In Interest of M.S.R., No. 13-05-493-CV (Tex. App. 11/1/2007)
| Decision Date | 01 November 2007 |
| Docket Number | No. 13-05-493-CV.,13-05-493-CV. |
| Parties | IN THE INTEREST OF M.S.R. AND S.R., Children. |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law No. 1 of Hidalgo County, Texas.
Before Justices YAÑEZ, BENAVIDES, and VELA.
Appellant Sameena Ahmed, the natural mother of M.S.R. and S.R., appeals a trial court order that: (1) modified a 1998 conservatorship order by reclassifying Ahmed as the possessory conservator rather than managing conservator of the children; (2) terminated her parental rights of access and visitation to the children; and (3) enjoined her from alleged harassment of the appellee, her ex-husband, Dr. Shahid Rashid. We find the trial court did not abuse its discretion in ordering the modification of conservatorship. We do, however, find the evidence insufficient to support the court's termination of parental access and visitation rights. Furthermore, we find the permanent injunction overbroad and unenforceable. Therefore, we affirm the order as to modification of conservatorship and reverse the order as to termination and the permanent injunction.
Dr. Shahid Rashid and Ms. Sameena Ahmed were divorced in 1998. They are the natural parents of two minor children from the marriage, M.S.R. and S.R. Dr. Rashid and Ms. Ahmed were named joint managing conservators in the 1998 divorce decree. After the divorce, the two children remained at Dr. Rashid's home in McAllen, Texas, where he maintains an anesthesiology practice. Ms. Ahmed moved to Chicago, Illinois to attend law school, and upon her graduation in 2001, spent the next two years working in Chicago and in Washington, D.C. In April 2004, Dr. Rashid filed a motion for modification of the divorce decree, seeking to be named sole managing conservator. Ms. Rashid then moved back to the McAllen area in order to be closer to the children and to better contest the motion.
Dr. Rashid prevailed in the subsequent trial by offering evidence that Ms. Ahmed had become an unstable and disruptive influence in the children's lives. The trial court (1) designated Dr. Rashid sole managing conservator, (2) designated Ms. Ahmed possessory conservator, (3) denied Ms. Ahmed all parental visitation and access rights to the children,1 and (4) permanently enjoined Ms. Ahmed from "harassing" Dr. Rashid.
In an oral pronouncement, the court indicated that four particular pieces of evidence prompted its modification of conservatorship and termination of parental access rights. First, the court cited a tape recording of a telephone conversation (partly in English, and partly in Urdu) between Dr. Rashid and Ms. Ahmed in which Ms. Ahmed threatened herself and the two children with "expression[s] of aggression and some loud discussions."
Second, the court cited allegedly "hostile" behavior by Ms. Ahmed directed towards the court-appointed attorney ad litem. For instance, Ms. Ahmed became very upset when the ad litem arrived to observe and supervise Ms. Ahmed's visit with M.S.R. and S.R. at a McAllen restaurant because she did not believe that the existing agreement mandated supervised visitation. Ms. Ahmed demanded that the ad litem leave and phoned the police to file a report. The court also construed Ms. Ahmed's conduct in having an attorney who was not of record phone the ad litem for questioning on a Sunday as harassment. Ms. Ahmed does not dispute either incident—she merely claims that the incidents were legitimate exercises of legal rights that do not rise to the level of "harassment."
Third, the court sympathized with concerns that Ms. Ahmed had received personal and financial assistance in McAllen from persons who were known to have "disagreements or problems" with her ex-husband, thus calling into question whether her motive for returning to McAllen was to contest the motion or merely to harass Dr. Rashid.
Finally, the court cited the disparity in stability between Dr. Rashid and Ms. Ahmed. Dr. Rashid has a house, a steady medical practice, and greater economic resources, whereas Ms. Ahmed has spent the years since the divorce moving around the country to attend school and pursue several jobs.
With respect to the permanent injunction against "harassing" behavior, the trial court received testimony by Dr. Rashid about the following incidents: (1) that Ms. Ahmed once brought the McAllen police with her to Dr. Rashid's home in order to enforce her visitation rights; (2) that she told members of Dr. Rashid's mosque that Dr. Rashid was a "very bad person;" (3) that she entered the school of M.S.R. and S.R. in order to access the children's school records; and (4) that she flew on the same airplane with Dr. Rashid on a trip to Houston.
The court issued its written order on May 2, 2005. Ms. Ahmed now appeals all rulings in the order—the modification of conservatorship, the denial of parental access and visitation rights, and the permanent injunction.
We begin by noting that Ms. Ahmed made a timely and proper request for findings of fact and conclusions of law, but these were not filed by the trial court. We do not presume harm to Miss Ahmed, however, because in such situations harm is only presumed if the appellant is required "to guess the reason or reasons that the trial judge has ruled against it." Sheldon Pollack Corp. Pioneer Concrete of Tex., 765 S.W.2d 843, 845 (Tex. App.-Dallas 1989, writ denied). In the instant case, Miss Ahmed was not forced to guess the reasons she did not prevail because, as we noted above, the trial court specifically articulated its reasons during the trial. Sagemont Plaza Shopping v. Harris County Appraisal Dist., 30 S.W.3d 425, 427 (Tex. App.-Corpus Christi 2000, pet. denied) (). We proceed with our analysis by reviewing this reasoning, which can be found in the reporter's record, and by evaluating it in the light most favorable to the judgment of the trial court. Schoeffler v. Denton, 813 S.W.2d 742, 745 (Tex. App.-Houston [14th Dist.] 1991, no writ).
We review the trial court's order under a highly deferential abuse of discretion standard. Schoeffler, 813 S.W.2d at 745. The test for abuse of discretion is to determine whether the trial court acted without reference to any guiding rules or principles, or whether under the circumstances of the case, the trial court's actions were arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A court may modify a conservatorship order if (1) the modification would be in the best interest of the child; and (2) the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1)(A) (Vernon 2006). The family code requires proof of a material and substantial change of circumstances because of res judicata considerations and the State's desire to prevent constant relitigation with respect to children. Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.-Eastland 2006, no pet.).
A conservator's move to a new location is not itself a material change in circumstances, but it may combine with other factors to establish a material change. Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.-Houston [1st Dist.] 1988, no pet.). Relevant factors include, but are not limited to, the distance of a move, the nature and quality of the children's contacts with the noncustodial parent, and the proximity, availability, and safety of travel arrangements. Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.-El Paso 2002, no pet.). Stability for the child is also an important consideration. Child, 210 S.W.3d at 698. Evidence concerning stability might serve as evidence not only of a material and substantial change in circumstances but also as evidence of the next part of the inquiry—the best interest of the child. Id.
The best interest of the child is the primary consideration in determining conservatorship, possession, and access rights of a parent. Tex. Fam. Code Ann. § 153.002 (Vernon 2002); see also E. C. v. Graydon, 28 S.W.3d 825, 828 (Tex. App.-Corpus Christi 2000, no pet.). The trial court has wide discretion in determining the best interests of a child because the court is in the best position to observe such things as demeanor and personalities of the witnesses, which cannot be discerned merely by reading the record. In re H.S.N., 69 S.W.3d 829, 831 (Tex. App.-Corpus Christi 2002, no pet.).
In this case, we do not believe that the trial court abused its discretion in modifying the conservatorship order to name Dr. Rashid sole managing conservator and Ms. Ahmed possessory conservator. To begin, it was not an abuse of discretion for the court to find a "substantial and material change in circumstances" justifying a reconsideration of the order because the disparity in stability that has developed between Dr. Rashid's circumstances and Ms. Ahmed's circumstances since the rendition of the original order is sufficient to constitute a material change. Although Ms. Ahmed was once a daily presence in the lives of M.S.R. and S.R., she has spent the past five years living over a thousand miles away in Chicago and then in Washington, D.C. These are moves of a significant distance which rendered travel arrangements for the children far more difficult than a local or regional move. Most significantly, the moves have made her living situation far less stable than it was when the original conservatorship order was rendered. It cannot be considered an abuse of...
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