In re C.A.M.M., 14-06-00279-CV.

Citation243 S.W.3d 211
Decision Date30 October 2007
Docket NumberNo. 14-06-00279-CV.,14-06-00279-CV.
PartiesIn the Interest of C.A.M.M.
CourtCourt of Appeals of Texas

Beverly Lord, Houston, for appellant.

Walter P. Mahoney, Jr., Pasadena, for appellee.

Panel consists of Justices FROST, SEYMORE, and GUZMAN.

MAJORITY OPINION

EVA M. GUZMAN, Justice.

In this custody dispute, the child's biological father challenges a modification order in which (1) the child's maternal grandmother and step-grandfather were appointed joint managing conservators with the exclusive right to determine the child's primary residence, and (2) although the father was named a joint managing conservator, he was limited to supervised visitation with the child. Because we agree that the trial court erred in ordering supervised visitation, we modify the trial court's order to remove this requirement. But because the parental presumption is inapplicable in a modification proceeding and the trial court properly considered the child's best interest in modifying conservatorship, we affirm the trial court's order as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

C.A.M.M. ("Camille")1 was born in 1993. Tammy and Mark, her parents, were never married, but in 1994, Tammy filed an Original Petition to Establish Paternity. On November 8, 1996, the trial court entered an "Order on Motion to Modify in Suit Affecting the Parent-Child Relationship." The parties do not dispute that in this order (the "prior order"), the trial court appointed Tammy sole managing conservator with the right to designate Camille's primary residence and appointed Mark possessory conservator with a standard possession order.2

Tammy and Camille lived with Tammy's mother, Jean ("Grandmother"), and Tammy's step-father, also named Mark ("Grandfather," collectively, the "Grandparents"),3 essentially from the time of Camille's birth. Mark has been involved in Camille's life since her birth and took an even more active parenting role after Tammy began to have serious health problems when Camille was about nine years old. Tammy died at home on February 17, 2005 while awaiting a heart transplant; Camille was home alone with Tammy when she died. Mark was immediately notified, and he took Camille home with him for a few days. Mark returned Camille to the Grandparents' home when Camille resumed school.

In March 2005, the Grandparents filed a Petition to Modify the Parent-Child Relationship, accompanied by Camille's signed statement that she preferred her grandparents to determine her primary residence.4 The Grandparents later amended their petition, and their live pleading at the time of trial was entitled "First Amended Petition to Modify the Parent-Child Relationship and in the Alternative Petition in Suit Affecting the Parent-Child Relationship and in the Alternative Suit for Grandparent Access." The parties entered into an agreed interim order requiring Camille to reside with the Grandparents, until June 1, 2005, and continuing Mark's standard possession on the first, third, and fifth weekends. The parties also agreed that Mark would have additional visitation on Tuesdays and Thursdays after school until the next morning so he could assist Camille with her schoolwork. The interim order granted Mark possession of Camille beginning June 1, 2005, and granted the Grandparents possession on the second and fourth weekends and every Wednesday overnight.

At the end of the school year, Camille began residing with Mark under the temporary order, but on July 25, 2005, the Grandparents sought to modify the agreed interim order. After a hearing before an associate judge, Mark and both Grandparents were appointed temporary joint managing conservators, and Camille returned to the Grandparents' residence. Mark was given a standard possession order, as well as additional visitation on Tuesdays and Thursdays from the end of Camille's school day until 8:00 p.m.

After conducting a non-jury trial and interviewing Camille in chambers, the trial court appointed Mark and the Grandparents joint managing conservators. The Grandparents were awarded the right to designate Camille's primary residence, and Mark was given visitation under a standard possession order and ordered to pay child support. In its conclusions of law, the trial court explicitly stated it was modifying the prior order of November 8, 1996.

Mark filed a motion for new trial on January 11, 2006, and argued inter alia that the trial court's rulings were not supported by a finding that he is an unfit parent. At the hearing on this motion, the trial court observed that it "would also not be able to give [Mark] a standard possession order" if he were unfit. The trial court then reformed its order, adding a finding that Mark's appointment as Camille's sole managing conservator would significantly impair her physical health and emotional development. The trial court also required Mark's visitation to be supervised by an adult approved by Grandmother. This appeal timely followed.

II. ISSUES PRESENTED

In four issues, Mark challenges the trial court's findings and reformed order, contending that the trial court (a) improperly categorized the lawsuit as a modification suit rather than an original proceeding, thus avoiding the parental presumption statute; (b) unconstitutionally applied the modification statutes; (c) abused its discretion by appointing the Grandparents as joint managing conservators rather than appointing Mark as the sole managing conservator; and (d) improperly reformed its order to limit Mark to supervised visitation.

III. ANALYSIS
A. Standard of Review

Most orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Such an abuse of discretion occurs when a trial court acts arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A trial court does not abuse its discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996) (orig.proceeding). But the fact that a trial court may decide a matter within its discretionary authority in a different manner from an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Finally, the failure to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). This is so even when the area of law at issue is unsettled. Huie, 922 S.W.2d at 927-28.

B. Characterization of the Suit as a Modification

Pleading in the alternative, the Grandparents characterized their action as a suit for modification, an original proceeding, or a suit for access by a grandparent.5 The trial court treated the proceeding as a modification, as demonstrated' by the court's order entitled "Reformed Order in Suit to Modify Parent-Child Relationship."6 In his first issue, Mark contends that upon Tammy's death, the prior conservatorship order was no longer a valid order governing conservatorship and possession. He reasons that because the prior order became invalid, the trial court erred by treating this action as a suit for modification, rather than an original suit affecting the parent-child relationship ("SAPCR").

1. The Parental Presumption

The distinction between an original conservatorship determination and a modification proceeding is more than procedural or semantic. Under Chapter 153 of the Texas Family Code, the trial court is required to apply a "parental presumption" in an original proceeding:

[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator[7] or both parents shall be appointed as joint managing conservators of the child.

TEX. FAM. CODE ANN. § 153.131(a) (Vernon 2002).8 Thus, in an original proceeding, "evidence that the non-parent would be a better custodian" is insufficient to support the appointment of a non-parent as managing conservator in preference to a parent. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990). Rather, the non-parent is required to "affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally." Id.

But in a modification proceeding, a non-parent is not required to prove that a parental appointment would significantly impair the child. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000). Instead, a non-parent who recently has lived with the child for six months can be appointed as a sole or joint managing conservator and obtain the right to designate the child's primary residence by demonstrating that the appointment would be in the child's best interest, and

(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or

(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily...

To continue reading

Request your trial
81 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT