Maria Turrubiartes v. Jose Pablo Olvera

Opinion issued December 12, 2017 In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00322-CV ——————————— MARIA TURRUBIARTES, Appellant V. JOSE PABLO OLVERA, Appellee On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2014-70680 OPINION ON REHEARING We grant rehearing, withdraw our opinion and judgment dated June 1, 2016, and issue this opinion and judgment in their place. Because we have granted  Justice Huddle, who participated in the original decision, resigned her office on June 14, 2017, and did not participate in the opinion on rehearing. rehearing, the appellant’s motion for en banc reconsideration is moot. This appeal arises from a dispute between divorcing parents over the managing conservatorship of their children. The trial court awarded sole managing conservatorship to the father and possessory conservatorship to the mother. On appeal, the mother contends the trial court erred in denying her motion for new trial challenging that ruling. We hold that the trial court erred in denying the mother’s motion for new trial. We reverse the portion of the final decree of divorce appointing the father as sole managing conservator, affirm the remainder of the decree, and remand this case to the trial court for a new trial solely on the issue of conservatorship. BACKGROUND Maria Turrubiartes and Jose Pablo Olvera have three children, who were born before their marriage. The couple married in February 2013 and separated in October or November 2014, after Maria and a neighbor had an altercation. The altercation arose when Jose told the neighbor that the neighbor’s husband and Maria were having an extramarital affair. After the altercation with her neighbor, Maria left with the children. The trial court heard testimony from Maria and Jose as to conservatorship. No other witnesses testified and the parties introduced little documentary evidence. 2 Jose testified that Maria refused to tell him where she and the children lived after they separated. Jose said that Maria’s brother-in-law threatened to kill him if he tried to visit the children at their new home. Without telling Jose, Maria withdrew the children from the school they had attended in Tomball and enrolled them in a different one in Magnolia. Jose found out where the children were enrolled about a month later. He visited them there during lunch as often as twice a week in the year before trial. He did not see the children outside of school because he did not know their home address. Maria also told the school that Jose was not allowed to take them from the school. Had he known where the children lived, Jose said he still would not have been able to see them there given the brother-in-law’s threat. Jose further testified that he was the parent who helped the children with their homework before the separation because he can speak and read in English. He also said that he had taken them to the doctor. Jose denied that he ever laid his hands on Maria. He said ...

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