Horne v. Harwell, 12,378
| Decision Date | 04 February 1976 |
| Docket Number | No. 12,378,12,378 |
| Citation | 533 S.W.2d 450 |
| Parties | B. K. Harwell HORNE, Appellant, v. J. A HARWELL, Appellee. |
| Court | Texas Court of Appeals |
Stephen M. Orr, Austin, for appellant.
Tommy P. Herring, Waco, for appellee.
Appellant, B. K. Horne, has appealed from the judgment of the district court of Travis County which appointed appellee, J. A. Harwell, possessory conservator of his minor child with specific times for access to the child. We will affirm that judgment.
Appellant and appellee were divorced by order of the district court of Travis County on April 16, 1973. In the divorce judgment appellant was awarded custody of their seventeen month old daughter, Amber A. Harwell. By the terms of the divorce judgment, appellant's custody of the child was '. . . not subject to the right of reasonable visitation in the Respondent (appellee) and that Respondent has no right of visitation subject to further orders of this Court.'
In January of 1975, appellee filed a motion to modify the 1973 divorce judgment. In that motion, Inter alia, appellee sought to be named possessory conservator of the child and to receive from the court a schedule for specific access to the child. Appellee claimed in the motion '. . . that because of a substantial and material change of circumstances the best interest of the child will be served by modification of this order (the judgment of divorce).'
After hearing, the court entered judgment in which it was recited that '. . . the circumstances have materially and substantially changed since the entry of the Order sought to be modified (the judgment of divorce) and that the best interest of the child would be served by modifying the original order . . .' The judgment then provided a schedule of time during which appellee would have access to the child.
Upon request, the district court filed findings of fact and conclusions of law. The court found that there had been '. . . a substantial and material change of circumstances and that the best interest of the minor child, Amber A. Harwell, will be served by a modification of the original Divorce Decree . . .' The court then listed the 'changed' circumstances.
The court concluded that appellee's motion to modify alleged that the circumstances Of the child had materially and substantially changed since the entry of the original order. The court was of the further opinion that the said allegation met all of the requirements of the Texas Family Code, and that appellant had not specially excepted to the form of that allegation in appellee's motion.
Appellant attacks the fact findings, the conclusions of law, and the judgment by seven points of error. Four points of error relate to the requirement that a motion to modify a prior order allege and the court find that the circumstances of the child have materially and substantially changed since the time of the entry of the order sought to be modified.
Texas Family Code Ann. § 14.08 (1974) provides in part as follows:
'(c) After a hearing and On a finding that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child, any order or part of an order may be modified . . .' (Emphasis added)
Section 14.08(a) and (c) requires that a party seeking a modification of an order providing for access to a child both plead and prove that the circumstances Of the child have materially and substantially changed since the entry of the former order. Howard v . Pullicino, 519 S.W.2d 254 (Tex.Civ.App.1975, no...
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Baker v. Peterson, No. 10-02-00113-CV (Tex. App. 4/7/2004)
...material and substantial change. In re Davis, 30 S.W.3d 609, 615 (Tex. App.—Texarkana 2000, no pet.); Horne v. Harwell, 533 S.W.2d 450, 452 (Tex. Civ. App.—Austin 1976, writ ref'd n.r.e.). Also, there was evidence that Baker poisoned Z.J.B.'s mind against his mother. This, too, has been fou......
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Allsup, In Interest of
...trial court to find Allsup in contempt, a district court's order denying contempt is not reviewable. Horne v. Harwell, 533 S.W.2d 450, 452 (Tex.Civ.App.--Austin 1976, writ ref'd n.r.e.); Hamborsky v. Hamborsky, 497 S.W.2d 405, 406 (Tex.Civ.App.--San Antonio 1973, no writ); Blair v. Blair, 4......
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Interest of Davis
...had determined that the change in the age of the child warranted a modification of the former order. Horne v. Harwell, 533 S.W.2d 450, 452 (Tex. Civ. App.-Austin 1976, writ ref'd n.r.e.). In this case, we have the inverse situation. This trial court necessarily acknowledged that the childre......
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In the Interest of Z.B.P.
...in itself is sufficient to show the material change necessary to support modification.") (citing Horne v. Harwell, 533 S.W.2d 450, 452 (Tex. Civ. App.—Austin 1976, writ ref'd n.r.e.)). In addition, it was Appellant's sole decision to violate the decree and live in Springtown, a decision tha......