Warchol v. Warchol, 09-92-143

• Decision Date: 15 April 1993
• Docket Number: No. 09-92-143,09-92-143
• Citation: 853 S.W.2d 165
• Parties: R.M. "Ric" WARCHOL, Appellant, v. Leslie Doreen WARCHOL, Appellee. CV.
• Court: Texas Court of Appeals

Page 165

853 S.W.2d 165

R.M. "Ric" WARCHOL, Appellant, v. Leslie Doreen WARCHOL, Appellee.

No. 09-92-143 CV.

Court of Appeals of Texas Beaumont.

April 15, 1993.

Bruce Neill Smith, Beaumont, for appellant.

Tom Mulvaney, Strong, Pipkin, Nelson & Bissell, Beaumont, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

PER CURIAM.

This appeal comes to us from the 317th District Court of Jefferson County, Texas, Honorable James M. Farris, Judge presiding. Appellant, R.M. "Ric" Warchol contends that the trial court abused its discretion in denying appellant's Motion to Modify; in granting appellee's Motion to Modify the terms and conditions for the possession and access to the child; and in assessing attorney's fees against appellant in the sum of $5,000. We overrule appellant's three points of error and affirm the judgment of the trial court.

Factually, appellant R.M. "Ric" Warchol and appellee Leslie Doreen Warchol were divorced on September 25, 1990 by order of the 317th Judicial District Court of Jefferson County, Texas. One child was born to the marriage between appellant and appellee. This female child was born February 14, 1982. In the original Decree of Divorce, appellee was appointed the primary joint managing conservator with the right to designate the residence and domicile of the child.

In January 1991, appellee informed appellant that she and the child would be moving to Chicago, Illinois during the summer of 1991. According to the Decree of Divorce, appellee was required to give notice to the clerk of the court of any change of address within ten days after the date of change of address. On or about the 21st day of February 1991, appellee notified appellant, in writing, that in March, after the selling of the home at 8890 Gerald Drive in Beaumont, Texas to appellant, she would be moving to an address in Port Neches, Texas to allow the child to complete the spring semester of school. Appellee further informed appellant that during the summer of 1991 she and the child would move temporarily to appellee's brother's residence in Wheeling, Illinois, until such time that appellee could obtain an apartment for her and the child.

When appellee failed to give appellant the exact date of the intended relocation to Wheeling, appellant filed his Motion for Contempt against appellee seeking a fine and imprisonment for failure to properly notify the clerk's office. The record reveals that the Child Support Office of Jefferson County, Texas, received notification of the move from appellee on July 11, 1991. The actual move occurred on July 12, 1991. For obvious reasons, the trial court failed to make a finding that appellee was in contempt of court.

In response to appellant's Motion for Contempt, appellee filed a counter motion seeking to increase child support and a modification of the terms of the original Divorce Decree regarding visitation. Appellee, also filed a counter motion for contempt for reason that appellant failed to timely pay child support payments seeking a fine, jail time, and attorney's fees. In response to appellee's counter motions, appellant sought modification of the original Divorce Decree, asking the Court to reduce child support from $300 per month to a lesser sum. Appellant then amended this Motion to Modify by seeking a change of primary custody.

The trial court determined that the grounds for modification had been met by appellee in connection with her request that the terms and conditions for visitation with the child be modified. The evidence showed that the child was traveling from Illinois to Texas and back to Illinois at least two times per month on a regular basis. The parties were unable to agree on the cost of the extensive air travel and various problems developed between them. The court did not deem it to the child's best interest for the child to continue to travel twice per month between Chicago and Beaumont to visit her father. The court changed the terms and conditions whereby the child would fly to Texas once a month at the expense of the father and appellant could travel to Illinois once a month to visit the child. The mother, appellee, was required to pay for round-trip visits between the child and the appellant on two occasions per year. The trial court gave details as to why the change was in the best interest of the child under the facts and circumstances and granted a modification in this regard. Appellant now takes issue with the trial court's determination.

Evidence showed that appellant was consistently late in paying his court ordered child support, however the trial court determined not to hold appellant in contempt. Appellee's request for a modification of the original Divorce Decree by increasing appellant's obligation to pay child support was also denied by the trial court.

The trial court awarded attorney's fees to appellee's attorney in the amount of $5,000 from which award appellant also makes his appeal. Appellee has brought no counter points of error regarding the trial court's refusal to increase child support payments nor for its failure to find appellant in contempt for late payment of child support.

On March 13, 1992 the trial court entered its findings of fact and conclusions of law. The trial court determined that the original designation of primary joint managing conservatorship should not be changed, but that a modification of the existing Decree of Divorce was warranted due to the change in circumstances involved.

Appellant's point of error one contends that the trial court abused its discretion in denying appellant's Motion to Modify the terms and conditions of the existing joint managing conservatorship decree by appointing appellant as the primary managing conservator. Appellant correctly states that the child's best interest is always the court's primary consideration in determining questions of managing conservatorship. TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1993). Any right of the parent must yield to that primary consideration. Holitzke v. Holitzke, 476 S.W.2d 360, 362 (Tex.Civ.App.--Tyler 1972, writ dism'd); Huffman v. Huffman, 408 S.W.2d 248 (Tex.Civ.App.--Amarillo 1966, no writ).

It is appellant's position that the child's best interest cannot be served where one of the joint managing conservators consistently fails to cooperate with the other party in matters of the child's welfare. Appellant contends that appellee had a history of repeated violations of the provisions of the Divorce Decree showing a failure to cooperate in decisions regarding the child's welfare. Appellant contends that on numerous occasions appellee made derogatory remarks about appellant in the child's presence. Appellee admits that on one occasion appellee did talk to appellant's mother about appellant's propensity to lie, however, the record is void of any pattern of negative and derogatory comments supportive of appellant's position.

In a Motion to Modify where conservatorship has been previously established, the burden of proof is upon the Movant to come forth with evidence sufficient to convince the trier of fact that a modification would be justified. See Jones v. Cable, 626 S.W.2d 734 (Tex.1981); Ogrydziak v. Ogrydziak, 614 S.W.2d 474, 477 (Tex.Civ.App.--El Paso 1981, no writ); Kelly v. Novak, 606 S.W.2d 25, 30 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ). It has previously been stated that a trial court has broad discretion in deciding the issue of modification and its judgment will not be reversed except on a clear showing of an abuse of discretion. Doyen v. Doyen, 713 S.W.2d 370 (Tex.App.--Beaumont 1986, no writ). In Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.--Dallas 1981, no writ), the court observed:

The question of custody of a child is addressed to the sound discretion of the trial court when it sits as a trier of fact. [citation omitted] This rule is based on the fact that the trial court is in the best position to observe the demeanor and personalities of the witnesses and can "feel" the forces, powers and influences that cannot be discerned by merely reading the record.

Our trial court found as a fact that the welfare of the child was the subject of the suit; that the appointment of R.M. "Ric" Warchol, appellant, as primary joint managing conservator would not be to the best interest of the child; that the evidence submitted by appellant was wholly insufficient to substantiate his claim that he should be appointed as primary joint managing conservator; that appellant presented no corroborative witnesses; and that all credible evidence supported the contention that it was in the child's best interest to have Leslie Doreen Warchol remain as the child's primary joint managing conservator. The trial court further found that to remove appellee as primary joint managing conservator would not be in the best interest of the child. The trial court correctly concluded as a matter of law that the burden of proof in matters before the court is by a preponderance of the evidence. See TEX.FAM.CODE ANN. § 11.15(a) (Vernon 1986). The trial court then concluded that appellant failed to meet his burden in this regard. This Court after a complete review of the evidentiary record before us, concludes that the trial court was indeed correct in determining that appellant had failed to meet his burden of proof requirement at the trial court level. Neither the record nor appellant's brief presents any evidence or legitimate argument that the trial court abused its discretion in refusing to grant appellant's application for modification of the original Divorce Decree. Appellant's point of error one is overruled.

In point of error two, appellant contends that the trial court abused its discretion in modifying the terms and conditions for the possession of and access to the...