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Click here for the full text of this decision FACTS:After approximately eight years of marriage, Charles Matthew Gardner (Matt) filed a divorce petition. Denyie Lynn Gardner (Lynn) filed a counter petition. Each party sought custody of three children: A.M.G., C.G. and C.M.G. Lynn is the natural mother of all three children. Matt is the natural father of C.M.G., and he formally adopted A.M.G. in 1996. Matt is not C.G.’s father, natural or by adoption, although his name appears on C.G.’s birth certificate as the father. Before trial, the parties engaged in mediation and reached a settlement on numerous issues including joint managing conservatorship of all three children, right to establish primary residency of A.M.G., most property issues, and visitation terms. The parties tried the following unresolved issues to the court: 1. right to establish the primary residence of C.G. and C.M.G.; 2. responsibility for the cell phone bill; and 3. allocation of an income tax refund. After trial, the court named Lynn and Matt joint managing conservators of all three children in accordance with the mediated settlement agreement but gave Matt the right to establish C.G.’s and C.M.G.’s primary residence. The court ordered Lynn to pay the cell phone bill and awarded 75 percent of the income tax refund to Matt and 25 percent to Lynn. While the parties were drafting the final decree, a dispute arose regarding the terms of extended summer possession. After a hearing, the trial court altered the terms of the previous settlement agreement with regard to extended summer possession. Following entry of the final decree of divorce, Lynn requested findings of fact and conclusions of law, which the trial court entered. Lynn then appealed. HOLDING:Affirmed in part, reversed and remanded in part. First, Lynn argued that the evidence failed to rebut the statutory presumption preferring a parent as managing conservator for C.G., and thus the trial court erred in granting Matt the exclusive right to determine C.G.’s residence. The court stated that if a nonparent and a parent both seek managing conservatorship of a child, a trial court may not appoint the nonparent as managing conservator unless the nonparent submits sufficient proof that the appointment of the parent would not be in the best interest of the child, “i.e., the parent’s appointment would significantly impair the child’s physical health or emotional development.” The parties presented evidence at trial, the court stated, expounding the limitations and virtues of both Matt and Lynn, including their parenting skills, attentiveness to the children’s needs, lifestyle choices, habits involving alcohol and sexual practices. There was also testimony, the court stated, that Matt had made dramatic changes in his life since the parties’ separation. Witnesses testified Matt was a good father, was loving and affectionate with C.G. and C.M.G., and limited discipline to talking to the boys and sending them to their rooms. The court also heard evidence suggesting there was such estrangement between Matt and A.M.G. and such hostility by A.M.G. toward Matt that it was impracticable, if not impossible, for Matt to have either custody or possession of A.M.G. at that time. After reviewing the record, the court concluded the trial court had sufficient information to exercise its discretion and did not abuse that discretion in finding it was in C.G.’s best interest for Matt to be designated the conservator with the exclusive right to determine C.G.’s primary residence. Second, Lynn argued that the trial court abused its discretion by separating the children without a “clear and compelling reason.” But the court found that Lynn misstated the trial court’s burden. In fact, the court stated, the policy favoring keeping children together during periods of possession is simply a factor the trial court considers in deciding what is in the child’s best interest. Based upon the evidence recited in our review of issue one, the court held that legally and factually sufficient evidence supported the trial court’s finding that it was in the best interests of the children to award Matt the right to determine C.G.’s and C.M.G.’s primary residence. Third, Lynn argued that the trial court erred in altering the terms of extended summer possession agreed to during mediation. The parties’ mediated settlement agreement provided that Matt would have 42 days of extended summer possession of A.M.G. and Lynn would have the same with regard to C.G. and C.M.G. After trial but before the decree was signed, Matt filed a motion to modify alleging the mediated settlement agreement as it relates to summer possession is “unworkable, inappropriate, and not in the best interest of the children,” because there were not 84 days available in the summer. After a hearing, the trial court ruled summer possession would be equally split, with each party having the right to one weekend visitation during the other party’s summer possession period. The court, however, found none of the evidence presented by Matt established a material and substantial change since the signing of the mediated settlement agreement with regard to summer possession. Accordingly, the court reversed the trial court’s amendment to the parties’ mediated settlement. OPINION:Hilbig, J.; Angelini and Hilbig, J.J. CONCURRENCE:Stone, J., concurred without an opinion.

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