Gibbs v. Greenwood

• Decision Date: 04 May 1983
• Docket Number: No. 13597,13597
• Citation: 651 S.W.2d 377
• Parties: Sharon Lou Greenwood GIBBS, Appellant, v. James Allen GREENWOOD, Appellee.
• Court: Texas Court of Appeals

Page 377

651 S.W.2d 377

Sharon Lou Greenwood GIBBS, Appellant, v. James Allen GREENWOOD, Appellee.

No. 13597.

Court of Appeals of Texas,

Austin.

May 4, 1983.

William H. Ervine, Jr., San Angelo, for appellant.

David B. Read, Turner, Read & Williams, San Angelo, for appellee.

Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.

POWERS, Justice.

Appeal is taken from a judgment modifying a previous divorce decree pursuant to Tex.Fam.Code Ann. § 14.08 (Supp.1982).

Appellee James Allen Greenwood filed a motion on March 2, 1981, in the district court of Tom Green County to modify a divorce decree entered by that court on November 21, 1979. By his motion appellee sought the removal of his former wife, appellant Sharon Lou Greenwood Gibbs, as managing conservator of Mica Mathew Greenwood, age five, and his appointment to that position. Upon appellee's request for temporary orders, on March 12, 1981, a hearing was held, after which the trial court appointed appellee temporary managing conservator pending trial on the merits. After a trial on the merits on July 20, 1981, judgment was entered by the district court appointing appellee managing conservator and appellant possessory conservator.

Appellant challenges the judgment by two points of error. By the first, she asserts there is insufficient evidence to support the court's finding of material and substantial change of circumstances since the entry of the previous decree, and the finding that her retention as managing conservator would be injurious to the child. By the second, she claims that the evidence is insufficient to support the court's determination that the appointment of appellee as managing conservator would provide a positive improvement for the child.

We will affirm the judgment.

Texas Fam.Code Ann. § 14.08 (Supp.1982) empowers the court having jurisdiction of a suit affecting the parent-child relationship to modify, after hearing, an order appointing a managing conservator if:

(c) ...

(1) ... the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child....

In Jones v. Cable, 626 S.W.2d 734, 736 (Tex.1981), the Supreme Court analyzed this provision as follows:

Section 14.08(c)(1) can be paraphrased into three inquiries: before a court can modify a custody order, there (1) must be change in the circumstances of the child or parent so material and substantial that (2) retention of the present managing conservator would be injurious to the welfare of the child and (3) the appointment of a new managing conservator would be a positive improvement for the child. [emphasis in original]

The requirement of a change of circumstances is based upon the doctrine of res judicata. The previous determination of custody constitutes an adjudication of the "best interests" of the child, required by Tex.Fam.Code Ann. § 14.07(a) (1974). To avoid the effect of the former order or judgment determining custody, the party seeking a modification of conservatorship must show a material and substantial change in conditions. Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex.1969); Ogletree v. Crates, 363 S.W.2d 431, 434 (Tex.1963) ("A final judgment in a custody proceeding is res judicata of the best interest of a minor child as to conditions then existing."). Whether there has been a material and substantial change of conditions affecting the child is normally to be determined by an examination of the evidence of changed circumstances occurring between the date of the order or judgment sought to be modified and the date of the filing of the motion to modify. Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.1966); Odell v. Brame, 517 S.W.2d 920, 921 (Tex.Civ.App.1974, no writ). If the inquiry regarding changed circumstances relates to a parent, then the court is only authorized to consider the changes with reference to the custodial parent. Jones v. Cable, supra. If materially changed conditions are found to exist, then there remain two questions: are the changed circumstances so material and substantial that retention of the present managing conservator would be injurious to the welfare of the child; and would the appointment of the movant as a new managing conservator be a positive improvement for the child? Id. at 736.

Following the entry of judgment, the court below made numerous findings of fact. For the most part, these findings include various evidentiary facts from which the trial court concluded that there had been a material and substantial change in the circumstances of appellant since the entry of the prior order which made retention of appellant as managing conservator injurious to the child. Although appellant's first point of error is both multifarious and too general to draw our attention to the specific findings she seeks to attack, we have examined both the point of error and the argument under it to determine the nature and extent of her complaint. Fambrough v. Wagley, 120 Tex. 577, 169 S.W.2d 478, 482 (Tex.1943). See Tex.R.Civ.P.Ann. 418(d) (Supp.1982).

Reduced to its essentials, appellant's argument is that at the time of the divorce decree sought to be modified, she was living with another man (Gibbs), whom she subsequently married. Therefore, she argues, the fact that she was, at the time appellee filed the motion to modify, living with yet another man (Cave), while she was still married to Gibbs, does not constitute a material and substantial change of circumstances. See Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.1978, writ ref'd n.r.e.). This is especially the case, she contends, because at the time of the hearing on the merits, her relationship with Cave had ended. She also argues that the evidence affirmatively shows that at the time of the prior decree, her health was bad because of severe and traumatic surgery, but that it had improved substantially by the time of the trial below. Additionally, she contends that her level of income had increased from the date of divorce to date of modification, and that this constituted a positive improvement for the child.

In our disposition of appellant's contentions under her first point of error, we initially note that in reviewing factual sufficiency points of error, we are to consider all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951). On the other hand, findings of fact which are unchallenged are binding upon appellant and the reviewing court. Tex. St. Bd. of Pharm. v. Gibson's Discount Cent., 541 S.W.2d 884, 886 (Tex.Civ.App.1976, writ ref'd n.r.e.).

We therefore turn our attention to those relevant findings which are not attacked by appellant. They may be summarized as follows: the child was exposed to appellant's adulterous relationship with Cave; the child had arrived at an age when he was curious about his mother's relationship with Cave; during the time that Cave and appellant lived together, Cave was charged with the offense of possession of marijuana; there were times that appellee wished to speak to the child by telephone, but was prevented from doing so by Cave; appellant moved away from Cave during the pendency of this cause...