A.D.H., In Interest of, 09-97-382

• Decision Date: 19 November 1998
• Docket Number: No. 09-97-382,09-97-382
• Citation: 979 S.W.2d 445
• Parties: In The Interest Of A.D.H. and S.J.H. CV.
• Court: Texas Court of Appeals

Page 445

979 S.W.2d 445

In The Interest Of A.D.H. and S.J.H.

No. 09-97-382 CV.

Court of Appeals of Texas Beaumont.

Submitted Oct. 7, 1998.

Decided Nov. 19, 1998.

Liz Mobley, Mobley Law Firm, Conroe, for appellant.

Elizabeth Woodward, The Woodlands, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

This is an appeal from an order by the trial court denying a motion to modify conservatorship filed by appellants Alvin Henley, Jr. and Doris Henley. In their February 1997 motion, Alvin and Doris, the children's paternal grandparents, sought to modify a portion of the March 1995 divorce decree naming Sheri Henley, the children's mother, and Alvin, Doris, and their son Perry Henley, the children's father, as joint managing conservators of A.D.H. and S.J.H. Under the agreed divorce decree, Sheri was appointed the primary joint managing conservator, and Alvin, Doris, and Perry were named the secondary "Co-Joint Managing Conservators." The modification suit was a bench trial at which Sheri and Perry represented themselves pro se.

The burden of proof by the movant in a motion to modify conservatorship is by a preponderance of the evidence. See TEX. FAM.CODE FAM.CODE ANN. § 105.005 (Vernon 1996); Warchol v. Warchol, 853 S.W.2d 165, 168 (Tex.App.--Beaumont 1993, no writ). An appeal from a trial court's decision to grant or deny a motion to modify involves an abuse of discretion standard. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.--Austin 1997, no writ). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). Under the abuse of discretion standard, legal and factual sufficiency of the evidence, although not independent grounds for asserting error, are relevant factors in assessing whether the trial court abused its discretion. D.R. v. J.A. R., 894 S.W.2d 91, 95 (Tex.App.--Fort Worth 1995, writ denied). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate justice in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). "[T]he trial court is in the best position to observe the demeanor and personalities of the witnesses and can 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record." Warchol v. Warchol, 853 S.W.2d at 167-68 (quoting Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.--Dallas 1981, no writ)). Consequently, an abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.--Houston [1st Dist.] 1996, no writ). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.

There is a strong presumption under Texas law that the best interest of a child is served if a natural parent is awarded custody. See Brook v. Brook, 881 S.W.2d 297, 299 (Tex.1994); TEX. FAM.CODE ANN. § 153.131(a) (Vernon 1996) (formerly TEX. FAM.CODE ANN. § 14.01(b)(1)). Section 153.131(a) statutorily provides, as did its predecessor, for appointment of the parent or parents as sole managing conservator or joint managing conservators unless the court finds the appointment would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. In Brook, the Texas Supreme Court held § 14.01 applied only in those situations in which a non-parent sought custody in lieu of a natural parent. Brook, 881 S.W.2d at 299. Here, the grandparents, who are already co-joint managing conservators, are not seeking custody in lieu of a natural parent. Instead, Doris and Alvin seek to modify the original decree by changing the designation of the primary joint managing conservator from Sheri to themselves and by changing Perry's visitation rights to eliminate the drug testing requirement. ¹ Although the parental presumption is a factor to consider, it does not take precedence in the instant case over the requirements of modification as set out in TEX. FAM.CODE ANN. § 156.202 (Vernon 1996). See In Interest of Ferguson, 927 S.W.2d 766, 768-69 (Tex.App.--Texarkana 1996, no writ). The test for appointment of a parent and a non-parent as joint managing conservator is still the best interest of the child. Brook, 881 S.W.2d at 299-300.

The Texas Family Code sets out the requirements for modifying the terms and conditions of a joint conservatorship:

§ 156.202. Modification of Terms and Conditions of Joint Managing Conservatorship.

The court may modify the terms and conditions of a joint conservatorship order if:

(1)(A) the circumstances of the child or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order; or

(B) the order has become unworkable or inappropriate under existing circumstances; and

(2) a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child.

TEX. FAM.CODE ANN. § 156.202 (Vernon 1996).

The Family Code also provides for a modification of visitation rights in § 156.301.

§ 156.301. Grounds for Modification of Possession and Access

The court may modify an order that sets the terms and conditions for possession of or access to a child or that prescribes the relative rights, privileges, duties, and powers of conservators if:

(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the rendition of the order;

(2) the order has become unworkable or inappropriate under existing circumstances;

(3) the notice of change of a conservator's residence required by Chapter 153 was not given or there was a change in a conservator's residence to a place outside this state; or

(4) a conservator has repeatedly failed to give notice of an inability to exercise possessory rights.

TEX. FAM.CODE ANN. § 156.301 (Vernon 1996).

We note that the record contains no findings of fact or conclusions of law. Thus, it is implied the trial court made all necessary findings of fact to support its judgment. Thompson v. Thompson, 827 S.W.2d 563, 567 (Tex.App.--Corpus Christi 1992, writ denied).

In their motion to modify, appellants pleaded the following as grounds for changing the designation of the primary joint managing conservator: the environment of the present primary conservator had endangered the children's physical health and impaired their emotional development; ² a change in the primary conservator would be in the best interest of the children; and the circumstances of the children or the joint managing conservators had materially and substantially changed since the entry of the order to be modified. Their motion also sought modification of possession or access to the child by claiming that the modification would be in the children's best interest and that the circumstances of the children or a person affected by the order to be modified had materially and substantially changed.

In point of error one, appellants contend the "children's condition has changed materially and substantially since the prior order." ³ To show a change in the children's condition, they primarily direct us to Sheri's lifestyle and conduct. We look to the record for evidence on this issue.

Appellants first presented evidence from school officials concerning A.D.H.'s absences from school. In the 1996-97 school year, she was enrolled in Anderson Elementary and Hailey Elementary in the Conroe Independent School District, Porter Elementary School in Porter, Texas, and Williams Elementary School in the Magnolia Independent School District. The testimony presented by school officials covered the period from August 21, 1996, through March 17, 1997, during which time period A.D.H. was absent eleven days. Although one of these witnesses testified that early childhood education is important, she also acknowledged pre-kindergarten and kindergarten are not mandatory.

Other witnesses for appellants included Henry Trammell, his mother Claudine Trammell, his sister Teresa Trammell, and appellants themselves. Henry Trammell testified he dated and lived with Sheri from March through December 1996. He stated he saw Sheri using dope a few months prior to trial; at the time he saw the drug use, she was pregnant. In describing her drug habit, he testified that during the time he lived with her, she was "doing" cocaine on the weekend and marijuana on a daily basis most of the time. Henry admitted he too had used cocaine and pills.

Henry also recounted incidents showing Sheri's alleged tendency toward violence and erratic behavior. He declared she cut him across the chest with a screwdriver on one occasion, because he was playing music at a friend's house. On another occasion, while he was driving in Louisiana, he claimed she jerked the wheel, moving the car into the lane of an oncoming eighteen wheeler, causing the truck to swerve and stop. According to Henry, drugs prompted this behavior. Sheri denied his allegations and claimed he was hitting her in the face at the time of the truck incident. In addition, she alleged that Henry lied all the time and was, in fact, a compulsive liar. He, on the other hand, claimed she was the compulsive liar. Their testimony conflicted.

Henry also testified regarding Alvin's and Doris's home environment. "The house is always clean, and they don't fight and carry on or nothing like that." From Henry's perspective, Doris and Alvin appeared to love the children and their home would be a good environment for them.

Doris Henley recounted events which affected the girls since the divorce...