Interest of Davis

Decision Date12 October 2000
Docket NumberNo. 06-00-00039-CV,06-00-00039-CV
Citation30 S.W.3d 609
CourtTexas Court of Appeals

On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 390-94

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.


Opinion by Justice Donald R. Ross.

Leland Davis appeals from the denial of his motion to modify possessory arrangements in a child custody order and the denial of his request to lower child support payments. He contends that the trial court abused its discretion by: 1) failing to comply with a mandatory statute; 2) failing to make additional or amended findings of fact and conclusions of law; 3) finding no material and substantial changes justifying a change in the possession order; 4) finding the divorce decree workable and appropriate, because such finding was against the great weight and preponderance of the evidence; 5) failing to consider his election under the Family Code for extending Wednesday visitation; and 6) failing to set child support within the statutory guidelines.

Leland and Connie Davis (Gage) were divorced on October 7, 1994. They had four daughters. Since then, they have both remarried, and two of the daughters are over the age of eighteen years. At the time of the hearing, the other two daughters were fifteen and six years old. The 1994 divorce decree provided that Leland was to pay Connie $1,000.00 per month in child support. In 1999, Leland's employer, the Stroh's Brewery in Longview, closed its doors and he lost his job. Shortly thereafter, he sought and received a reduction in child support payments to $500.00 per month. He is presently receiving unemployment benefits amounting to $1,243.66 per month.

The decree also contained a possession order which provided that he was to return the children after weekend visitation at six o'clock on Sunday night, and at eight o'clock on Wednesday night. Leland sought a change in visitation so that his daughters could attend catechism classes on Sunday evening and be returned by him to school on Monday morning, and so that he would be permitted to keep the children overnight on Wednesday and return them to school on Thursday morning.

Because of recent amendments to the Family Code, the Wednesday visitation change sought by Leland as possessory conservator is mandatory in original or modification orders entered after 1997, unless the court finds such visitation is "not in the best interest of the child." Tex. Fam. Code Ann. § 153.312(a)(2) (Vernon Supp. 2000). Also, the Sunday night visitation change sought by Leland was likewise made mandatory, on the election of the possessory conservator, in original or modification orders rendered after 1997, except that statute does not contain the "best interest of the child" language. Tex. Fam. Code Ann. § 153.317(2) (Vernon Supp. 2000).

Leland first contends that the trial court abused its discretion by failing to apply the language of Section 153.317(2) and modify the visitation provision of the divorce decree to allow him to surrender his children to school on Monday morning after a weekend visitation rather than at six o'clock on Sunday night. The statute provides the present language of a standard possession order and is presumed to be in the best interest of the child.1 The former version of the statute provided that the visitation may expressly provide for the Monday morning surrender. The present version provides that the visitation must expressly provide such language on request of the possessory conservator.

In a similar contention, he argues that the court abused its discretion by failing to apply the language of Section153.312(a)(2) and allow him to surrender his children to school on Thursday morning after a Wednesday night visitation. That statute also contains the mandatory language described above.

Both of those statutes are based on the same premise. They require the court to allow the type of surrender sought by Leland on the rendition of either an original order or a modification order. In this case, the trial court expressly refused to enter an order modifying possession, but did enter a modification order changing child support, deleting dependency exemption language, and ordering payment for a child support arrearage. It is not clear from the statute whether any type of modification would suffice to require the application of the mandatory language, or whether it would be applied only if the court modified the visitation provisions of the prior order.

Our application of the amended statute is complicated by the general language of the Family Code stating that a court may modify a possession order only if the circumstances of the child or parent has substantially and materially changed since the date of the order, or if the order has become unworkable or inappropriate. Tex. Fam. Code Ann. § 156.301(1), (2) (Vernon Supp. 2000). Neither the general modification statute nor the amended statutes acknowledge the existence of the other. Thus, the question is whether a party seeking a modified visitation order must first comply with Section 156.301 before the court is required to apply the mandatory election language of Section 153.317 and order surrender of a child after visitation as provided under the present version of the standard possession statutes.

No court has addressed this question. In Weldon v. Weldon, 968 S.W.2d 515, 518 (Tex. App.-Texarkana 1998, no pet.), we reviewed a similar claim involving the prior version of a companion section of the code. In that case we found that the "may" language made the decision to grant the requested election discretionary and that the trial court did not err by applying the "material and substantial change" standard in making its decision under Section 156.301.

We also held, however, that where modification of an existing order was sought, the movant was required to meet one of the four requirements of Section 156.301, and if successful, "the trial court may then consider the guidelines for possession of and access to a child under Chapter 153." That concept underpins any attempt to modify a possession or visitation order. Thus, in order to read these statutory provisions in harmony with each other, we conclude that a movant must first meet the requirements of Section 156.301. If the movant does so successfully and makes the requisite election, then the trial court is required to provide visitation as set out by Section 153.317. We conclude that the trial court did not err by analyzing the application of the law in this manner.

We now turn to Leland's evidentiary claims. Leland further contends that the trial court committed reversible error by failing to make additional or amended findings of fact and conclusions of law on the specific issues of whether there was a "material and substantial change in circumstances" or whether the existing visitation order was "unworkable and inappropriate under the existing circumstances." He argues that if Section 156.301 applies, and such findings are necessary, then the court erred by failing to make such findings.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. In re W.S., 899 S.W.2d 772, 775 (Tex. App.-Fort Worth 1995, no writ); Arena v. Arena, 822 S.W.2d 645, 650 (Tex. App.-Fort Worth 1991, no writ).

If a proper request for findings is made, as in this case, the trial court's duty to file findings and conclusions is mandatory, and the failure to respond when all requests have been properly made is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no injury. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).

In this case, the trial court made findings. It then declined to make amended or additional findings as requested by appellant. Davis complains at length that the court erred by refusing to make the additional findings. His discussion is focused on his argument that the failure to make such findings make it impossible for him to determine why the court concluded that it would not be in the best interest of the child to follow the language of a standard visitation order and instead chose to deviate from the terms of a standard visitation order.

The Family Code does not define "finding of fact." Accordingly, we construe the phrase by use of the particular meaning it has acquired under Tex. R. Civ. P. 296. See Tex. Gov't Code Ann. § 311.011 (Vernon 1998). That particular meaning refers to the ultimate and determinative fact questions rather than evidentiary fact findings. See De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 360 (1960); Montgomery Indep. Sch. Dist. v. Davis, 994 S.W.2d 435, 438 (Tex. App.-Beaumont 1999, pet. granted); Posner v. Dallas County Child Welfare, 784 S.W.2d 585, 587 (Tex. App.-Eastland 1990, writ denied). Findings of fact are equivalent to a jury's verdict. See State Bar of Texas v. Lerner, 859 S.W.2d 496, 498 (Tex. App.-Houston [1st Dist.] 1993, no writ).

Thus, the court must make findings on each material issue raised by the pleadings and evidence, but not on evidentiary issues. Findings are required only when they relate to ultimate or controlling issues. Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.-El Paso 1999, no pet.); Loomis Int'l, Inc. v. Rathburn, 698 S.W.2d 465, 467 (Tex. App.-Corpus Christi 1985, no writ); ...

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