Ditraglia v. Romano

• Decision Date: 30 November 2000
• Citation: Ditraglia v. Romano, 33 S.W.3d 886 (Tex. App. 2000)
• Parties: (Tex.App.-Austin 2000) David P. Ditraglia, Appellant v. Anna Marie Romano, Appellee NO. 03-00-00389-CV
• Court: Texas Court of Appeals

Page 886

33 S.W.3d 886 (Tex.App.-Austin 2000)

David P. Ditraglia, Appellant v.Anna Marie Romano, Appellee

NO. 03-00-00389-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

November 30, 2000

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 93-15405, HONORABLE MARGARET COOPER, JUDGE PRESIDING

Before Justices Jones, Kidd and Yeakel.

Mack Kidd, Justice.

David P. Ditraglia("Ditraglia") seeks reversal of the district court's order denying his motion for modification of joint managing conservatorship as it relates to his daughter, Maya Rose Ditraglia("Maya").We will affirm.

BACKGROUND

Ditraglia and Anna Marie Romano("Romano") divorced in 1994.The original divorce decree, filed on March 1, 1994, authorized joint managing conservatorship of their two daughters, Elena Catherine Ditraglia("Elena") and Maya.At the time of the divorce, Elena was nine years old and Maya was five years old.In addition to joint custody, possession was also split between the parents, both of whom lived in Austin, where the children attended private school.Ditraglia later moved to Wimberley.On July 1, 1998, pursuant to agreement between the parents, the district court rendered an order modifying the divorce decree.The order did not change the original conservatorship orders, but specified that "Maya Rose Ditraglia will attend Matthews Elementary School in the Austin Independent School District beginning August 1, 1998," and provided that when both children attained high school age, they would be able to choose which high school they would attend.More precisely, "if the children specifically request a desire to attend high school in the Wimberley School District, mother will not object and in like manner, if the children express a specific desire to attend high school in the Austin Independent School District, then father will not object."Upon reaching high school age, Elena elected to attend high school in Wimberley, which necessitated a possessory change from Romano's home to Ditraglia's household.¹Maya, by then a nine-year-old third-grader, became distressed about being separated from her sister, with whom she had a close relationship.Ditraglia filed a petition to modify the prior possession order, conservatorship duties, and child support with respect to both Elena and Maya.Romano did not object to the possession modification pertaining to Elena, but contested the changes as to Maya.Upon completion of the appropriate hearings, the district court modified the order as to the possession of Elena, but refused any modification as to Maya.Ditraglia appeals.Ditraglia argues that the trial court abused its discretion when it denied the motion to modify the prior possession order with respect to Maya.

DISCUSSION

The Texas Family Code allows the court to modify the terms and conditions of a joint managing conservatorship 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 the existing circumstance; 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(West 1996).The party moving to modify the joint conservatorship order has the burden of proving that the requirements have been met.Considine v. Considine, 726 S.W.2d 253, 255(Tex. App. Austin 1987, no writ).

Upon review, the district court is given wide latitude in determining the best interest of the child and will be reversed in such cases only when it has abused its discretion.Gillespie v. Gillespie, 644 S.W.2d 449, 451(Tex.1982).A district court abuses its discretion only when it acts in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principles.Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42(Tex.1985).This Court may not reverse for abuse of discretion merely because we disagree with a decision of the district court.Id. at 242.

In its amended findings of fact and conclusions of law, the district court found that: (1) there had been no material or significant change in circumstances of the children or their parents; (2) the previous order had not become unworkable or inappropriate, with respect to Maya; and (3) modification of the order would not be in Maya's best interest.SeeTex. Fam. Code Ann. § 156.202.Ditraglia failed to meet his burden of proof as the moving party, with respect to Maya.SeeConsidine, 726 S.W.2d at 255.On appeal, Ditraglia argues that the current conservatorship order pertaining to Maya has become unworkable or inappropriate and is against her best interest.

Unworkable or Inappropriate

The court may modify the terms and conditions of a joint managing conservatorship if the order has become unworkable or inappropriate under the existing circumstances.Tex. Fam. Code Ann. § 156.202(1)(B).An order has become unworkable or inappropriate when compliance with its terms detrimentally affects the health, education, and welfare of the child.Bohls v. Bohls, 188 S.W.2d. 1003, 1005(Tex. Civ. App. Austin 1945, no writ)(modifying possession because previous order had caused child noticeable nervousness, difficulty in eating and sleeping, and inability to adequately complete school work).Courts have also ruled that changed circumstances that would injuriously affect the child's best interest or create an unstable environment for the child also may render a possession order unworkable or inappropriate.SeeBrown v. Brown, 500 S.W.2d 210, 215-16(Tex. Civ. App. Texarkana 1973, no writ)(changing possession because mother had mentally and physically abused her children);see alsoEason v. Eason, 860 S.W.2d 187, 190-91(Tex. App. Houston[14th Dist.]1993, no writ)(holding that child moving nine times within four years and mother's cohabitation with two men out of wedlock detrimentally affected child's welfare and justified possession modification).

Ditraglia has not asserted facts that show detriment to Maya's health, education, and welfare.Rather, he presents evidence that the previous order has become unworkable or inappropriate for him due to additional time and expense incurred since his move to Wimberley.Although Maya may miss Elena when they are not together, there is no evidence that those feelings have detrimentally affected her health or welfare.She is still doing well in school.She appears happy when playing with friends and is now more outgoing in class than when she began attending Matthews Elementary.Ditraglia testified in the district court that when he has possession of Maya, it is necessary for him to wake her at 5:00 a.m., and she is gone from the house for twelve to fourteen hours on weekdays due to travel between Wimberley and her school in Austin.He asserts that it is not in Maya's best interest for her to maintain such a schedule, but no evidence was presented to show that her routine has detrimentally affected her health or welfare.

Furthermore, Ditragila alleges that there was no evidence showing that the current order was workable; however, this is not the standard.The party seeking to modify the order has the burden to show that the present order is unworkable.Considine, 726 S.W.2d at 255."Under the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion."Doyle v. Doyle, 955 S.W.2d 478, 479(Tex. App. Austin 1997, no pet).Since Ditraglia has not presented evidence that would impeach the district court's findings, we are bound to...