In the interest of P.M.B.
| Decision Date | 31 August 1999 |
| Citation | 2 S.W.3d 618 |
| Parties | <!--2 S.W.3d 618 (Tex.App.-Houston 1999) IN THE INTEREST OF P.M.B. NO. 14-98-00224-CV In The Fourteenth Court of Appeals |
| Court | Texas Court of Appeals |
[Copyrighted Material Omitted] Panel consists of Justices Amidei, Edelman, and Wittig.
O P I N I O N
Michael Lynn Bruno, II, appeals an order modifying the conservatorship of a child in favor of Angela Leigh Nichols on the grounds that the trial court erred in: (1) denying his motion for new trial based on newly discovered evidence; (2) granting Nichols's motion for sanctions; (3) refusing to allow Bruno to cross-examine the author of a court-ordered social study, even though the court had taken judicial notice of the study, or in the alternative, in failing to strike the social study; (4) refusing to hear testimony from a court-appointed psychologist and in revoking its judicial notice of the psychologist's report on file with the court; (5) denying Bruno's motion for continuance or motion for enlarging time to file answers to discovery as a lesser sanction under rule 215; and (6) modifying the conservatorship because there was no evidence or insufficient evidence to support the trial court's findings that a material and substantial change had occurred, the previous order was unworkable, the modification would be a positive improvement for the child, and the modification is in the best interest of the child. We reverse and remand.
Bruno and Nichols were married in 1989, and had one child, P.M.B., in 1991. They divorced in 1992 and were appointed joint managing conservators with Bruno having the exclusive right to establish the child's domicile. Bruno and Nichols each remarried.
In March of 1995, Nichols filed a motion to be appointed joint managing conservator with the exclusive right to establish the child's domicile or, in the alternative, sole managing conservator. At the same time, Nichols served interrogatories and requests for production of documents on Bruno.
In February of 1996, Nichols filed a motion to compel responses to her discovery requests. However, the parties thereafter agreed to exchange discovery information informally and advised the court that it was not necessary to hear the motion to compel. When the case was first tried, the trial court modified the conservatorship to appoint Nichols as the parent with the right to establish the child's domicile but later granted Bruno's motion for new trial. No objection was made at the first trial to any evidence based on any failure by Bruno to provide requested discovery.1
In April of 1997, Bruno served interrogatories and requests for production on Nichols. On Wednesday, May 28, 1997, Nichols filed a motion for protection from Bruno's discovery requests. On Friday, May 30, Nichols filed a motion for sanctions for Bruno's failure to answer the discovery requests Nichols had propounded before the first trial. The trial court held a hearing on the motion for sanctions on the following Monday, June 2, the first day of trial on the motion to modify conservatorship.
After hearing conflicting testimony from Nichols's attorney, Braneff, and from Bruno's prior and current attorneys, Swim and Young, regarding whether Braneff had notified Bruno that the previously exchanged discovery information was insufficient, the trial court granted Nichols's motion for sanctions and ordered that any of Bruno's witnesses or documents that would have been identified or produced in response to Nichols's unanswered discovery requests were to be excluded from evidence at trial. The trial court further denied Bruno's motions for enlarging time to answer the discovery and for continuance and granted Nichols's motion for protection from answering Bruno's discovery. During trial, the trial court excluded various evidence offered by Bruno based on the sanctions order and refused Bruno's tender of a bill of exceptions. After trial, the court granted a modification of conservatorship whereby Nichols became the parent with the right to establish the child's domicile, and it entered findings of fact and conclusions of law.
Bruno's sixth through ninth points of error, in part, challenge the legal sufficiency of the evidence to support the trial court's modification.2
A trial court's modification of conservatorship is reviewed for abuse of discretion.3 It is an abuse of discretion for a trial court to rule without supporting evidence. See General Tire, Inc. v. Kepple, 970 S.W.2d 520, 525 (Tex. 1998). A trial court's findings of fact are reviewed for sufficiency of the evidence by the same standards as are applied in reviewing the sufficiency of evidence to support a jury verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When reviewing the legal sufficiency of evidence, we consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If more than a scintilla of evidence favors a finding, the legal sufficiency challenge fails. See Minnesota Mining & Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex. 1997).
A court may modify the terms and conditions of a joint conservatorship order if: (1)(A) the circumstances of the child or of one or both of the joint managing conservators have materially and substantially changed since rendition of the order; or (B) the order has become unworkable or inappropriate under existing circumstances; and (2) a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child. See TEX. FAM. CODE ANN. 156.202 (Vernon 1996). Bruno's sixth through ninth points of error challenge the legal sufficiency of the evidence to support the trial court's findings on each of these elements.
Nichols asserted at trial that Bruno's and the child's circumstances had materially and substantially changed because Bruno had moved several times and changed jobs.4 Although moving alone is not a material enough change to support modification of conservatorship, it is a factor that may combine with others to satisfy the change element. See Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.-Houston [1st Dist.] 1988, no writ); see also Short v. Short, 354 S.W.2d 933, 936 (Tex. 1962); In re Soliz, 671 S.W.2d 644, 648 (Tex. App.-Corpus Christi 1984, no writ). Moreover, beneficial changes in jobs and locations also do not warrant modification. See Short, 354 S.W.2d at 936; Soliz, 671 S.W.2d at 648. In this case, the evidence of Bruno's moving and changing jobs does not reflect an adverse effect on the child which warrants a change in conservatorship.
Nichols further asserts that her own circumstances have materially and substantially changed because she has returned from military service in Korea, remarried, and had another child. However, these circumstances are also not material and substantial changes dictating a change in conservatorship.5
Nichols also presented evidence that the child's circumstances with respect to his emotional and physical well-being had materially and substantially changed. Nichols stated that she was concerned about what she believes was Bruno's excessive disciplining of the child. Nichols indicated that the child is anxious about getting into trouble and becomes upset if he thinks he has done something wrong because he is afraid of being punished. Nichols's new husband further testified that the child "flinches" when he makes a mistake such as spilling something. Both Nichols and her husband further stated that after the child has been with Bruno, the child's clothes are dingy and smell of cigarette smoke and he generally appears unkept. Nichols's sister and mother testified to seeing a number of unexplained bruises on the child. A social worker determined that the child had an adjustment disorder, which was probably caused by the child being spanked with a belt. Because this evidence is legally sufficient to show a material and substantial change in the circumstances of the child,6 the legal sufficiency challenge in Bruno's sixth point of error is overruled.
Bruno's seventh point of error challenges the legal sufficiency of the evidence showing that the prior order was unworkable or inappropriate under the circumstances. Nichols stated that since their divorce, Bruno has moved five or six times without giving her notice of the move or a new phone number. Nichols has thus had to obtain Bruno's new phone number from his grandmother. Nichols further testified that she tries to call the child on a weekly basis, but no one answers at Bruno's house and she is not able to leave a message because the answering machine is not on. According to Nichols, it can take up to four days to get through to someone at Bruno's house. Nichols also claims that Bruno makes it difficult for her to exercise her visitation. Because this is legally sufficient evidence that the prior order is unworkable and inappropriate under the circumstances, the legal sufficiency challenge in Bruno's seventh point of error is overruled.
Bruno's eighth and ninth points of error challenge the legal sufficiency of the evidence to show that the modification would be a positive improvement for, and in the best interest of, the child. As previously noted, Nichols presented evidence that the child has received unexplained bruises, is afraid of punishment, and after being with Bruno, is dirty and unkempt. Moreover, Nichols testified that since returning from Korea, she has lived in the same home where the child has his own room. Finally, the social worker testified that Nichols and the child have a good relationship and that the child would prefer to live at his mother's house because it is a safe place. In that this is legally...
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