Thompson v. Thompson

• Decision Date: 19 March 1992
• Docket Number: No. 13-91-107-CV,13-91-107-CV
• Citation: 827 S.W.2d 563
• Parties: Donnie Hughes THOMPSON, Appellant, v. Nancy Elizabeth THOMPSON, Appellee.
• Court: Texas Court of Appeals

Page 563

827 S.W.2d 563

Donnie Hughes THOMPSON, Appellant, v. Nancy Elizabeth THOMPSON, Appellee.

No. 13-91-107-CV.

Court of Appeals of Texas Corpus Christi.

March 19, 1992.

Rehearing Overruled April 30, 1992.

Donnie Hughes, Harlingen, for appellant.

Peter C. Gilman, Brownsville, for appellee.

Before NYE, C.J., and FEDERICO G. HINOJOSA, Jr. and BISSETT, ¹ JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Donnie Hughes Thompson appeals the modification of the conservatorship of, the child support for, and the periods of possession of the Thompsons' minor son. Appellant alleges error in the sufficiency of the evidence to support the change of conservatorship from joint managing conservatorship to sole managing conservatorship, to support a reduction of his periods of possession of the minor child and to support an increase in child support. We affirm the trial court's modification order in part and reverse and remand in part.

The Thompsons were divorced on November 15, 1985. The Thompsons agreed to be appointed joint managing conservators of their sons Walter, then 17 years of age, and William, then 2 years of age, and requested that the trial court approve the agreement. The trial court approved the agreement and appointed appellant and appellee joint managing conservators of the two minor children. ² Appellee was granted the primary custody and control of the children and was given possession of the children at all times not specifically granted to appellant. Appellant was ordered to pay child support in the amount of $200 per month and was granted possession of William on certain hours during each week and on designated weekends and holidays. Walter attained the age of 18 years on December 27, 1985. On December 23, 1986, the trial court modified appellant's periods of possession of William without substantially changing the total amount of appellant's possession time.

On June 28, 1990, appellant filed a motion to modify periods of possession and to reduce child support, alleging that the circumstances of the child or a person affected by the prior orders had materially and substantially changed since the rendition of the prior orders, that the prior orders had become unworkable and inappropriate under the existing circumstances, and that he could not afford to pay child support. Appellant also filed a motion for contempt against appellee, alleging that appellee had refused to allow him to have possession of his minor son. Appellee subsequently filed a motion for contempt and a counterclaim against appellant, alleging that appellant had not paid child support as previously ordered by the court and requesting that she be appointed sole managing conservator of the child, that child support be increased, and that appellant's periods of possession be decreased.

The trial court found appellant in contempt of court for failing to pay child support for 25 months and found that he was in arrears in the amount of $5,000. The court assessed punishment and ordered appellant to pay the child support arrearage in monthly installments. The court also found appellee in contempt of court for interfering with appellant's possession of the minor child, assessed punishment, and ordered appellee not to interfere with appellant's periods of possession. The court denied appellant's motion to modify, granted appellee's counterclaim, and ordered that appellee be appointed sole managing conservator of the child and that appellant pay child support in the amount of $350 per month. The court also granted appellant visitation with the child in accordance with a schedule supposedly attached to the modification order. From that order of modification, this appeal ensues.

Appellant's first point of error alleges that the trial court erred because there was insufficient evidence to support the change of conservatorship from joint managing conservatorship to sole managing conservatorship and that such evidence is required by Tex.Fam.Code Ann. § 14.081(d) (Vernon Supp.1992).

Tex.Fam.Code Ann. § 14.081(d) sets forth the requirements for replacing joint managing conservatorship with sole managing conservatorship. Section 14.081(d) provides as follows:

(d) After a hearing, on the motion of one or both of the joint managing conservators or on the court's own motion, a court may replace a joint managing conservatorship with a sole managing conservatorship if:

(1)(A) the welfare of the child is a matter of immediate and serious concern;

(B) there has been a substantial and unexcused violation of the terms and conditions established in the existing conservatorship decree; or

(C) the circumstances of the child or one or both of the joint managing conservators have so materially changed since the rendition of the decree that it has become unworkable or inappropriate under existing circumstances; and

(2) The appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child.

Appellant, in his motion to modify, pleaded material and substantial change in the circumstances of the child or a person affected by the prior order since the rendition of the prior order. Appellant also pleaded that the prior order had become unworkable and inappropriate under the existing circumstances. Admissions in trial pleadings are regarded as judicial admissions in the case in which that pleading is filed, require no proof of the admitted fact and authorize the introduction of no evidence to the contrary. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983); Crawford v. Williams, 797 S.W.2d 184, 184 n. 1 (Tex.App.--Corpus Christi 1990, writ denied); McCaskill v. McCaskill, 761 S.W.2d 470, 472 (Tex.App.--Corpus Christi 1988, writ denied).

Appellant, therefore, judicially admitted that material and substantial changes in the circumstances of the child, appellant or appellee had occurred since the rendition of the prior order and that the prior order had become unworkable and inappropriate under the existing circumstances. Appellant cannot now challenge the sufficiency of the evidence to support the change of conservatorship on these grounds. McCaskill, 761 S.W.2d at 472.

"The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child." Tex.Fam.Code Ann. § 14.07(a) (Vernon Supp.1992). Trial courts have wide discretion in determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.--Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best interest of the children with regard to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court and will only be reversed upon a determination that the trial court has abused its discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.-- Corpus Christi 1990, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

No findings of fact or conclusions of law were filed in this case. Appellant raises no point of error regarding this failure. ³ When findings of fact are not properly requested and none are filed, it is implied that the trial court made all the necessary findings of fact to support its judgment. Saldana v. Saldana, 791 S.W.2d 316, 319 (Tex.App.--Corpus Christi 1990, no writ).

When we determine whether some evidence supports the judgment and implied findings of fact, we consider only the evidence that is most favorable to the issue and completely disregard the evidence that is opposed to it. Worford, 801 S.W.2d at 109. When we determine whether the evidence is sufficient to support a finding, we consider all of the evidence to see if the evidence is so weak that we should set aside the finding and order a new trial. Blanco v. Gracia, 767 S.W.2d 896, 897 (Tex.App.--Corpus Christi 1989, no writ). We affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. Worford, 801 S.W.2d at 109.

We have reviewed the record and find that it includes transcriptions of conversations which appellant tape recorded on several occasions when he arrived at appellee's home to pick up the child. In these conversations, appellant refused to speak with appellee in front of the child, the child cried because there was "going to be another fight," and law enforcement officers had to be called to oversee the possession change because of disagreements between appellant and appellee. The record also includes evidence concerning appellee's request in 1987 for a writ of attachment from the trial court to force appellant to return the child to appellee. Appellee testified that she and appellant had not been able to mutually agree to any modification of any periods of possession since she had obtained the writ of attachment.

Appellee further testified that appellant had interfered with the child's pre-school activities. Appellee felt that William needed to interact with other children and had enrolled him in a pre-school program. Appellant was supposed to have possession of the child on Tuesday and Wednesday evenings and was supposed to pick up the child after school. Appellant would pick up the child at pre-school on Tuesday mornings, shortly after he was dropped off by appellee, and would return him to pre-school on Thursday afternoon, shortly before he was to be picked up by appellee. Appellee testified that the child was now enrolled in elementary school and that appellant was visiting with the child during school hours. Appellant's visits distracted the child from school activities and caused him to exhibit unusual behavior. We cannot say that ...