Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00337-CV ________________ JEREMY MICHAEL CAIN, Appellant V. JADE RAQUEL LEMOINE-CAIN, Appellee ________________________________________________________________________ On Appeal from the 88th District Court Hardin County, Texas Trial Cause No. 63797 ________________________________________________________________________ MEMORANDUM OPINION Jeremy Michael Cain appeals from a final decree of divorce. In two issues, Jeremy challenges the portion of the divorce decree that appointed Jade Raquel Lemoine-Cain the exclusive right to designate the primary residence of the children within Smith County, Texas, and contiguous counties upon her acceptance into a nurse practitioner program. Jeremy challenges the factual sufficiency of the evidence supporting the geographical restriction and argues it is not in the best interest of the 1 children under the Lenz and Holley factors. We affirm the trial court’s judgment for the reasons discussed below. Background On December 13, 2022, Jade filed her Original Petition for Divorce. In the petition, Jade stated that she and Jeremy were married on or about July 18, 2015, and separated on or about December 5, 2022. Jade stated that she and Jeremy had one child. Jade later filed a First Amended Petition for Divorce and a Second Amended Petition for Divorce. The amended petitions include an additional child born after the couple was separated. In January 2023, Jeremy filed his Original Counterpetition for Divorce along with his Original Answer. In August 2023, Jeremy filed an Amended Counterpetition for Divorce. On June 17, 2024, a bench trial was held to determine geographic restrictions for the two children, as well as a credit for the sale of a beach house, which is not at issue on appeal. The parties stipulated that an agreement was reached regarding all other details of the divorce and property division. Regarding the children, Jade and Jeremy agreed that both would be named as the children’s joint managing conservators, Jade would have the exclusive right to designate the primary residency of the children, Jeremy would pay child support under the guidelines, and both would pay fifty percent of unreimbursed healthcare expenses. 2 At trial, only Jade and Jeremy testified. Jade testified that she and Jeremy had two male children, one seven and the other almost a year old. She testified that she wanted the trial court to determine whether she could move with the children so that she could obtain her nurse practitioner degree and be closer to supportive family. Jade explained that she had two clinical semesters left to complete her nurse practitioner degree, although she is not currently in the program because she was taking a break from school due to the divorce. She testified that at that time she could not afford it, learned she was pregnant, and could not get a provider to complete her clinicals. She stated that it would be easier to locate a provider that would allow her to do clinicals in Smith County because she had connections through her brother-in- law, who is chief of surgery at a hospital in Tyler, and her sister, who is a nurse practitioner. Jade testified that her entire family is in Smith County, and Jeremy’s family is close to that area, as well. She stated that Jeremy visits the area frequently especially during hunting season and holidays. Jade did not believe that living in Smith County would remove the children from Jeremy because he could continue to see them as scheduled in the standard possession order. According to Jade, she would meet Jeremy at a halfway point on Friday for their older son and then meet them on Sunday for Jeremy to spend time with the younger son. She proposed the standard possession order for the older son and a phase-in schedule for the younger 3 son that incrementally increased Jeremy’s possession. In the proposed schedule for the younger son, Jade suggested that Jeremy have possession of him on Sundays from noon to 6 p.m. until the age of twelve months, then increasing from 10 a.m. to 6 p.m. for the next six months and increasing to include time on Saturdays the next six months. The last phase, during the age of thirty months to three years old, the youngest son would be with Jeremy from 8 a.m. on Saturday to Sunday at 6 p.m. Jade stated that Jeremy had only spent two hours alone with their youngest son on two occasions for a total of four hours in one year. Jeremy had not asked to see the youngest son alone, and according to Jade, seemed content to visit him in her presence every Thursday for two hours. Jade testified that she is still breastfeeding the youngest son. Jade testified that Jeremy had standard possession of their oldest son on the first, third and fifth weekend and for two hours on Thursdays. She explained that she asked Jeremy for help to pick up their oldest son once when she was pregnant, and though he agreed, he was going to the beach around the time he needed to pick their son up, and she did not believe he had any intention of getting him. She stated that Jeremy had not offered to help her with the children. She testified that because Jeremy is not often helpful with the children, it would be beneficial to move to Smith County and have family help her. 4 Jade stated that she believed it to be in the children’s best interest to move and that she would make sure that Jeremy was in the children’s lives. Jade explained that she makes $1,000 every other week at her part-time job right now, and once she gets a nurse practitioner degree, the average salary range exceeds $100,000. On cross-examination, Jade testified that for the past six years, they have only lived in Hardin County and when the temporary orders were entered that gave Jeremy standard custody possession, Jeremy was living at the beach. Jade acknowledged that despite living at the beach, Jeremy exercised his visitation and attended their older son’s baseball and basketball games. She stated that although Jeremy missed two or three basketball games, he attended their oldest son’s martial arts testing. Jade recalled that Jeremy attended school events but was late for one martial arts testing and to a field day at the school. Jade stated that she works twenty hours a week at home, which allows her to attend the activities. She disagreed that Jeremy could not work elsewhere but testified they never chose to live in Smith County, where they were both from. She stated that it would be in the best interest of the children that they live 150 miles away from Jeremy and that the distance would not affect his ability to see the children. She testified that she understood that Jeremy proposed that when their youngest son turned one, he would visit on the same schedule as the older son. Under 5 her proposal, the youngest son would get thirty-two hours per month with Jeremy throughout 2024. Jade acknowledged that under her proposal, Jeremy would only spend eight hours with the youngest son on Christmas until the age of three, instead of the standard eight to ten days. Under Jade’s proposal, Jeremy would never have their youngest son on Thanksgiving Day. Jade testified that she is enrolled in UT Arlington’s online nurse practitioner program, and she did one clinical in Beaumont, but getting more clinicals would be difficult. She reiterated that she believed it would be in the children’s best interest to live as far as 175 miles away. According to Jade, she would not deny Jeremy access to the children and believed that Jeremy needed a phase-in schedule for the youngest son since he had only seen him twice for two hours without her. She asked the court for a transition possession order for the youngest son and a standard possession order for the older son. She stated that by the age of three, she expected the youngest son to be on the standard possession order. Jeremy testified that he lived in Sour Lake, Texas, in a home that his parents bought, and he planned to remain in that home after the divorce is final. Jeremy explained that he planned to purchase the home from his parents with proceeds from the sale of the beach house. He stated that there is no reason he could not do an expanded standard possession order. Jeremy acknowledged that he will be paying 6 maximum child support and paying for health insurance. He explained that he had to work locally to keep his job, and he worked Monday through Thursday, ten hours each day. He stated that he could exercise Thursday overnight visitation and take the children to school and/or daycare Friday morning. As for the older son, Jeremy was getting him Thursday through Sunday in the summer. He testified that Jade’s proposal would only allow him to spend six hours every Sunday with the younger son and does not promote a continued and close relationship between him and the boys. According to Jeremy, he made all the older son’s baseball practices except for those on Fridays during the time he lived in Crystal Beach; he assisted with coaching at every game and pitched at several games. If the children moved to Tyler, he would be unable to participate as much with sports or school activities. Jeremy stated that he currently has the standard possession order with his older son but needed more time with him. He explained that he has a nephew the same age, and the boys get together and play often. He testified that Jade’s proposed order regarding their youngest son does not allow them to bond, and he can care for the baby, including changing diapers and feeding him. He stated that because Jade was breastfeeding the baby, he had limited time with him, but once he is no longer breastfeeding, he would like more time. 7 Jeremy testified that he does not believe it is in the children’s best interest that they be allowed to live in Smith County. He noted that he wanted to see both boys as much as possible. According to Jeremy, he is from Carthage, and his parents still live there. He stated that he went there once to hunt and probably visited five- or six-times last year including holidays. He enjoyed time there with their older son and hopes to do the same with the younger son when he is older. He agreed that even though he has a standard possession order with the older son, Jade has an open-door policy and is good at co-parenting. Jeremy recognized that he will not have that luxury if Jade moves to Tyler. Jeremy acknowledged that he took the younger son twice for two-hour intervals each but had not asked for more time since Jade breastfeeds and does not have a breast pump. He stated that he did not attend Friday baseball practices even though he was off on Fridays because “they just messed around at the park[.]” Friday practices did not interfere with his social life, but gas was a factor since he was in Crystal Beach. Jeremy testified that he successfully changed diapers three or four times, though the first time he put the diaper on backwards. When the trial judge questioned Jeremy, Jeremy explained that he worked at ExxonMobil as a site manager for a mechanical integrity contractor that maintained and inspected equipment and piping, and he receives an annual salary of “150” and 8 gets one bonus annually. After proving the necessary facts for the divorce and closing arguments, the trial judge granted the divorce and stated that the geographical restrictions would be Hardin and Smith Counties upon Jade’s acceptance into a nurse practitioner program. The trial judge approved Jade’s proposed custody agreement regarding the younger son as long as that child is still breastfeeding until the age of eighteen months, at which time the standard possession order will be imposed for both children. The Final Divorce Decree stated that Jade, as a parent joint managing conservator, had the following right and duty: 1. the exclusive right to designate the primary residence of the children within Hardin County, Texas and contiguous counties and, conditioned upon Jade[]’s acceptance into a nursing practitioner program, Smith County, Texas, and contiguous counties[.] The trial court made Findings of Fact and Conclusions of Law. The following findings were made as to the geographic restriction: 18. At the time of the divorce, [Jade] and [Jeremy] were the parents of the [two male children at issue]. 19. Jade . . . and Jeremy . . . , are appointed joint managing conservators of the children. 20. Jade . . . has the right to designate the primary residence of the children. 21. [Jade] ha[s] two semesters, or 180 hours, of clinical experience from two different providers to complete in order to obtain her nurse practitioner’s degree. 9 22. [Jade] has considerable contacts to obtain clinical experience within the medical field in Smith County, and did not have as many contacts to obtain clinical experience in the Hardin County area. 23. [Jade]’s brother-in-law is Chief of Surgery at Christus Health in Smith County. 24. [Jade]’s sister is a practicing Nurse Practitioner in Smith County. 25. [Jade] had good faith to believe she could obtain clinical experience in Smith County, while obtaining such experience in the Hardin County area would be difficult. 26. [Jade]’s family of origin as well as her extended family resided in Smith County. 27. [Jade]’s children would have many cousins close to their age in Smith County. 28. [Jade]’s family would assist her in care and support of the children. 29. [Jeremy] has family close to that area, including his Mother, Father, and all of his extended family, minus two siblings. 30. [Jade] and [Jeremy] are both from the Smith County area and met in high school in that area. 31. [Jeremy] goes to the Smith County area frequently, in order to visit family, and also goes to that area to hunt frequently. 32. The older child, [], has been to the Smith County area multiple times. 33. [Jeremy] had been exercising a standard possession order, 1st 3rd and 5th weekends, Friday at 6:00 p.m. to Sunday at 6 p.m., with no overnights on Thursdays, during the pendency of the divorce. 34. [Jade] earns a salary of around $30,000 at the time of the final hearing. [Jade]’s salary would increase significantly if she could complete her nurse practitioner degree. 10 35. [Jeremy] resided in Galveston County, Texas during the pendency of the divorce, until one month prior to the final hearing, wherein he moved to Hardin County, Texas. 36. [Jade] provided evidence of her acceptance into a Nurse Practitioner’s program by filing such acceptance with the court on July 1, 2024. The following conclusions of Law were made regarding geographic restrictions and possession: 9. The court may order a geographic restriction that promotes the child’s stability, continuity and meaningful access to both parents. 10. The Court may order a geographic restriction that facilitates frequent and continuing contact between the child and the parents. 11. The Court may order a geographic restriction that serves the best interest of the child. 12. The geographic restriction of Hardin County and contiguous counties and Smith County and contiguous counties is in the best interest of the child. 13. The best interest of the child is the primary consideration of the Court in determining the issues of conservatorship and possession of and access to the child (Tex. Fam. Code Sect. 153.002) 14.The Court, in rendering an order for possession of a child under three years of age, was guided by the best interest of the child, taking into consideration: a. The care giving provided to the child before and during the current suit; b. The effect on the child that may result from separation from either party; 11 c. The availability of the parties as care givers and willingness of the parties to personally care for the child; d. The physical, medical, emotional, economic, and social conditions of the parties; e. The impact and influence of individuals, other than the parties, who will be present during periods of possession; f. The presence of siblings during periods of possession; g. The child’s need for continuity of routine; h. The location and proximity of the residence of the parties; i. The need for a possession schedule that incrementally shifts to a standard possession order with age, or the need for a schedule that shifts in that manner in another way; and j. Any other evidence of the best interest of the child. (Tex. Fam. Code Sect. 153.254). This appeal followed. On appeal, Jeremy challenges the Final Divorce Decree and argues that the record is factually insufficient to support the finding that the geographic restriction inclusion of Smith County and contiguous counties was in the best interests of the children under the Lenz factors and the Holley factors. Standard of Review We review complaints about a trial court’s conservatorship order in an appeal for abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (discussing in the context of a parental rights termination case); Gillespie v. Gillespie, 644 S.W.2d 12 449, 451 (Tex. 1982) (discussing standard of review in context of a divorce proceeding). A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to any guiding rules or principles. Quixtar, Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010); see also Gillespie, 644 S.W.2d at 451. “Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error [] but are relevant in assessing whether the trial court abused its discretion.” In re J.D.D., 242 S.W.3d 916, 920 (Tex. App.—Dallas 2008, pet. denied) (citations omitted); see also In re A.D.H., 979 S.W.2d 445, 446 (Tex. App.—Beaumont 1998, no pet.) (discussing the standard of review in context of custody modification proceeding). The best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002) (citation omitted). Trial courts have broad discretion to determine what is in a child’s best interest. Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.—Austin 2003, no pet.). Similarly, trial courts have broad discretion in determining whether to specify a geographic limitation on a child’s primary residence. In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.). “In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues.” Id. (citing Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex. App.—El Paso 1998, no pet.). “The 13 unchallenged findings of fact are binding on this Court unless the contrary is established as a matter of law or there is no evidence to support the finding.” See In re K.L.W., 301 S.W.3d at 428 (citation omitted). Analysis In his first issue, Jeremy argues that the trial court’s findings are insufficient because Jade’s reason for moving, securing clinical hours, would be similarly difficult in Smith County compared to Hardin County. He asserts that Jade did not struggle to secure clinical hours in Hardin County and progressed academically without any medical connections such as she has in Smith County. Jeremy contends that the record is factually insufficient to demonstrate that Jade would not reap the same economic benefit in Hardin County as Smith County and that Jeremy frequently travelled to the Smith County area to hunt or visit family. He argues that the move would negatively affect his relationship with the children by hindering visitation and communication, would not improve Jade’s financial status, and would negatively affect the older son’s relationship with his family and friends in Hardin County. In the Lenz case, the Texas Supreme Court explained the following factors were relevant considerations: reasons for and against the move; the effect the move would have on extended family relationships; its effect on visitation and communication with the non-custodial parent to maintain a full and continuous 14 relationship with the child; the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the non-custodial parent and child; and the nature of the child’s age, community ties, and health and education needs. See Lenz, 79 S.W.3d at 15-17. Although Lenz was a modification proceeding, the factors equally apply to this original suit involving the conservatorship in which the proposed custodial parent has proposed an intended relocation destination. See Morgan v. Morgan, 254 S.W.3d 485, 488 (Tex. App.—Beaumont 2008, no pet.) (“While Lenz was a modification proceeding and not an original proceeding, we find the factors applicable here as well.”). Because conservatorship determinations are intensely fact driven, the trial courts generally have wide latitude in determining what is in a child’s best interest. Gillespie, 644 S.W.2d at 451. Here, the trial court entered findings of fact and conclusions of law in support of its order. As stated above, the trial court found that Jade believed she could easily obtain clinical experience in Smith County compared to Hardin County, Jade’s salary would significantly increase upon completion of her nurse practitioner’s degree, both Jade and Jeremy are from the Smith County area and have family in or near the area, Jeremy frequents the area to visit family and hunt, Jeremy resided in Galveston County until one month before the final hearing and had been exercising a standard possession order, and the older son had been to Smith County multiple times. The trial court also concluded that permitting Jade to 15 move to Smith County and contiguous counties is in the children’s best interests. The trial court states in its findings and conclusions that it considered and balanced many factors including the care provided to the children, the effect of separation, the availability of the care givers and the need for routine, when determining the best interest of the children regarding conservatorship and possession. The trial court, as the fact finder in this case, is the sole judge of the credibility of the witnesses and weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). “This Court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court’s findings.” See In re K.L.W., 301 S.W.3d at 428 (citing Lindsey, 965 S.W.2d at 591). The record supports the trial court’s findings. Both Jade and Jeremy testified at trial. Jade testified that she is from Smith County, Jeremy is from the area, and both have family that still reside there. Jeremy indicated the same in his testimony. Jade added that Jeremy frequented the area during hunting season though Jeremy indicated that in the past year, he only hunted there once and visited five- or six- times including holidays. Jade testified that family connections in the medical field would assist her in obtaining clinical experience though she acknowledged she had already completed two clinicals in Hardin County. She stated that clinical experience is required to complete her nurse practitioner’s degree and that obtaining the degree 16 would significantly increase her salary. Jade also testified that Jeremy had been exercising the standard possession of the older son with no Thursday overnight visits. Jeremy acknowledged the visitation schedule and stated that now that he was living in Hardin County, he could exercise the Thursday overnight visitation. After reviewing the record, we conclude the trial court had sufficient evidence upon which to exercise its discretion and, based on the evidence on all relevant circumstances at the time of the bench trial, did not abuse its discretion in including Smith County and contiguous counties as a geographical restriction. We overrule issue one. Next, Jeremy argues that the inclusion of Smith County and contiguous counties is not in the children’s best interest under Holley. According to Jeremy, his relationship with his children is integral to their emotional needs and he had concrete plans to support the children in Hardin County. He asserts that these factors weigh against inclusion of Smith County and contiguous counties and that Jade failed to communicate to him that spending time with the younger son at Jade’s home was unhelpful and therefore should be excused. Generally, trial courts consider general factors relevant to the best interest of a child, such as (1) the child’s desires, (2) the child’s current and future physical and emotional needs, (3) any physical or emotional danger to the child in the present or future, (4) the parental abilities of the individuals involved, (5) the programs 17 available to those individuals to promote the child’s best interest, (6) the plans for the child by these individuals, (7) the stability of the home, (8) acts or omissions by a parent tending to show 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). Again, the record establishes that the trial court considered the applicable Holley factors and the record supports the trial court’s conclusions of law. Jade’s testimony regarding completion of her nurse practitioner’s degree, family assistance in the area, and Jeremy’s work and visitation schedule demonstrates that the trial court heard evidence to consider the stability of the home, the plans for the children, and the acts and omissions of the parents. See id. The record reflected that Jade’s educational needs would be met, she would have the support of her family, and that Jeremy would continue with the standard possession that he was currently exercising. The trial court also heard evidence that upon completing her nurse practitioner’s degree, Jade’s salary would increase significantly further promoting a stable home and her ability to provide for the children’s physical needs. Based on this evidence, we cannot say that the trial court abused its discretion in determining that the inclusion of Smith County and contiguous counties was in the best interests of the children. We overrule issue two. 18 Conclusion Having considered and overruled Jeremy’s arguments and issues, we affirm the trial court’s judgment. AFFIRMED. W. SCOTT GOLEMON Chief Justice Submitted on June 4, 2026 Opinion Delivered October 1, 2026 Before Golemon, C.J., Johnson and Chambers, JJ. 19