law-SAPCR-appeals | child support litigation | appeals from divorce proceedings, property division |
post-divorce actions for clarification of decree and enforcement |
STANDARD OF REVIEW IN SAPCR APPEALS
We review the trial court’s decisions on custody, control, possession, and visitation matters for an
abuse of discretion. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.)
(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). To determine whether a trial court
abused its discretion, we must decide whether the trial court acted without reference to any guiding
rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004). An appellate court cannot conclude that a trial court abused its discretion merely because
the appellate court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
And an abuse of discretion does not occur when the trial court bases its decisions on conflicting
evidence and some evidence of substantive and probative character supports its decision. Unifund
CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198,
211 (Tex. 2002).
BEST-INTEREST FACTORS
Factors a trier of fact may consider in determining the best interest of the child include: (1) the
desires of the 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 parental abilities of the
individual seeking custody; (5) the programs available to assist the individual to promote the best
interest of the child; (6) the plans for the child by the individual or by the agency seeking custody;
(7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which
may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These
factors are not exhaustive, and undisputed evidence of just one factor may be sufficient in a
particular case to support a finding that termination is in the best interest of the child. In re C.H., 89
S.W.3d at 27. “[T]he Holley factors focus on the best interest of the child rather than the best
interest of the parent.” In re D.P.R.V., No. 04-09-00644-CV, 2010 WL 2102989, at *1 (Tex. App.—
San Antonio May 26, 2010, no pet.) (mem. op.).
SAPCR APPEALS IN THE TEXAS SUPREME COURT
In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)
(method of service of amended petition, sufficiency of service by certified mail under rule 21a when
Defendant has been served with civil process, but has not filed an answer or made appearance)
(SAPCR modification proceeding brought within one year of final order in underlying child custody
suit).
IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-
CV, ___ SW3d ___, 12-06-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals' judgment and remands the
case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill,
Justice Medina, Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice
Willett joined. (default judgment not to be based on amended petition seeking more onerous relief
against nonanswering defendant if not served with new citation)
COURT OF APPEALS CASES IN WHICH REVIEW WAS DENIED BY THE
TEXAS SUPREME COURT
09‑0092
CHRISTOPHER J. MCCLOSKEY v. ANNE M. MCCLOSKEY; from Fort Bend County; 14th district
(14‑06‑00470‑CV, ___ SW3d ___, 09‑09‑08, pet. denied Nov 2009)
as reinstated (Attorney's Fees in SAPCR divorce improperly characterized as additional child
support McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Substituted opinion
by Hedges) (SAPCR divorce attorneys fees cannot be ordered as additional child support
enforceable by contempt)
08-0917
IN THE INTEREST OF J.I.M., A MINOR; from El Paso County; 8th district (08-05-00302-CV, 281
SW3d 504, 08-21-08, pet. denied Sep. 2009)(SAPCR modification, child support arrears)
09-0559
JEFFREY I. RUBINETT v. SHARON M. RUBINETT; from Tarrant County;
2nd district (02-08-00021-CV, ___ SW3d ___, 05-14-09, pet. denied Sep 2009)
(SAPCR divorce case, allocation of specific parental rights)
09-0119
IN THE INTEREST OF L.A.F., C.D.F., AND N.C.F.; from Collin County;
5th district (05-07-00051-CV, 270 SW3d 735, 11-10-08, pet denied Aug. 2009)
(SAPRC modification, mediation)
09-0334
ZAHOOR SIDDIQUI v. MASOON SIDDIQUI; from Harris County;
14th district (14-07-00235-CV, ___ SW3d ___, 03-03-09, pet. denied July 2009)
(SAPCR divorce appeal, pro se litigants, intervention by attorney for fees, child support guideline
deviation)
09-0094
IN THE INTEREST OF D.C.M. AND L.G.M.; from Fort Bend County; 14th district (14-06-00844-CV,
___ SW3d ___, 09-09-08, pet. denied June 2009)(SAPCR modification, multiple issue on appeal,
mischaracterization of attorney's fees as child support corrected)