Ferguson, In Interest of

• Citation: 927 S.W.2d 766
• Decision Date: 30 July 1996
• Docket Number: No. 06-96-00030-CV,06-96-00030-CV
• Parties: In the Interest of Mark William FERGUSON and Randi Elizabeth Ferguson, minor children.
• Court: Court of Appeals of Texas

Page 766

927 S.W.2d 766

In the Interest of Mark William FERGUSON and Randi Elizabeth

Ferguson, minor children.

No. 06-96-00030-CV.

Court of Appeals of Texas,

Texarkana.

Submitted July 30, 1996.

Decided July 30, 1996.

Diane M. Fitzpatrick, Longview, for appellant.

John G. Troy, Jr., Longview, for appellee.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

CORNELIUS, Chief Justice.

The principal question we must decide in this appeal is whether the statutory presumption favoring the appointment of a parent as managing conservator of a child controls over the requirements to modify a custody decree in a proceeding by a noncustodial parent against nonparents to regain custody of the child. We conclude that it does not.

Deana Ferguson (now Wiener) and Eric Ferguson were married in 1988 and had their first child, Mark William, in February of 1989. In October of 1989, the couple separated and Mr. Ferguson filed for divorce. Shortly after Mr. Ferguson filed for divorce, Mrs. Ferguson learned she was pregnant with their second child, Randi Elizabeth, who was born July 2, 1990. Mr. Ferguson's parents, Jerry and Ginger Ferguson, intervened in the divorce and sought custody of the children. An agreed decree of divorce was rendered on October 1, 1990, naming Mrs. Wiener the sole managing conservator and the grandparents as possessory conservators.

After Mrs. Wiener finished high school, she entered Kilgore College and worked part-time. While she was at work or school, her mother took care of the children. Mr. Ferguson entered the military after the divorce and has lived in Germany for the past five years. Mrs. Wiener's mother began having health problems, and in April 1992, she was no longer able to help with the children. Mr. and Mrs. Jerry Ferguson, the paternal grandparents, began taking care of the children while their former daughter-in-law was at school or work. In late 1993, Mrs. Wiener told the grandparents she was relocating to Houston and was taking the children with her. The Fergusons responded with a suit to modify conservatorship. The trial court held a hearing on the motion. The court named the grandparents managing conservators and named Mrs. Wiener possessory conservator.

Shortly before a year passed, Mrs. Wiener filed a motion to modify, seeking to be named managing conservator of the children, now ages five and six. The matter was tried to the court in November 1995. The court denied Mrs. Wiener's motion, even though it found that her circumstances had materially and substantially changed, that she had remarried, was employed, was capable of raising her children, and could provide some stability in the children's lives. The court further found that if the motion to modify had been an original custody proceeding involving the mother and the grandparents, the court would appoint Mrs. Wiener managing conservator pursuant to TEX.FAM.CODE ANN. § 153.131 (Vernon 1996) (the presumption favoring parents as managing conservators). The court found that in August 1994, Mrs. Wiener entered into an agreement that constituted a voluntary relinquishment of primary possession of the children to the grandparents. The court also found that Mrs. Wiener had failed to show that it would be a positive improvement for the managing conservatorship to be changed, as is required by TEX.FAM.CODE ANN. § 156.101(a)(2) (Vernon 1996). The court concluded that the parental presumption under Section 153.131 was a factor to consider but did not control over the requirement of Section 156.101(a)(2) of the Family Code that the movant must show that a positive improvement for the children would result from a change of conservatorship.

Mrs. Wiener first contends that the trial court erred in failing to apply the parental presumption in this proceeding.

A court may modify an order naming a child's managing conservator if the circumstances of the child, the managing conservator, or possessory conservator have materially and substantially changed since the date of the earlier order's rendition and if the appointment of the new managing conservator would be a positive improvement for the child. TEX.FAM.CODE ANN. § 156.101(a).

The parental presumption is found in TEX.FAM.CODE ANN. § 153.131. That section provides that unless the court finds that appointment of the parent would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development, the court shall appoint a parent sole managing conservator. The court is to presume that appointing the parent as sole managing conservator is in the child's best interest. The presumption is rebuttable.

The courts that have considered the exact issue before us have concluded that the requirements of modification as set out in TEX.FAM.CODE ANN. § 156.101 are not subordinated to the parental presumption. As stated by the Supreme Court in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955),

Although this presumption should be considered by the trial judge in weighing the evidence, it cannot be controlling in the face of a final judgment to the contrary, and, whatever effect such a presumption may have in an original custody action, it cannot control a suit to change custody.

In the cases of Hogge v. Kimbrow, 631 S.W.2d 603 (Tex.App.--Beaumont 1982, no writ), and Allen v. Salinas, 483 S.W.2d 289 (Tex.Civ.App.--El Paso 1972, no writ), the courts made holdings similar to that in Taylor v. Meek, supra. In supporting their decisions on this issue, the courts have emphasized the policy that, because a change of custody disrupts the children's living arrangements and the channels of their affection, a change should be made only when the trial court is convinced that the change will be a positive improvement for the children.

Mrs. Wiener argues, however, that the 1987 amendment to the parental presumption strengthened the presumption to the point that it now should control over the modification requirements. The Supreme Court has stated that the amendatory language greatly strengthened the presumption and imposed a heavy burden on a nonparent. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990). The opinion in Lewelling, however, gives no indication that the amendment of the statutory presumption changed the requirements for a subsequent modification of custody between parents and nonparents. Indeed, in a dissenting opinion one of the justices stated that the amendment only reinforced what has always been the law. Lewelling v. Lewelling, 796 S.W.2d at 171 (Gonzales, J., dissenting). We conclude that the amending statute did not change the law as stated by the courts in Taylor v. Meek, supra; Hogge v. Kimbrow, supra; and Allen v. Salinas, supra.

Mrs. Wiener relies on cases such as Ham v. Cavette, 357 S.W.2d 438 (Tex.Civ.App.--Houston [1st Dist.] 1962, writ ref'd n.r.e.); Mecklin v. Herndon, 325 S.W.2d 824 (Tex.Civ.App.--Texarkana 1959, writ dism'd); Beasley v. Beasley, 304 S.W.2d 158 (Tex.Civ.App.--Dallas 1957, writ ref'd n.r.e.); and Havron v. Havron, 301 S.W.2d 949 (Tex.Civ.App.--Amarillo 1957, no writ). In those cases, however, the courts relied, at least in part, on showings that a change in custody would operate to improve the child's conditions and would be in the child's best interest.

We conclude that, in an original custody proceeding, the court must heavily favor the parents by reason of the rebuttable presumption. If a nonparent rebuts the presumption in the original custody determination, the parents in a subsequent modification proceeding must meet the requirements for a change of custody set out in TEX.FAM.CODE ANN. § 156.101. If a parent voluntarily relinquishes actual care, control, and possession of the child to a nonparent for a year or more, a portion of which was within...