Chance v. Chance

Decision Date26 October 1995
Docket NumberNo. 09-93-260,09-93-260
Citation911 S.W.2d 40
PartiesDonna Rene CHANCE, Appellant, v. Gene Ray CHANCE, Appellee. CV.
CourtTexas Court of Appeals

Pamela E. George, Houston, for appellant.

Bruce Neill Smith, Beaumont, for appellee.

Before WALKER, C.J., and BROOKSHIRE 1 and BURGESS, JJ.

OPINION

WALKER, Chief Justice.

This modification of child custody case focuses upon the future welfare of two young boys, Zachary and Matthew, both currently under the age of six years. Appellant, Donna Rene Chance, is the mother and appellee, Gene Ray Chance, is the father. Mr. Chance brought suit to modify prior judgment of the trial court which named Donna Rene Chance as the managing conservator and Gene Ray Chance as the possessory conservator.

The case was tried before a jury which returned its verdict naming Gene Ray Chance as sole managing conservator of the children. The trial court signed its modification order on June 15, 1993. This appeal has been timely perfected with appellant seeking remand for new trial, with additional request that she be returned to her pre-trial status as managing conservator pending new trial.

Appellant's portrayal of the case is: "Quite simply, this case is a tragedy--not only for DONNA, a mother who has lost custody of her children, but also for Zachary and Matthew who have been torn from their mother, her protection, and love."

Appellee's portrayal is: "The jury in this case meted out justice. They sifted the facts and made a reasoned, just decision."

At the time of the original divorce between Donna Rene Chance and Gene Ray Chance, Donna Chance was named the sole managing conservator of the two minor children. Section 14.08(c)(1), Texas Family Code, provides:

After a hearing, the court may modify an order or a portion of a decree that: (1) designates a sole managing conservator if:

(A) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order or decree have materially and substantially changed since the date of the rendition of the order or decree to be modified; and

(B) the retention of the present sole managing conservator would be injurious to the welfare of the child; and

(C) the appointment of the new sole managing conservator would be a positive improvement for the child; ....

TEX.FAM.CODE ANN. § 14.08(c)(1) (Vernon Supp.1995).

Obviously, it is no small step, from an evidentiary standpoint, to effectively preponderate, conjunctively, the three requirements of Section 14.08(c)(1). This is especially so in situations such as the present where the original Judgment of Divorce was signed on the 26th day of August, 1991, and modification of that judgment appointing Donna Rene Chance as sole managing conservator is sought to be changed less than one year after entry of judgment. Appellee, Gene Ray Chance filed his Amended Motion to Modify in Suit Affecting the Parent-Child Relationship, on August 10, 1992. It is incumbent upon this Appellate Court to determine whether or not Gene Ray Chance met his burden of establishing the three required elements of Section 14.08(c)(1) by a preponderance of the evidence as properly instructed by the trial court. Regarding the burden of proof, the trial judge below provided the jury with the following instruction:

Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be based on a preponderance of the evidence unless you are instructed that the answer must be based on clear and convincing evidence. If you do not find that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term "preponderance of the evidence" means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case. Whenever a question requires an answer other than "Yes" or "No", your answer must be based on a preponderance of the evidence unless you are instructed that the answer must be based on clear and convincing evidence.

The trial court gave no special instruction on any jury question requiring evidence of a clear and convincing nature. Nor, does appellant or appellee contend for application of a different standard of evidentiary proof than that of "a preponderance of the evidence." Thus, our review of this case and the record Appellant brings to this Court eleven points of error. We choose to address appellant's point of error nine at the inception since point of error nine addresses the "no evidence" and "insufficiency of the evidence" questions.

before us shall be pursued with recognition of appellee's burden of proving by a preponderance of the evidence, conjunctively, the three requirements of Section 14.08(c)(1).

Point of error nine contends:

A. There is no evidence to support submission of jury questions one, two, and four.

B. There is no evidence to support the jury's response to questions one, two, and four.

C. The evidence is insufficient to support the finding of the jury in response to questions one, two, and four.

D. The finding of the jury in response to questions one, two, and four is so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust.

E. The verdict included conflicting findings; specifically that Gene should be appointed sole managing conservator, while at the same time the jury found that Gene had engaged in acts that were emotionally or physically endangering to the children.

Appellant correctly contends that Gene Chance had the burden of proving that there had been a material and substantial change since the date of the original judgment, and that the retention of Donna Chance as managing conservator would be injurious to the welfare of the children, and that the appointment of a new sole managing conservator would be a positive improvement for the children. However, item "D" of appellant's point of error nine constitutes a misapplication of the burden of proof.

A complaint that a finding is against the great weight and preponderance of the evidence is proper where appellant had the burden of proof and is thus attacking the factual sufficiency of a failure to find on a particular issue. Recognizing that appellee, Gene Chance had the burden of proof, we shall disregard item "D" of appellant's point of error nine.

Paragraphs A and B of appellant's point of error nine constitute "no evidence" attacks upon the record. Our scope of review requires that we consider only the evidence and reasonable inferences that tend to support the findings and disregard all evidence and inferences to the contrary. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986), cert. denied, 498 U.S. 847, 111 S.Ct. 135, 112 L.Ed.2d 102 (1990); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985).

"No evidence" points of error must be sustained when the record discloses (1) a complete absence of a vital fact; (2) the court is barred by rules of law on evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. See Juliette Fowler Homes, Inc. v. Welch Associates, Inc. 793 S.W.2d 660, 666 n. 9 (Tex.1990); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App.--Houston [1st Dist.] 1988, no writ); Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 288 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361, 364-368 (1960).

Where there exists any evidence of probative force or nature to support a finding, the "no evidence" point must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). Furthermore, where there is more than a scintilla of the evidence in support of a finding, a "no evidence" challenge must fail. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

Six questions were submitted to the jury as follows:

QUESTION NO. 1

Should DONNA RENE CHANCE be removed as sole managing conservator and Answer "Yes" or "No" for each child.

GENE RAY CHANCE be appointed sole managing conservator of the children named below?

ZACHARY RAYMOND CHANCE YES

MATTHEW LOGAN CHANCE YES

QUESTION NO. 2

Has Mother committed acts that are emotionally or physically endangering to the minor child, Zachary Chance?

Answer "yes" or "no".

ANSWER: YES

QUESTION 3

Has Father committed acts that are emotionally or physically endangering to the minor child, ZACHARY CHANCE?

Answer "Yes" or "No."

ANSWER: YES

QUESTION NO. 4

Has Mother committed acts that are emotionally or physically endangering to the minor child, Matthew Chance?

Answer "yes" or "no".

ANSWER: YES

QUESTION 5

Has Father committed acts that are emotionally or physically endangering to the minor child, MATTHEW CHANCE?

Answer "Yes" or "No."

ANSWER: YES

QUESTION 6

Was Father's Motion to Modify filed frivolously or designed to harass Mother?

Answer "Yes" or "No."

Answer: No

We now review only the evidence and reasonable inferences which tend to support the jury's findings, disregarding all evidence and inferences to the contrary.

The judgment of divorce was signed August 26, 1991, wherein appellee Gene Chance, was named Possessory Conservator of the children and awarded certain rights of visitation. Pursuant to the judgment of divorce, Gene Chance was allowed to exercise visitation of the two children on Wednesdays of each week during the regular school term from 6:00 p.m. until 8:00 p.m., beginning on the 28th day of August, 1991. According to the record, on August 28, 1991, when appellee arrived to pick up his two sons, he was met by Mr. Bill Ramsey,...

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