Tam Carbajal v. Hector Carbajal

Affirmed and Memorandum Opinion filed October 15, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00715-CV

TAM CARBAJAL, Appellant
V.
HECTOR CARBAJAL, Appellee

On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2019-73570

MEMORANDUM OPINION

This is an appeal from the modification of a child custody order. The father
of the children, Hector Carbajal, filed a motion to modify the parent-child
relationship in which he sought to modify the joint managing conservatorship of
their children established in the couple’s divorce decree. Father asked the court to
grant him sole managing conservatorship. The children’s mother, Tam Carbajal,
counter-sued to retain the joint managing conservatorship but to be named the
parent with the exclusive right to designate the primary residence of the children.
Both parties alleged a change in circumstances, as well as the unworkability of the
previous order, as predicates for modification. The case was submitted to a jury,
which found that the joint managing conservatorship should be replaced by naming
Father as the sole managing conservator. The trial court entered judgment on the
verdict and Mother filed this appeal asserting jury charge error. Concluding any
error in the jury charge was harmless, we affirm the judgment of the trial court.

BACKGROUND

At the time the parties were divorced in 2021, they had two children.
Pursuant to a mediated settlement agreement the trial court appointed the parents
joint managing conservators of the children with neither parent given the exclusive
right to designate the primary residence of the children.

Within two years of the divorce Father filed a petition to modify the parent-
child relationship in which he alleged the appointment of the parents as joint
managing conservators was not in the best interest of the children, and that Father
should be appointed as sole managing conservator. In the alternative, if the trial
court determined that appointment of the parties as joint managing conservators
was in the best interest of the children Father sought the exclusive right to
designate the primary residence of the children. As grounds for modification
Father alleged that Mother engaged and continued to engage in a history or pattern
of conduct that was harmful to the children and psychologically damaging. Father
alleged Mother made multiple false allegations about Father to the Texas
Department of Family Protective Services and/or other people.

Mother filed a counter-petition seeking to continue as joint managing
conservators with Mother given the exclusive right to designate the primary
residence of the children as well as an increase in child support payments. In
support of her motion, Mother alleged that the current child support payments were
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not in compliance with the Texas Family Code guidelines but did not allege any
material and substantial changes to support being given the exclusive right to
designate the primary residence in her counter-petition.

The case was tried to a jury, and Mother urged the court to submit the
following jury questions:

QUESTION 1:
Should the joint managing conservatorship be replaced by a sole
managing conservatorship of [the children]?
QUESTION 2:
Who should be appointed sole managing conservator of [the
children]?
QUESTION 3:
Should the order that designates neither parent the conservator who
has the exclusive right to designate the primary residence of the
children be modified to designate Hector Carbajal or Tam Carbajal the
conservator who has that exclusive right?
QUESTION 4;
Who should be appointed the joint managing conservator with
exclusive right to designate the primary residence of [the children]?

The trial court refused to submit all of Mother’s tendered jury questions. Instead,
the trial court submitted to the jury the following question:

Should the joint managing conservatorship be replaced by naming
HECTOR CARBAJAL as the sole managing conservator of [the
children]?

The jury found that the joint managing conservatorship of the child should
be replaced with a sole managing conservatorship and that Father should be named
sole managing conservator. Mother brings this appeal.

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ANALYSIS

On appeal, Mother does not challenge the jury’s findings that Father should
be named sole managing conservator. She complains only of the trial court’s
failure to submit Question 4 which asks the jury to decide which joint managing
conservator should have the exclusive right to designate the primary residence of
the children. She asserts that by refusing her submission, the trial court improperly
failed to charge the jury on a contested issue.

I. Standard of Review and Applicable Law

We review a trial court’s submission of jury questions under an abuse of
discretion standard. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d
851, 856 (Tex. 2009). To determine whether an alleged error in the jury charge is
reversible, the court considers the pleadings of the parties, the evidence presented
at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of
Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986).

We cannot reverse a judgment for charge error unless the error was harmful
because it probably caused the rendition of an improper verdict or probably
prevented the petitioner from properly presenting the case to the appellate courts.
Tex. R. App. P. 61.1. Charge error is generally considered harmful if it relates to a
contested, critical issue. Hawley, 284 S.W.3d at 856. Alleged jury charge error can
be harmless if the jury’s answers to other questions render the proposed question
immaterial. Matter of Estate of Poe, 648 S.W.3d 277, 286 (Tex. 2022).

Under the Texas Family Code, a party is entitled to a jury verdict on “the
determination of which joint managing conservator has the exclusive right to
designate the primary residence of the child.” Tex. Fam. Code. Ann. §
105.002(c)(1)(D). A parent appointed as the sole managing conservator has the

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exclusive right to designate the primary residence of the child unless otherwise
limited by the court. Tex. Fam. Code Ann. § 153.132(1).

II. Presuming the trial court erred in failing to submit Mother’s requested
question to the jury, the error was harmless.

The only question submitted by the court asked the jury whether the joint
managing conservatorship should be replaced by naming Father as the sole
managing conservator. The jury answered “yes.” The question of which parent
should have the exclusive right to designate the primary residence of the children
would have been necessary only if the jury decided to keep Mother and Father as
joint managing conservators. See Tex. Fam. Code Ann. § 105.002(c)(1)(D). Once
the jury found that a sole managing conservator should be named, the jury would
have never considered Mother’s proposed questions had they been submitted
because the right to designate the primary residence of the children is a right and
duty afforded to the sole managing conservator.1

The jury question submitted by the trial court was consistent with the
governing provisions of section 105.002 of the Family Code. Mother does not
contend on appeal that the jury’s finding was not supported by evidence at trial.
The jury’s answer on the issue of conservatorship rendered Mother’s proposed
questions immaterial because the jury would never have reached them in their
deliberations. Estate of Poe, 648 S.W.3d at 286. The decision to grant Father sole
conservatorship of the children necessarily affords him the right to determine the
primary residence of the children under Texas law unless otherwise limited by the
court. Therefore, the alleged charge error was harmless. We overrule Mother’s
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The statute only allows the jury to determine the rights and duties of a sole managing
conservator on the issue of whether to restrict the geographic area that a sole managing
conservator may designate as the child’s primary residence and if so, what geographic area that
will be. See Tex. Fam. Code Ann. § 105.002(c)(2)(C). Mother did not request the trial court to
submit questions on that issue.

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issue on appeal.

CONCLUSION

Having overruled Mother’s issue on appeal, we affirm the trial court’s
judgment.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

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