Oglesby v. Silcott

• Decision Date: 30 July 1981
• Docket Number: No. 1443,1443
• Citation: 620 S.W.2d 820
• Parties: Bobby OGLESBY, Appellant, v. Ronan Dale SILCOTT, Appellee.
• Court: Texas Court of Appeals

Page 820

620 S.W.2d 820

Bobby OGLESBY, Appellant, v. Ronan Dale SILCOTT, Appellee.

No. 1443.

Court of Civil Appeals of Texas, Tyler.

July 30, 1981.

Larry Daves, Tyler, for appellant.

Jerry Bain, Bain, Files, Allen & Hurst, Tyler, for appellee.

SUMMERS, Chief Justice.

This is a child custody case. The appeal is by Bobby Oglesby, maternal grandfather, from a judgment denying his application for designation as managing conservator of his grandson and conditioning his visitation as possessory conservator on the posting of a bond.

We affirm.

Ronan Dale Silcott, appellee, and Brenda Sue Oglesby Silcott were divorced on October 31, 1977, in Smith County, Texas. The divorce decree named Ronan as managing conservator and Brenda as possessory conservator of their only child, Michael Thomas Silcott, a son born March 4, 1971.

In September 1978 Ronan filed a motion to modify Brenda's visitation privileges, and after a hearing thereon the court rendered an order (signed April 4, 1979, filed April 5 and hereafter referred to as the April 4, 1979 order) restricting Brenda's visitation privileges as possessory conservator to three ten-hour visits with said child per month. This order continued the appointment of Ronan as managing conservator. At the time of this order Ronan was living in Whitehouse, Texas, attending the University of Texas at Tyler. Brenda was living unmarried at Arp, Texas, with a man and working at the General Electric Plant in Tyler. Ronan obtained his degree in education at the university in August 1979, and not finding a teaching position in the Tyler area, he and Michael moved to Hebron, Ohio, on August 17, 1979, to live with his parents on a small farm. He secured employment as a substitute teacher there and has continued to be so employed. After Ronan informed Brenda of his plans to move to Ohio, Brenda, on August 16, 1979, filed a motion to modify in suit affecting parent-child relationship and ancillary thereto was granted a temporary order restraining removal of the child from the jurisdiction of the court. At a hearing on August 24, 1979, the court denied Brenda's application for injunctive relief; although served with notice, Ronan left for Ohio and did not appear at the hearing.

In September of 1979, Mr. Oglesby, the appellant, went to Hebron, Ohio, to visit Michael. He also filed two motions seeking to be appointed managing conservator or be granted visitation privileges. The first was a motion to modify, filed September 12, 1979, seeking to be named temporary managing conservator; a hearing was denied on this motion pursuant to Tex.Fam.Code Ann. § 14.08(d) and (e). The second, filed October 11, 1979, was a motion to intervene in suit affecting parent-child relationship in which appellant sought to modify the custody order of April 4, 1979, requesting that he be named managing conservator of Michael, or alternatively, that he be granted reasonable access to the child.

On December 17, 1979, appellant Oglesby, accompanied by his daughter Brenda went to Hebron, Ohio, where, without any prior notice to Ronan, they picked up Michael at school. Appellant put Brenda and Michael on a plane and they flew to Austin where she was then living. Appellant followed them to Texas in his van.

On January 8, 1980, Ronan filed an application for writ of habeas corpus and writ of attachment in this matter. Pursuant to the court's order of January 11, 1980, Brenda turned Michael over to the Tyler-Smith County Welfare Unit, this agency having been named by the court as temporary managing conservator pending hearing to determine parent-child relationship.

At the hearing in the case at bar on May 23, 1980, the court heard the application for writ of habeas corpus and request for writ of attachment filed by appellee on January 8, 1980, the motion to modify filed by Brenda on August 16, 1979, and the motion to intervene filed by appellant on October 11, 1979. The parties waived a jury and submitted all matters in controversy to the court.

In its judgment, the court found that Brenda and appellant had illegally confined and restrained the child; that Ronan was the person entitled by law to possession of Michael and ordered that he be returned to Ronan; that Ronan be reappointed as managing conservator and Brenda and appellant each be appointed a possessory conservator of said child with visitation privileges as set forth ¹; that the visitation rights in which the possessory conservators will have actual possession of the child are conditioned upon the possessory conservator(s) posting a continuing bond in the amount of $10,000.00 with the clerk of the court conditioned that should said possessory conservator(s) not return said child at the conclusion of each period of possession according to this order and the schedule submitted to the managing conservator by the possessory conservator(s), then said bond shall be forfeited.

From this adverse judgment, the grandfather, Bobby Oglesby, has appealed, predicating his appeal upon three points of error.

The record before us is without findings of fact or conclusions of law. Under these circumstances, the well-settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App. Tyler 1965, no writ).

In his first point of error appellant grandfather complains that trial court erred in not appointing him as managing conservator when it was in the best interest of the child to do so.

A suit for modification of a prior custody order is authorized by Tex.Fam.Code Ann. § 14.08 (Vernon Supp.1980) which provides in part that:

(c) After a hearing, the court may modify an order or portion of a decree that:

(1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child... (Emphasis added.)

In order to show a material and substantial change in circumstances, the movant must establish by a preponderance of the evidence both (1) that retention of the present managing conservator would be injurious to the welfare of the child and (2) that the appointment of a new managing conservator would be a positive improvement. Sutter v. Hendricks, 575 S.W.2d 308, 310 (Tex.Civ.App. Dallas 1978, writ ref'd n. r. e.); Thompson v. Uzzell, 541 S.W.2d 499, 501 (Tex.Civ.App. Tyler, no writ).

If both of these requirements are not proven by a preponderance of the evidence, no change in the managing conservatorship should be made. Sutter v. Hendricks, supra; Thompson v. Uzzell, supra; D. W. D. v. R. D. P., 571 S.W.2d 224, 225-26 (Tex.Civ.App. Fort Worth 1978, writ ref'd n. r. e.); Davis v. Duke, 537 S.W.2d 519, 521 (Tex.Civ.App. Austin 1976, no writ).

Another criterion required for a change of custody is set forth in Tex.Fam.Code Ann. § 14.07(a) (Vernon 1975) which provides the best interest of the child shall be a primary consideration. Absent evidence of a material and substantial change in circumstances, the court does not reach the question of what is in the best interest of the children. Watts v. Watts, 563 S.W.2d 314, 315 (Tex.Civ.App. Dallas 1978, writ ref'd n. r. e.).

Appellant and his daughter Brenda each sought to modify the court's order of April 4, 1979, in which the court continued the appointment of appellee as managing conservator and restricted the visitation rights of Brenda as possessory conservator. Appellant was a witness but not a party in the hearing which limited Brenda's visitation. At the time of the entry of the April 4, 1979, order, all who are not parties to this matter resided in Smith County, Texas. At the time of the instant trial, Ronan was residing in Hebron, Ohio, and continuing his work as a teacher; Brenda was residing with her father, the appellant, in his mobile home at a trailer park in Whitehouse. Brenda was unemployed from June 21, 1979, until November 1979. She moved to Austin in August 1979 where she worked first for a construction company and later for Spenco Dresser. About a week before the present trial, she obtained a job in Tyler at Virginia Kennels. While living at Arp and Austin, Brenda had a problem with prescription drugs and attended M.H.M.R. sessions. At the time of trial she testified she had not had any type of drug since November 1979. ...