Marriage of Chandler, Matter of

• Decision Date: 12 January 1996
• Docket Number: No. 07-95-0026-CV,07-95-0026-CV
• Parties: In the Matter of the MARRIAGE OF Karen Lynn CHANDLER and Billy John Stewart Chandler and in the Interest of Ash-Leah Kristina Chandler, a Minor Child.
• Court: Texas Court of Appeals

Page 252

914 S.W.2d 252

In the Matter of the MARRIAGE OF Karen Lynn CHANDLER and Billy John Stewart Chandler and in the Interest of Ash-Leah Kristina Chandler, a Minor Child.

No. 07-95-0026-CV.

Court of Appeals of Texas Amarillo.

Jan. 12, 1996.

Owen, Lyle, Voss & Owen, P.C., Rudd F. Owen, Kregg Hukill, Plainview, for appellant.

Shelton & Jones, Jennifer C. Beedy, Lubbock, for appellee.

Before DODSON, BOYD and QUINN, JJ.

QUINN, Justice.

Karen Lynn Haffner (formerly Chandler and referred to herein as Ms. Haffner) appeals from an order divesting her of managing conservatorship over her daughter, Ash-Leah Kristina Chandler (Ash-Leah). Through eight points of error, she attacks the legal and factual sufficiency of the evidence underlying the modification. We conclude that the trial court's findings are both legally and factually sufficient and that it did not abuse its discretion in arriving at the result it did. We further overrule each point of error and affirm the judgment.

Background

Ms. Haffner and Billy Chandler (Chandler) divorced on July 13, 1992. At the time, the couple had a six year old child, Ash-Leah, over whom the mother was appointed managing conservator. Chandler received appointment as the child's possessory conservator but moved to change the designation approximately seventeen months later. He sought to replace Ms. Haffner as the child's primary caretaker. The court granted Chandler's motion and Ms. Haffner appealed.

Standard of Review

Normally, whether to modify custody over a child lies within the trial court's sound discretion. Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App.--Fort Worth 1995, no writ); Randle v. Randle, 700 S.W.2d 314, 315 (Tex.App.--Houston [1st Dist.] 1985, no writ). The exercise of discretion will withstand appellate scrutiny except when clearly abused. In re the Marriage of Hamer, 906 S.W.2d 263, 265 (Tex.App.--Amarillo 1995, no writ); Wood v. O'Donnell, 894 S.W.2d at 556; Eason v. Eason, 860 S.W.2d 187, 191 (Tex.App.--Houston [14th Dist.] 1993, no writ). Yet, at bar, Ms. Haffner does not contend that the court so acted. Instead, she avers that various of its findings lacked legal and factual evidentiary support. Thus, we do not review this appeal under the customary standard mentioned in Wood or Randle but simply decide if the court's findings were supported by legally and factually sufficient evidence. ¹

Guidelines Applicable to Changing Conservatorship

The pivotal guidelines which the court must heed in deciding whether to modify custody are found in the Texas Family Code. They dictate that an order appointing a sole managing conservator must stand as originally executed unless 1) the circumstances of the child, managing conservator, or possessory conservator materially and substantially change, 2) retaining the status quo potentially harms the child's welfare, and 3) appointing a new managing conservator constitutes a positive improvement. Tex.Fam.Code Ann. § 14.08(c)(1) (Vernon Supp.1995); Wood v. O'Donnell, 894 S.W.2d at 556; Randle v. Randle, 700 S.W.2d at 315. Moreover, the change must further the best interests of the child. Id. at 14.07(a) (stating that the best interests of the child shall always be the primary consideration in determining matters of conservatorship, support and access); Randle v. Randle, 700 S.W.2d at 315.

Though now creatures of statute, the elements expressed in § 14.08(c) of the Family Code went undefined by the legislature. So, courts have been left to develop a body of common law construing them. For instance, they recognize that not every changed circumstance warrants modification. Jeffers v. Wallace, 615 S.W.2d 252, 253-54 (Tex.Civ.App.--Dallas 1981, no writ). Yet, many deem changes which may injuriously affect the child's best interest sufficient to require modification. Id.; Brown v. Brown, 500 S.W.2d 210, 216 (Tex.Civ.App.--Texarkana 1973, no writ). Those include, among other things, remarriage by a parent, poisoning the child's mind against a parent, or mistreatment of the child by a parent or step-parent. Jeffers v. Wallace, 615 S.W.2d at 253-54; Brown v. Brown, 500 S.W.2d at 215-16.

Additionally, the state maintains a paramount interest in fostering a stable home environment for children. Eason v. Eason, 860 S.W.2d 187, 190-91 (Tex.App.--Houston [14th Dist.] 1993, no writ); Neal v. Neal, 606 S.W.2d 729, 731 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.). To bolster this interest, jurists also hold that repeated changes in the child's home environment supply ground for redesignating managing conservators. E.g., Eason v. Eason, supra (child moving nine times within four years and mother's co-habitation with several men out of wedlock); Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex.App.--Houston [1st Dist.] 1988, no writ) (child moving several times and adjusting to presence of new sibling); Randle v. Randle, 700 S.W.2d at 316-17 (holding that repeated change in the child's routine was injurious to the child's welfare).

Similarly, a course of conduct pursued by the manager which hampers the ward's opportunities to favorably associate with the other parent may also suffice. E.g., Guy v. Stubberfield, 666 S.W.2d 176, 179 (Tex.App.--Dallas 1983, no writ) (parent refusing to abide by a custody arrangement previously agreed to); Gunther v. Gunther, 478 S.W.2d 821, 829-30 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.) (stating that "it is certainly necessary that children know, love, and be with each of their parents"); McLeod v. McLeod, 9 S.W.2d 141, 142 (Tex.Civ.App.--Eastland 1927, no writ) (denial by parent of child's access to other parent). No one can escape the fact that children are born to a couple. Whether married or not, the participants in that coupling have the natural and legal obligation to care for and nurture their offspring. In many respects, Texas jurisprudence also recognizes and enforces the child's entitlement to pursue and benefit from that association. E.g., Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990) (describing the interests protected by allowing offspring to recover for the wrongful death of a parent). To unjustifiably interfere with the parent/child relationship is reprehensible under the law, especially when motivated by the angst and pain inherent in a divorce. As long ago expressed in McLeod,

The child, during its formative period, has the right to have those having influence upon her refrain from implanting in her tender mind the seeds of hate and the cankerous beginnings of malice and ill will towards those whom she should cherish and respect ... While arrogance, superciliousness, and snobbishness are to be ... condemned, still a proper pride in one's ancestry and in the worthiness of one's parents is a necessary part of the equipment of a well-balanced person....

McLeod v. McLeod, 9 S.W.2d at 142. The trial judge below captured this truth in admonishing Ms. Haffner and Chandler that "you folks have divorced each other for whatever reason ... But the child didn't divorce either of you. And it's [the court's] obligation to see that the child has some semblance of parents and some semblance of order."

Application of Facts to Guidelines

The evidence revealed that since she gained managerial custody of Ash-Leah in July of 1992, Ms. Haffner has moved the young girl to at least four places. The most distant was Alvarado, Texas, whereat the child resided with an aunt for four months. During that period Ash-Leah and Chandler were effectively prohibited from communicating with each other because Ms. Haffner refused to disclose the girl's location. More importantly, the appellant conceded at trial that this was not in her daughter's best interests.

Additionally, the post-divorce arrangements experienced by the child while with her mother included living in quarters so cramped that Ash-Leah had to sleep either with her mother, or on a couch, or on the floor, or in a bedroom with male and female step-siblings. At one point the mother and child also resided in an apartment, to which the electricity had been disconnected. The trial court could well have deemed these substantial, material, and harmful changes worthy of alleviation.

That Ms. Haffner co-habitated with a male, conceived...