. After two days of testimony, the trial court rendered judgment appointing Stoney and Tony as joint managing conservators and granting Stoney the exclusive right to make decisions regarding T.D.C.'s residency and education and disbursement of child support payments. Martina was removed as managing conservator and designated as a possessory conservator, with possession left to the discretion of Stoney. Tony's rights under the judgment included all rights and duties normally associated with parenthood, except the right to establish T.D.C.'s primary residence and the right to make educational decisions on T.D.C.'s behalf. Tony is also required to make child support payments to Stoney, which Stoney is authorized to manage and disburse "for the benefit of the child." Tony appeals from this judgment.
III. Standards of Review
We review the trial court's modification of a joint managing conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re Moss, 887 S.W.2d 186, 188 (Tex. App.-Texarkana 1994, no writ). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). In our review of modification under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in deciding whether the trial court abused its discretion. In re Marriage of Driver, 895 S.W.2d 875, 877 (Tex. App.-Texarkana 1995, no writ).
In determining a "no-evidence" issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998).
IV. The Parental Presumption
In Tony's first issue, he argues the trial court should have applied the parental presumption at the modification proceeding and awarded him primary managing conservatorship. See Tex. Fam. Code Ann. § 153.131(a) (Vernon Supp. 2002). He contends the trial court erred in appointing Stoney primary managing conservator with the exclusive right to establish T.D.C.'s residence, without first finding that it was not in T.D.C.'s best interests to have Tony appointed in that capacity because it significantly impairs the child's physical health and emotional development. See Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex. 1999) (holding exclusive right to determine primary residence of child is equivalent of having "custody" of child).
The natural right existing between parents and their children is of constitutional dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). This natural parental right has been characterized as "essential," a "basic civil right of man," and "far more precious . . . than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972); Holick, 685 S.W.2d at 20. "[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made." Troxel v. Granville, 530 U.S. 57, 72-73, 120 S. Ct. 2054, 2064 (2000). There is a legal presumption that awarding custody to a parent is in the best interests of the child. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). The basis for the parental presumption is the "natural affection usually flowing between parent and child." Id.
The legislature codified the presumption in chapter 153 of the family code, which governs original custody determinations:
[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. Tex. Fam. Code Ann. § 153.131(a).
In an original custody suit, a non-parent can be appointed as joint managing conservator only if the non-parent rebuts the parental presumption. In re De La Pena, 999 S.W.2d 521, 527-28 (Tex. App.-El Paso 1999, no pet.). Thus, a non-parent cannot be appointed as managing conservator over a parent unless the non-parent shows that appointment of the parent would significantly impair the child's health or development. Id.; see also V.L.K., 24 S.W.3d at 341. Furthermore, in order to rebut the parental presumption, chapter 153 requires a non-parent to show that the natural parent has "voluntarily relinquished actual care, control, and possession of the child to a non-parent" for one year or more and the appointment of a non-parent as managing conservator is in the best interest of the child. Tex. Fam. Code Ann. § 153.373 (Vernon 1996); V.L.K., 24 S.W.3d at 342. A court's primary consideration in any conservatorship case, however, shall always be the "best interest of the child." Tex. Fam. Code Ann. § 153.002.
After a court makes an original custody determination, a party may move to modify that determination. See id. § 156.002; V.L.K., 24 S.W.3d at 342. At the time the trial court in this case made its custody determination, section 156.101 allowed a trial court to modify conservatorship under the following conditions:
(a) The court may modify an order that designates a sole managing conservatorship of a child of any age if:
(1) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and
(2) the appointment of the new sole managing conservator would be a positive improvement for the child. Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2002). 4
Accordingly, any person who seeks to modify an existing custody order must show changed circumstances and that modification would be a positive improvement for the child. V.L.K., 24 S.W.3d at 342.
Chapter 156 does not provide for a parental presumption in modification suits as in original custody suits. Id. at 342-33; see also Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955) (holding parental presumption does not control in modification suits). According to the Supreme Court of Texas, the public policy behind this statutory distinction is that "a change of custody disrupts the child's living arrangements and the channels of a child's affection, [so] a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child." Taylor, 276 S.W.2d at 790; see also V.L.K., 24 S.W.3d at 343 (stating appellate courts have recognized policy concern that trial court should not change custody unless it is a positive improvement because of child's need for stability).
Because the proceedings below involved the modification of an original custody decree, we hold the parental presumption does not apply in this case. Therefore, the trial court was not required to find that appointment of Tony as primary managing conservator would significantly impair the child's physical health and emotional development before appointing Stoney primary managing conservator with the exclusive right to establish T.D.C.'s residence. See Tex. Fam. Code Ann. § 156.101(a). We overrule issue one.
V. Voluntary Relinquishment and Positive Improvement
In Tony's second issue, he asserts there was no evidence or, alternatively, factually insufficient evidence to support the trial court's findings that he voluntarily relinquished actual care, control, and possession of T.D.C. to Stoney from February 17, 1996 until July 6, 1998. 5 In his third issue, Tony argues the trial court abused its discretion because there was legally and factually insufficient evidence to support the trial court's finding that the appointment of Stoney as primary managing conservator would be a positive improvement for and in the best interest of T.D.C. Tony does not challenge the trial court's finding that his and T.D.C.'s circumstances have materially and substantially changed.
A. Voluntary Relinquishment
Under the Texas Family Code, a finding that a parent has voluntarily relinquished actual care, control, or custody of a child will rebut the parental presumption in an original custody suit. Tex. Fam. Code Ann. § 153.373(1). In addition, voluntary relinquishment (for six months) by the conservator "who has the exclusive right to establish the primary residence of the child" is a ground for modifying a child custody order to appoint another managing conservator. Id. § 156.101(3). This is not, however, an original custody suit, and Tony did not have "the exclusive right to establish" T.D.C.'s primary residence at the time of the modification suit below. Thus, neither section 156.101 nor section 153.373(1) apply to the facts of this case and the issue of voluntary relinquishment is not a cognizable ground under the family code that will, standing alone, support the appointment of Stoney as primary managing conservator of T.D.C.
As discussed below, the controlling issue in this case is whether the appointment of Stoney as primary managing conservator would be a positive improvement for T.D.C. Accordingly, upon reviewing the sufficiency of the evidence to support the trial court's finding that it would be a positive improvement to appoint Stoney as T.D.C.'s primary managing conservator, it will be unnecessary for us to reach the question of whether the evidence is sufficient to support the trial court's specific voluntary relinquishment findings regarding Tony.
B. Positive Improvement
The trial court may modify an order that designates a sole managing conservator of a child of any age if:
(1) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and
(2) the appointment of the new sole managing conservator would be a positive improvement for the child. Tex. Fam. Code Ann. § 156.101(a). 6
As with all suits regarding conservatorship of a child, "[t]he best interest of the child shall always be the primary consideration of the court" in a proceeding to change managing conservators. See id. § 153.002 (Vernon 1996); In re M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied); In re Marriage of Chandler, 914 S.W.2d 252, 253-54 (Tex. App.-Amarillo 1996, no writ). 7
The family code does not define or set out the relevant factors to be considered when determining whether a requested change is in the best interest of a child. In other contexts involving a "best interest" analysis, Texas courts have applied what are commonly referred to as the Holley factors-a nonexhaustive list of considerations for determining a minor's best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (enumerating list of factors to ascertain best interest of child in parental termination context); see also In re Doe 2, 19 S.W.3d 278, 282 (Tex. 2000) (applying Holley factors for best interest determination in judicial bypass provision of parental notification act); Turner, 47 S.W.3d at 767 (applying best interest analysis to determine whether modification would be a positive improvement for child). The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002.
The factors that may be considered in determining the issue of positive improvement include, but are not limited to: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; and (3) the emotional and physical danger to the child now and in the future. Holley, 544 S.W.2d at 371-72. The need for permanence is a compelling consideration in determining the child's present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.-Dallas 1987, writ ref'd n.r.e.).
We conclude there is more than a scintilla of evidence supporting the trial court's finding that the appointment of Stoney as T.D.C.'s primary managing conservator would be in T.D.C.'s best interest. The evidence shows that T.D.C. knew Stoney as his father before he began to have regular contact with Tony and that T.D.C. had lived with Stoney most of his life. We hold this evidence is legally sufficient to support a finding that T.D.C.'s present and future emotional need for permanence would be served by the appointment of Stoney as T.D.C.'s primary managing conservator. We further conclude, however, that the evidence is factually insufficient to support the trial court's finding on the issue of best interest.
When we determine that evidence is factually insufficient, our opinion must detail the evidence relevant to the issue in consideration and clearly state why the evidence supporting the issue is factually insufficient or is so against the great weight and preponderance of other evidence as to be manifestly unjust, why it shocks the conscience, or why it clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g). Further, our opinion must state in what regard the contrary evidence greatly outweighs the evidence in support of the finding. Id.; see also Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986).
The evidence shows the following:
1. Desires of T.D.C.
The uncontroverted evidence at trial shows that T.D.C. does not want to live with Stoney. In a tape-recorded conversation made by Tony, T.D.C. asked, "How come the Judge said I have to live with Stoney?" T.D.C. also stated, "I don't want to live with Stoney." Lawanda, Tony's wife, also testified that T.D.C. indicated he wants to live with her and Tony. There is no contrary evidence showing that T.D.C. desires to live with Stoney and his children. Thus, if T.D.C.'s wishes are to be considered, then the uncontroverted evidence of his desires clearly weighs against placing him with Stoney. See Tex. Fam. Code Ann. § 153.009(b) (Vernon Supp. 2002) (authorizing consideration of child's desires).
2. T.D.C.'s Present and Future Emotional and Physical Needs
The evidence of Stoney's capability of providing for T.D.C.'s present and future emotional and physical needs is greatly outweighed by the evidence showing that T.D.C.'s present and future emotional and physical needs would not be positively improved by appointing Stoney as his primary managing conservator. In October or November of 1997, T.D.C. began residing with Stoney on a full-time basis as a result of Martina's drug use. Stoney testified that while T.D.C. lived with him he became very close to his wife Julie Short. T.D.C. has lived with his maternal brothers for almost his entire life and considers Stoney's and Julie's other children to be his siblings.
There is evidence in the record, however, showing that both Martina and Stoney made a deliberate effort to keep T.D.C. from forming an emotional bond with Tony and to keep Tony from providing parental care to T.D.C. While Stoney testified that T.D.C. called him and no one else "daddy" before Tony began seeing T.D.C. again, the evidence shows that the reason for this is that Stoney and Martina both led T.D.C. to believe that Stoney was his real father. Martina also threatened Tony that she would ensure T.D.C. knew Stoney as his father, and she attempted to carry out this threat by thwarting Tony's attempts to visit T.D.C. when he was in Martina's custody. Moreover, when T.D.C. moved in with Stoney, neither he nor Martina ever informed Tony about the change in living arrangements. Tony only found out that T.D.C. was living with Stoney when Stoney filed a petition to modify the parent-child relationship. Stoney did not include Tony as a contact person at T.D.C.'s school or on T.D.C.'s medical records. Instead, he represented that he was T.D.C.'s father. This evidence shows that Stoney took affirmative steps to mislead others about the nature of his relationship with T.D.C. and to keep Tony from having direct involvement in his son's life, all of which is detrimental to T.D.C.'s need for a physical and emotional relationship with Tony.
3. Present and Future Emotional and Physical Danger to T.D.C.
The overwhelming weight of the evidence also shows that appointing Stoney as primary managing conservator could be physically and emotionally dangerous to T.D.C. While T.D.C. lived with Stoney, Julie's ex-husband, Brent Dalley, frequently visited his children at Stoney's house. Dalley and Julie were involved in a custody dispute regarding their children, and Dalley had arguments with Stoney in the presence of the children. On one occasion, Dalley displayed a gun to Stoney in a threatening manner and cocked it. On another occasion, Dalley hit Julie in the face.
Stoney's brother, Scott, is also a recurring visitor at Stoney's residence. Scott has been arrested on drug charges and was convicted for failing to identify himself to a police officer. On one occasion, Scott was arrested while he was in possession of T.D.C. Stoney, however, continues to leave T.D.C. in Scott's possession; he testified at trial that he was not concerned about his brother's criminal record and that he has probably left T.D.C. with Scott since the time he was arrested in T.D.C.'s presence.
Tony testified that he saw signs of physical abuse on T.D.C., which Tony stated were caused by Stoney's children. For example, Tony testified that T.D.C. once had scratches on his face and that T.D.C. had also been bitten on the back. Both injuries were allegedly inflicted by Stoney's children. Pictures of these injuries were admitted into evidence at trial. There is no evidence of any potential physical or emotional danger to T.D.C. if he lives with Tony.
From this evidence, it is apparent that while living with Stoney, T.D.C. had been subjected to an environment where guns are drawn, adults hit each other, and adult supervisors are arrested in front of children. This hostile environment presents physical and emotional dangers to T.D.C. that would not constitute a positive improvement for T.D.C.
In sum, while there is some evidence that shows that T.D.C.'s need for permanence may be satisfied by leaving him under Stoney's primary managing conservatorship, the evidence supporting the trial court's appointment of Stoney is overwhelmingly outweighed by evidence showing it would not be a positive improvement for T.D.C. to have Stoney serve as T.D.C.'s primary managing conservator. We, therefore, conclude the trial court abused its discretion in appointing Stoney as primary managing conservator on this record. 8 We sustain Tony's third issue.
VI. Attorney's Fees
In Tony's fourth through fifth issues, he challenges the trial court's award of attorney's fees to Stoney. The "Order in Suit Affecting the Parent-Child Relationship" awards Stoney $6,200 in attorney's fees for "prosecuting the Writ of Habeas Corpus and the Motion to Compel Discovery." Under section 106.002 of the family code, the trial court may award attorney's fees. Tex. Fam. Code Ann. § 106.002(a) (Vernon Supp. 2002). The trial court's award of attorney's fees in a suit affecting the parent-child relationship will not be disturbed absent an abuse of discretion. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996).
Because the trial court's judgment on remand may be significantly different in light of our decision today, we reverse the trial court's award of attorney's fees to give it an opportunity to reconsider the award of attorney's fees when it renders a new judgment. See id. at 368-69. Accordingly, we do not reach the merits of Tony's fourth and fifth issues.
In his sixth issue, Tony argues that the trial court erred in granting Stoney's motion to compel the production of a chronological set of notes prepared by Tony and his wife "in anticipation of this litigation to assist their attorneys." The notes are a written chronology of the events regarding the relationship between Tony and Martina, the custody disputes between Tony and Martina and Tony and Stoney, and the attempts Tony made to visit T.D.C. Tony asserts that the trial court's error was harmful because the notes were introduced into evidence at trial against Tony. Tony did not object, however, to the chronology being introduced into evidence at trial and told the trial court he had no objection to it being offered into evidence.
Thus, we fail to see how Tony was harmed, and Tony waived error by failing to object to the chronology being admitted into evidence. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103; State Bar v. Evans, 774 S.W.2d 656, 658 n.6 (Tex. 1989); cf. Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989) (holding even though trial court should not have admitted witness's testimony due to plaintiffs' failure to supply defendants with witness's address as requested in interrogatories, defendants failed to preserve complaint as to admission of witness's testimony by failing to object when testimony was offered at trial), cert. denied, 493 U.S. 1074 (1990). We overrule Tony's sixth issue.
Because we hold there is factually insufficient evidence to support the trial court's finding that awarding Stoney primary managing conservatorship of T.D.C. with the right to determine his place of residency and the right to make decisions regarding his education would be a positive improvement for T.D.C., we reverse the trial court's judgment and remand this case to the trial court for a new trial.
LIVINGSTON, J. filed a dissenting opinion.
I respectfully disagree with the majority's conclusion that the evidence was factually insufficient to show that appointing Stoney as primary managing conservator would be a positive improvement for T.D.C. While the majority correctly sets forth the standard of review for factual sufficiency challenges and the applicable law, I disagree with its conclusion.
When considering a factual sufficiency challenge, a court of appeals must consider and weigh all of the evidence, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998). We can set aside a finding of fact only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Id. at 407. A court of appeals is not a fact finder and may not substitute its judgment for that of the fact finder, even if the evidence would clearly support a different result. Id.
When reversing a trial court's judgment for factual insufficiency, a court of appeals must detail all the evidence relevant to the issue and clearly state why the fact finding is factually insufficient or so against the great weight and preponderance of the evidence that it is manifestly unjust. Id.; Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex. 1994). The opinion must explain how the contrary evidence greatly outweighs the evidence supporting the finding. Ellis, 971 S.W.2d at 407; Keever, 888 S.W.2d at 794.
The majority opinion correctly recognizes that the "best interest" analysis is the primary consideration in determining child custody issues. See Tex. Fam. Code Ann. § 153.002 (Vernon 1996). Under this analysis we are to apply the Holley factors, which include: (1) the desires of child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the plans for the child by the party seeking the change; and (5) the stability of the home or the proposed placement. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
While the majority recognizes the importance of a best interest analysis, it concludes that the trial court's finding of positive improvement is not supported by factually sufficient evidence. A meaningful distinction between what would be a positive improvement for a child and what would be in the child's best interest is hard to articulate. Indeed, some Texas courts have either analyzed "positive improvement" and "best interest" together without distinction or expressly recognized that there is no substantive difference between the two terms. See In re A.P.S., 54 S.W.3d 493, 495-97 (Tex. App.-Texarkana 2001, no pet.) (analyzing "best interests" and "positive improvement" without distinction); Turner v. Turner, 47 S.W.3d 761, 767 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (same); Jenkins v. Jenkins, 16 S.W.3d 473, 481-82 (Tex. App.-El Paso 2000, no pet.) (same); Seidel v. Seidel, 10 S.W.3d 365, 370 (Tex. App.-Dallas 1999, no pet.) (same); Gray v. Gray, 971 S.W.2d 212, 214 (Tex. App.-Beaumont 1998, no pet.) ("We see no substantive distinction, and the parties have not provided us with any, between [what would be a positive improvement and what is in the best interest of the child]."). Perhaps in recognition of this redundancy, the legislature recently omitted any "positive improvement" language from the modification chapter of the family code. See Act of May 22, 2001, 77th Leg., R.S., ch. 1289, §§ 5, 8, 2001 Tex. Gen. Laws 3108, 3108-10.
Because there is no distinction, the Holley factors are relevant for determination of what would be a positive improvement for the child. See Majority Op. at 16 & n.7 (citing Turner, 47 S.W.3d at 767). The second Holley factor requires consideration of the emotional and physical needs of the child now and in the future. Holley, 544 S.W.2d at 371-72. The majority expressly states that under this factor, the need for permanence is the paramount consideration. Majority Op. at 17 (citing In re N.K., 54 S.W.3d 499, 505 n.11 (Tex. App.-Texarkana 2001, pet. filed)). Further, even if "best interest" can be distinguished and the Holley factors are irrelevant for determining what would be a positive improvement, this court has stated that "it is a positive improvement, as a matter of law, for the child's domiciliary status to no longer be in limbo." Bingham v. Bingham, 811 S.W.2d 678, 681 (Tex. App.-Fort Worth 1991, no pet.) (emphasis added).
The majority correctly states that in reviewing the factual sufficiency of evidence, we are to look at all the evidence relevant to an issue. And although the majority states that permanence is an important consideration, its opinion places more emphasis on the evidence showing some dangerousness of T.D.C.'s living environment at Stoney's compared with Tony's ability to provide a safer and more secure environment. I would place more emphasis on the child's need for permanence as well as Tony's previous relinquishment of the child as well as the evidence that T.D.C. had always known Stoney as his father; that, but for a six-month interruption in 1999, he had lived with Stoney or Martina and their children all his life; and that Tony was originally named a possessory conservator in Martina's suit to establish paternity but made no attempt to see T.D.C. from February of 1996 until July of 1998. Moreover, I believe the suit is really a suit to modify legal managing conservatorship so that it matches the child's reality: the child had lived with Stoney for virtually his entire life. Thus, I would conclude that the evidence supporting the finding that appointing Stoney would be a positive improvement is not so weak and that the evidence supporting a contrary finding is not so overwhelming as to justify a new trial.
For the foregoing reasons, I respectfully dissent.
TERRIE LIVINGSTON JUSTICE
1. In the past, Martina has made false accusations against Stoney for committing crimes such as assault and sexual assault.
2. Stoney is not the biological or adoptive father of T.D.C. and is considered a "non-parent" under the Texas Family Code. Cf. Tex. Fam. Code Ann. § 101.024 (Vernon Supp. 2002) (defining "Parent").
3. The Johnson County court's September 3, 1998 pronouncement was reduced to writing and signed by the Johnson County district court on November 23, 1999.
4. Section 156.101 was amended effective September 1, 2001. See Act of May 22, 2001, 77th Leg., R.S., ch. 1289, § 5, 2001 Tex. Gen. Laws 3108, 3108-09 (current version at Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2002)).
5. According to the trial court's findings, Tony "relinquished actual care, control and possession of [T.D.C.] to [Martina] and [Stoney] on or about February 17, 1996, and this relinquishment continued unabated, until [Tony] requested appointment as [T.D.C.'s] managing conservator on July 6, 1998." The trial court also found that Tony "voluntarily agreed and acquiesced to [Stoney] actin[g] as [T.D.C.'s] father until July 6, 1998, thereby relinquishing all of [his] rights to actual care, control and possession of [T.D.C.] to [Stoney] for that period of time." Additionally, the trial court found that Tony "was never forced, coerced, threatened or otherwise compelled to relinquish and abandon actual care, control and possession of [T.D.C.]."
6. By appointing Stoney and Tony as joint managing conservators, and by simultaneously renaming Martina as possessory conservator, the trial court appointed a new managing conservator.
7. We agree with those courts of appeals that have concluded that there is no meaningful distinction between "positive improvement" and "best interests" of the child. See, e.g., In re A.P.S., 54 S.W.3d 493, 495-97 (Tex. App.-Texarkana 2001, no pet.); Turner v. Turner, 47 S.W.3d 761, 767 (Tex. App.-Houston [1st Dist.] 2001, no pet.).
8. The dissent implies that, in finding the evidence of positive improvement factually insufficient, we have acted as a fact finder and substituted our judgment for that of the trial court. To the contrary, when presented with a factual sufficiency challenge, we must review all of the evidence and determine whether the evidence supporting a particular finding is so weak or the evidence to the contrary is so overwhelming that a new trial is required. Garza, 395 S.W.2d at 823. When, as here, the application of this standard demonstrates that the evidence supporting the challenged finding is weak and overwhelmingly outweighed by contrary evidence, we are afforded no discretion but to conclude that the evidence is factually insufficient and reverse and remand the case for a new trial. Id.