Turner v Turner

• Decision Date: 17 May 2001
• Docket Number: No. 01-99-01438-CV,01-99-01438-CV
• Citation: Turner v Turner, 47 S.W.3d 761 (Tex. App. 2001)
• Parties: <!--47 S.W.3d 761 (Tex.App.-Houston 2001) KATHY DIANE TURNER, Appellant v. TOMMY LAMAR TURNER, Appellee Court of Appeals of Texas, Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 761

47 S.W.3d 761 (Tex.App.-Houston [1st Dist.] 2001)

KATHY DIANE TURNER, Appellant v TOMMY LAMAR TURNER, Appellee

No. 01-99-01438-CV

Court of Appeals of Texas, Houston (1st Dist.)

May 17, 2001.

On Appeal from the 247th District Court Harris County, Texas Trial Court CauseNo. 95-36849

Panel consists of Justices Wilson, Hedges, and Smith.^*

OPINION

Hedges, Justice

This is an appeal from an order granting a motion to modify conservatorship in a suit affecting the parent-child relationship.We affirm.

Background

AppellantKathy Diane Turner(Mother) and appelleeTommy Lamar Turner(Father) were divorced on November 9, 1995.The final decree of divorce named Mother sole managing conservator and Father possessory conservator of their 14-year-old daughter, Aeriel.

About 17 months later, in April 1997, Mother leased out her home and moved in with her brother.At that time, Aeriel moved in with Father.In October 1997, about six months later, Mother reconciled with Father and moved into his home, where Aeriel had already been living.Mother, Father, and Aeriel lived together in Father's home for about nine months.On July 1, 1998, Mother moved out of Father's home and into her own apartment.Aeriel then lived back and forth between both parents, staying two weeks with each.

In 1999, Father filed a motion to modify, seeking modification of the sole managing conservatorship to a joint managing conservatorship.Specifically, he requested that the court remove Mother as the sole managing conservator and appoint both Father and Mother as joint managing conservators.He sought to be primary joint managing conservator, with the right to determine the child's residence and domicile.

The trial court named Father temporary joint managing conservator, after which Aeriel lived exclusively with him.Mother and Father testified at the hearing on the motion to modify.About a month later, the trial court conducted an in-chambers interview with Aeriel, wherein she reiterated her desire to live with Father.On September 20, 1999, the trial court granted Father's motion to modify and appointed him joint managing conservator.

Mother appeals the order in four points of error, arguing that the trial court abused its discretion in granting Father's motion to modify because the evidence was insufficient to support: (1) the order; (2) the finding that the retention of Mother as sole managing conservator would be detrimental to the welfare of the child; (3) the finding that the appointment of Father as joint managing conservator would be a positive improvement and in the best interests of the child; and (4) other various findings of fact and conclusions of law.

Standard of Review

We give wide latitude to a trial court's decision on custody, control, possession, and visitation matters.Gillespie v. Gillespie, 644 S.W.2d 449, 451(Tex.1982);Voros v. Turnage, 856 S.W.2d 759, 765(Tex. App.--Houston [1st Dist.]1993, writ denied).We will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion.Gillespie, 644 S.W.2d at 451.A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles.Worford v. Stamper, 801 S.W.2d 108, 109(Tex.1990);Graves v. Graves, 916 S.W.2d 65, 68-69(Tex. App.--Houston[1st Dist.]1996, no writ).

Modification of Conservatorship

The modification requirements depend on whether the parent seeks to supercede a sole managing conservator, simply change the terms of a joint managing conservatorship, replace a joint with a sole managing conservatorship, or replace a sole with a joint managing conservatorship.See generallyTex. Fam. Code Ann. §§ 156.101-.203(Vernon 1996).In this case, Father seeks to replace the sole managing conservatorship with a joint managing conservatorship.On a parent's request, the trial court may modify a sole managing conservatorship to a joint managing conservatorship if the court finds:

(1) the circumstances of the child or the sole managing conservator have materially and substantially changed since the rendition of the order;

(2) retention of a sole managing conservatorship would be detrimental to the welfare of the child; and

(3) the appointment of the parent as a joint managing conservator would be a positive improvement for and in the best interest of the child.

Tex. Fam. Code Ann. § 156.104(Vernon 1996).¹

Mother does not dispute the first prong regarding a material and substantial change in circumstances.We therefore review the record with regard to the remaining two modification factors (1) retention of sole managing conservatorship would be detrimental to the child's welfare and (2) appointment of joint managing conservator would be positive improvement for and in the child's best interest.

(1) Retention is Detrimental to Child's Welfare

Mother contends that the trial court abused its discretion in finding that her retention as sole managing conservator would be detrimental to the welfare of the child under Family Code section 156.104.²

The Family Code does not define "detrimental to the welfare of the child."See generallyTex. Fam. Code Ann. §§ 156.001-.409(Vernon 1996& Supp. 2001).Nor does the Code list factors that a trial court must consider in deciding whether these terms are fulfilled.Seeid.Likewise, appellate court opinions on custody issues do not articulate clear definitions, but instead focus on factual distinctions in determining whether the trial court abused its discretion.See, e.g., Gillespie, 644 S.W.2d at 451.Under these vague guidelines, we turn to the facts contained in this record.

Aeriel testified during the in-chambers interview that she and Mother argue quite often, do not get along well, and have problems communicating.She explained that it would be emotionally difficult for her to live with Mother because Mother"didn't know if she could have a strong relationship with [Aeriel] because [Aeriel] hurt her by not wanting to be with her."The following is an excerpt from the in-chambers interview:

The Court: Why don't you want to live with your mom?

The Child: Because I don't feel like -- we don't get along that well.And I don't feel like there's a connection between us.I can't talk to her about a lot of things, but I just feel more comfortable with my dad.And I have a lot more fun with my dad.

The Court: What do you think would happen to you, Aeriel, as a person and as a student if you had to continue -- had to go back living with your mom? . . . Both your grades and how you feel inside.And how would it effect you emotionally / mentally?

The Child: I would be upset because I'm not with my dad, and that's who I really want to be with.But, gradewise, I think that my grades would still be up.

The Court: Would it be bad for you to live with your mom?

The Child: It wouldn't be bad; but it would be hard for me emotionally, yeah.Because she asked me if I really wanted to live with my dad.I told her that I did.She said that she didn't know if she could have a strong relationship with me because I have hurt her by not wanting to be with her.I asked her, "If I did, you wouldn't want to have a relationship with me?"She said that she wasn't for sure, but she didn't know how she would feel about it.That upset me really bad, that breakdown right there.That's putting me even more on the spot that I might not have a relationship with my mom at all.I still want to have a relationship with her.But I, also, want to be happy.Since I've been living with my dad, I go back over there every other weekend and on Wednesday.Me and her have been getting along good.It gives me a break and her a break from me.It's like a fresh start again.You know what I mean?So we get along well.

The significant theme of Mother's defense was that Aeriel's school grades declined while she lived with Father pursuant to the court's temporary order.Mother argues that Aeriel's problems arose because Father did not monitor her school work.In contrast to Mother's allegations, however, Aeriel explained that her poor performance the previous semester was due to her arguments with Mother, which arose because Mother was unhappy with Aeriel's desire to live with Father.Aeriel explained that those arguments negatively impacted her school work, as follows:

The Court: What happened last semester?

The Child: Last semester there was a lot of pressure on me because whenever I was talking to my mom she wasn't happy.She didn't understand why I went with my dad.So, I went over there.And we were always arguing a lot about coming here and why I don't want to live with her.And my mind wasn't on my work.

While Mother testified that she helped Aeriel with school work, Aeriel stated that Mother helped her only one weekend to study for an exam.When the school called Mother to inform her that Aeriel did not return her progress report regarding problems in certain subjects, Mother did not talk to Aeriel or her teachers.Nor did she inform Father of the telephone call.

Mother testified that she was uncertain whether Father helped Aeriel with homework.In contrast, however, Aeriel testified that Father helped her with homework, looked over her homework at night to ensure it was complete, and encouraged her to seek tutoring if she had difficulty.Father testified that he disciplined Aeriel for her poor grades and for not showing the progress report to him and Mother.Father described his plans for the following school year to keep current with classes and teachers to avoid these problems in the future.These plans included a written form, which would allow him to contact teachers and to be informed about class work, homework, quizzes, tests, and projects for every subject.He also made arrangements with the cheerleading sponsor to provide tutoring and to immediately contact him regarding any problems.

The evidence showed that...