Child v. Leverton

• Decision Date: 21 September 2006
• Docket Number: No. 11-04-00141-CV.,11-04-00141-CV.
• Citation: 210 S.W.3d 694
• Parties: Russell Brent CHILD, Appellant, v. Hillary Brandise LEVERTON, Appellee.
• Court: Texas Court of Appeals

Page 694

210 S.W.3d 694

Russell Brent CHILD, Appellant, v. Hillary Brandise LEVERTON, Appellee.

No. 11-04-00141-CV.

Court of Appeals of Texas, Eastland.

September 21, 2006.

Cynthia Rucker Allen, Whitten, Hacker, Hagin, Anderson, Allen & Self, P.C., Abilene, for appellant.

Celia D. Trimble Boone, Abilene, for appellee.

Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.

OPINION

JIM R. WRIGHT, Chief Justice.

This is an appeal from the trial court's order denying Russell Brent Child's motion for enforcement and granting in part Hillary Brandise Leverton's petition to modify the parent-child relationship. We affirm.

On September 18, 2002, Child and Leverton entered into a mediated settlement agreement in their divorce case. At that time as well as at the time the trial court entered the decree of divorce, Leverton and the parties' two children lived in Taylor County. In accordance with the mediated settlement agreement, the February 25, 2003 divorce decree contained language restricting Leverton's right to establish the legal residence of the children, A.C. and B.C. The divorce decree provides that Leverton shall have the exclusive right:

[T]o determine and establish the children's legal residence and domicile within Denton and Taylor Counties, Texas, through May 2003; thereafter, the right to determine and establish the children's legal residence and domicile within Denton and Tarrant Counties, Texas; provided, that determining and establishing such residence within Tarrant County shall be east of Highway 1220 and north of Highway 183.

On May 15, 2003, Leverton filed a petition to modify the geographical restrictions in the decree.¹ On November 17, 2003, Child filed a motion for enforcement. He alleged that Leverton had failed to comply with the divorce decree because she had not established the children's residence in either Denton County or Tarrant County. Child asked the trial court to hold Leverton in contempt and to require Leverton to move the children from Taylor County to either Denton or Tarrant County. On February 9, 2004, the trial court held a hearing on the motion and issued its order on March 24, 2004. The trial court found that the terms of the order which Child sought to enforce were "not specific enough" for the remedy sought. In its order, the trial court stated:

[I]t is in the best interest of the children that the residence restriction as contained in the Final Decree of Divorce be modified to the extent that any time requirement for the return of HILLARY BRANDISE LEVERTON be removed. IT IS FURTHER THEREFORE ORDERED, ADJUDGED, AND DECREED that HILLARY BRANDISE LEVERTON shall be the parent Joint Managing Conservator with the exclusive right to designate the primary residence of the children within Taylor and/or Denton and/or Tarrant Counties, Texas, provided that in determining and establishing such residence within Tarrant County, Texas, said residence shall be East of Highway 1120 and North of Highway 183.

It is from this order that Child appeals.²

In his first point of error, Child argues that the trial court erred in finding that the order was not specific enough to be enforced. In his second point of error, Child contends that the trial court erred in failing to enforce the provisions regarding designation of his children's residence in Denton or Tarrant Counties. In his third point of error, Child maintains that the trial court abused its discretion when it found that there had been a material and substantial change in circumstances since the date of the agreement.

We will first address Child's third point of error. We review a trial court's order modifying conservatorship under an abuse of discretion standard. See Wyatt v. Wyatt, 104 S.W.3d 337 (Tex. App.-Dallas 2003, no pet.); see also Jenkins v. Jenkins, 16 S.W.3d 473 (Tex.App.-El Paso 2000, no pet.). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). While legal and factual sufficiency issues are not independent grounds of error in cases of this nature, they are factors which can be considered in determining whether an abuse of discretion has occurred. In re T.D.C., 91 S.W.3d 865, 872 (Tex.App.-Fort Worth 2002, pet. denied).

An appellate court makes a two-prong inquiry when it determines whether legal or factual insufficiency has resulted in an abuse of discretion: (1) whether the trial court had sufficient information upon which it might exercise its discretion and (2) whether the trial court erred when it applied that discretion. Id. The sufficiency review is related to the first inquiry. If it is revealed in the first inquiry that there was sufficient evidence, then we must determine whether the trial court made a reasonable decision, and that involves a conclusion that the trial court's decision was neither arbitrary nor unreasonable. Id.

In analyzing a legal sufficiency or no-evidence issue, an appellate court must consider the evidence in the light most favorable to the challenged finding and must indulge every reasonable inference that would support it. A reviewing court must credit favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless a reasonable fact-finder could not. The appellate court must determine whether the evidence at trial could enable reasonable and fair-minded people to find the facts at issue. A no-evidence challenge may be sustained only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005).

When we consider legal sufficiency in this context, if there is any probative evidence which supports the trial court's finding, then there is no abuse of discretion. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex. App.-El Paso 2002, no pet.). This remains true even though we might have found the issue otherwise; we cannot substitute our judgment for that of the trial court. Id.

Child is also complaining about the factual sufficiency of a finding upon which he did not have the burden of proof. An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in making this determination. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998).

Because the divorce decree in this case was based upon a mediated settlement agreement, Leverton was required to establish that any material change in circumstances occurred subsequent to the mediation. TEX. FAM.CODE ANN. § 156.101 (Vernon Supp.2006). The Family Code requires proof of a material and substantial change of circumstances because of res judicata considerations and the State's desire to prevent constant relitigation with respect to children. See Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.). Leverton had the burden of proof. This required her to produce evidence comparing the circumstances that existed at the time of the parties' mediation agreement with the circumstances at the time of the modification hearing. See id. at 315; see also London v. London, 192 S.W.3d 6, 15 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).

The best interest of the children is always the trial court's primary consideration. In re T.D.C., 91 S.W.3d at 873. But, when a party asks the trial court to modify the residency restrictions contained in the divorce decree, the existing residency provisions are res judicata of the children's best interest unless and until it is established that there has been a material and substantial change in circumstance. In re M.N.G., 113 S.W.3d 27, 33-34 (Tex. App.-Fort Worth 2003, no pet.).

Both of the children attend school at St. John's Episcopal Church in Abilene. A.C. attended there at the time of the mediated settlement; B.C. began attending there later. Jeannie Stark, the "principal" of the school testified. Stark testified that A.C. initially was a difficult child at St. John's. He had a hard time being structured and having a routine. He would also "act out" from time to time. Stark was asked whether A.C. had changed since he first came to St. John's. Her testimony was that he had become a happier child, was acting out less than before, was very focused, loved to learn, and had "grown up." Stark shared her concern that A.C. could not handle the change. She believes that stability is important.

Dr. Stephen M. Osborn is a clinical psychologist with some twenty-seven years of practice. He was counseling with Leverton and the two children at the time of the mediated settlement agreement and continued to see them at the time of the hearing on the motion to modify. Dr. Osborn originally diagnosed A.C. with an "anxiety disorder and Attention Deficit Disorder." Since Dr. Osborn began seeing A.C., he had seen improvement in A.C. as a result of schooling, structure, counseling, and medication. Dr. Osborn testified that A.C. needed stability, structure, and security. Dr. Osborn also testified that moving A.C. would involve "negative adjustments" by changing his routine and structure; it would be "advisable" for A.C. to remain in Abilene. Principal Stark agreed with Dr. Osborn's opinion that A.C. needed stability.

Leverton testified that if she moved it would be more difficult for her to obtain a music education degree because she would lose hours...