In re J.R.D.

• Decision Date: 14 July 2005
• Docket Number: No. 03-04-00311-CV.,03-04-00311-CV.
• Citation: 169 S.W.3d 740
• Parties: In the Interest of J.R.D. and T.C.D.
• Court: Texas Supreme Court

169 S.W.3d 740

In the Interest of J.R.D. and T.C.D.

No. 03-04-00311-CV.

Court of Appeals of Texas, Austin.

July 14, 2005.

James A. Vaught, McCullar & Vaught, PC, Austin, for appellant.

Catherine A. Mauzy, Law Office of Catherine A. Mauzy, Christa Brown, Austin, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

Opinion by Justice PATTERSON.

Roger Duck appeals from a modification order in a suit affecting the parent-child relationship. After a hearing, the district court entered an order granting the petition to increase Duck's time with his sons to include Thursday overnights but otherwise denied a further increase in the possession schedule and a reduction in child support. On appeal, Duck challenges the court's failure to decrease child support and to grant further modification of the possession schedule, and the court's finding that it was not in the children's best interest to implement a 50-50 division of periods of possession. Because the evidence supports the district court's conclusion and because we cannot say that the court abused its discretion or otherwise committed error, we affirm the court's order.

Upon their divorce in June 2000, Roger Duck and Melanie Williamson were named joint managing conservators of their two sons, ages 6 and 3; Williamson was named as the parent with the right to establish the children's primary residence. The possession schedule and the amount of child support in the divorce decree were set by agreement. Apart from limited incidents, the parties agree that they are both good parents.

Because of financial difficulties, in 2002, Duck petitioned for modification of the amount of his child support obligation. Again, the parties reached an agreement and, in accordance with their agreement, the district court reduced his monthly child support from $1500 per month to $750 per month.

Although Duck's financial situation had not changed, he filed a second petition for modification in February 2003, seeking to reduce further the amount of his child support obligation. After Duck failed to pay the court-ordered amount of child support and advised Williamson that he would begin sending her $250 per month rather than the court-ordered amount, Williamson filed a motion to enforce, and Duck was found in contempt for failure to pay child support. He proposed that the children should spend alternate nights with him. Williamson rejected this "ping-pong" proposal because it would unduly disrupt the children's schedule. She would not agree to Duck's request for additional time and urged that he exercise the full amount of time set forth in the possession schedule of the original divorce decree. Duck then amended his petition seeking an increase in his periods of possession of the couple's sons to include overnights on Sundays, Mondays, and Thursdays.¹

After a hearing on the petition to modify, the court entered an order modifying the possession schedule to allow Duck to keep the children overnight on Thursdays as permitted by an election under the standard possession schedule. The district court denied Duck's request for Sunday and Monday overnight possession and declined to order a change in Duck's child support obligation.

Under the applicable portions of section 156.101 of the Texas Family Code, the district court may modify the conservatorship of a child only if the modification is in the child's best interest, and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of rendition of the order. See Tex. Fam.Code Ann. § 156.101 (West Supp.2004-05). The party moving for modification has the burden of proving the occurrence of "material and substantial change." In re Knott, 118 S.W.3d 899, 902 (Tex.App.-Texarkana 2003, no pet.); In re P.D.M., 117 S.W.3d 453, 463 (Tex.App.-Fort Worth 2003, pet. denied).

We review the district court's modification order under an abuse of discretion standard. We give wide latitude to a trial court's decision on custody, control, possession, child support, and visitation, and will reverse the order only if it appears from the record as a whole that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (applying abuse of discretion standard with regard to possession order); In re C.P.J., 129 S.W.3d 573, 576 (Tex.App.-Dallas 2003, pet. denied). The trial court is in a better position to determine what will be in the best interest of the child since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex.App.-El Paso 1997, no writ). Its judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Id.

A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (applying abuse of discretion standard with regard to child support order). The determination of conservatorship issues is guided by the best interest of the child and is "intensely fact driven." Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the district court abused its discretion. See, e.g., Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.).

Duck raises constitutional and statutory challenges to the court's order. He contends that the court erred regarding the amount of his access to and possession of the children because he is constitutionally entitled to equal time with them. A constitutional analysis must begin with a presumption of the statute's validity. General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001). The burden is on the party seeking to rebut the presumption of statutory validity. Id. As mandated by statute, the best interest of the child is the court's primary consideration in determining conservatorship and access. Tex. Fam.Code Ann. § 153.002 (West 2002). "Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators." Id. § 153.135 (West 2002). "The standard possession order . . . constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the exclusive right to designate the primary physical residence of the child in a suit." Id. § 153.137 (West Supp.2004-05). There is a rebuttable presumption that the standard visitation order provides reasonable minimum possession of a child for a parent named as a joint managing conservator and that such possession is in the best interest of the child. Id. § 153.252 (West 2002).

Although the court modified the possession schedule to allow Duck's children to stay overnight with him on Thursdays,² Duck also sought Sunday night possession, claiming that he has an "absolute right" to Sunday overnight stays by statute. See id. § 153.317 (West Supp.2004-05); see also In re Davis, 30 S.W.3d 609, 612 (Tex.App.-Texarkana 2000, no pet.). Duck, however, failed to justify his request for Sunday night possession by showing the court that his circumstances or those of his children had materially and substantially changed since the rendition of the last modification order on April 19, 2002.³ Tex. Fam.Code Ann. § 153.317; Davis, 30 S.W.3d at 612-13 (Sunday overnight stays justified by finding of substantial change that occurred in five years since entry of prior order). Thus, Duck did not have an "absolute right" to the Sunday overnight possession. Moreover, Duck agrees that the children have flourished under the current possession agreement.

The possession schedule in this case follows the standard possession schedule except that Duck is afforded additional possession time on Mondays from the time school dismisses until 8:00 p.m. and for Monday overnights in summer. This is a presumptively reasonable possession schedule that the district court found to be in the children's best interest. Id. § 153.252. We find sufficient evidentiary support for the balance the district court struck in modifying the standard order and find no support in the record for further altering the schedule.

Duck further lodges a constitutional challenge to the court's use of the best-interest-of-the-children standard, claiming that it interferes with his fundamental right to parent his children and does not serve a compelling state interest. It is clear from the record that, with minor lapses, both parents are and strive to be good and fit parents. From this, Duck argues that good parents should have substantially equal periods of possession with their children. After reviewing the record, we cannot locate any testimony by Duck that his proposal would be in the best interest of the children. Indeed, at one point the district court admonished Duck to focus on the interest of the children, rather than his own best interest. Duck responded that "the best interest of the children cannot be at the expense of my constitutional rights." While there is a statutory presumption that the parents be appointed joint managing conservators, there is no comparable statutory presumption that the award of equal periods of possession is in the children's best interest. Compare id. § 153.131(b) (West 2002) with id. § 153.135. Duck did not identify any case that found a constitutional infringement based on a court's order of unequal possession periods for divorced parents. Moreover, the Supreme Court has expressly recognized that the "best interest of the children" is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 ...