Zeifman v. Michels

• Citation: 212 S.W.3d 582
• Decision Date: 04 August 2006
• Docket Number: No. 03-05-00533-CV.,03-05-00533-CV.
• Parties: Clifford ZEIFMAN, Appellant, v. Sheryl Diane MICHELS, Appellee.
• Court: Court of Appeals of Texas

212 S.W.3d 582

Clifford ZEIFMAN, Appellant, v. Sheryl Diane MICHELS, Appellee.

No. 03-05-00533-CV.

Court of Appeals of Texas, Austin.

August 4, 2006.

Rehearing Overruled August 30, 2006.

James A. Vaught, McCullar Vaught, PC, Jan Soifer, Lawrence Soifer Satija, L.L.P., Austin, for Appellant.

John Barrett, Karl E. Hays, Law Offices of John Barrett, Austin, for Appellee.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

OPINION

JAN P. PATTERSON, Justice.

Clifford Zeifman appeals the trial court's modification order of a divorce decree giving appellee Sheryl Diane Michels the exclusive right to make decisions concerning their daughter's education. In two issues, he complains that the trial court abused its discretion in finding a material and substantial change in circumstances sufficient to warrant a modification and in determining that the modification was in the best interest of the child. Because the evidence is legally insufficient to support a modification, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Zeifman and Michels were married on January 12, 1992. Two children were born of their marriage: G.L., a son, on August 13, 1994, and A.A., a daughter, on February 16, 1997. A divorce decree was signed on August 4, 1998, based upon an "irrevocable mediated settlement agreement" that was filed with the court and incorporated into the decree. See Tex. Fam.Code Ann. § 6.602 (West 2006). In the decree, the parties agreed that its provisions could be modified by a court of competent jurisdiction.

The decree named both parents as joint managing conservators. As to the children's education, the decree included a negotiated agreement:

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that the children shall attend the University of Texas Lab School until such a time as the children are of the age to attend elementary school. The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that, at that time, the children shall attend the public school in the following order of priority for elementary school: (1) Bryker Woods; or (2) Casis; provided, however, that if neither party lives in a residential area eligible to attend either Bryker Woods or Casis, then the children shall attend elementary school which the children are eligible to attend, at the highest rated school, the highest rating being determined by the annual TAAS testing, using the previous year's rankings, or shall attend another elementary school to which the parties agree in writing. The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that for middle school, the children shall attend the middle school into which the children's elementary school feeds. The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that for high school, the children shall attend the high school into which the children's middle school feeds.

The decree also contained a provision specifying a mechanism if the parties were unable to agree:

The Court finds that the parties have agreed and IT IS THEREFORE ORDERED that if the parties cannot agree on educational decisions for a child, the parties shall follow the recommendations of the person that is the child's teacher at the time of the decision. IT IS ORDERED that, as child support, Clifford Zeifman and Sheryl Diane Michels Zeifman shall each pay . . . half (½) of the costs referable to the children's attendance at the University of Texas Lab School.

At the time of the divorce, Michels lived in the house that had been the couple's home prior to the divorce, which was within the geographical boundaries for enrollment at Bryker Woods elementary school. Zeifman moved into a house across the street from the school.

Although the parties intended for their son, G.L., to attend Bryker Woods, they learned while he was attending kindergarten that he had learning difficulties. They were able to reach an agreement to move him to a private school that both parents agreed was more suitable to his special needs.

A.A. entered the first grade at Bryker Woods. In April 2004, when A.A. was still in the first grade, Michels applied for her admission to St. Andrew's Episcopal School for the next school year. She did not notify Zeifman of the application. As part of her application, Michels included a recommendation from A.A.'s first-grade teacher at Bryker Woods, and A.A. was tested to determine her academic suitability. On May 3, A.A. was placed on a waiting list for admission and Michels notified Zeifman of her decision to apply for A.A.'s admission to St. Andrew's. In June, A.A. was accepted for admission to the school.

Zeifman objected to the change of schools and insisted that the parties follow the decree, which provided for A.A. to continue her education at Bryker Woods. Michels consulted with A.A.'s first-grade teacher at Bryker Woods who had supplied the application recommendation. The teacher advised Michels she thought "it would be best if [A.A.] stayed at Bryker Woods."

On July 19, 2004, Michels filed a Petition to Modify Parent-Child Relationship, asking the court to modify the decree and award her the exclusive right to make educational decisions regarding A.A. The petition stated that the order to be modified was the Agreed Final Decree of Divorce that was rendered on August 4, 1998. Michels alleged that (i) the circumstances of "the children or of one or both of the joint managing conservators have materially and substantially changed since the rendition of the order such that the provisions of the Agreed Final Decree of Divorce regarding education are no longer appropriate and in the best interest of the children who are the subject of this suit," and (ii) A.A. had been accepted for admission to St. Andrew's which was a "more exceptional educational opportunity than either [her current school] Bryker Woods or Casis elementary schools."

After a hearing, the trial court modified the decree to provide that Michels has the sole right to make educational decisions for their daughter. The trial court determined that the circumstances of the child had materially and substantially changed since the date of the rendition of the original divorce decree. Finding only that "A.A. is different, times are different, you're remarried, life is different," the trial court concluded that these circumstances constituted material and substantial changes. Turning to the child's best interest, the trial court concluded that it was in the child's best interest for Michels to have the exclusive responsibility for educational decisions.

Although Zeifman requested findings of fact and conclusions of law, the trial court failed to file them.

ANALYSIS

In two issues on appeal, Zeifman contends that the trial court abused its discretion in modifying the divorce decree giving Michels the exclusive right to make decisions concerning A.A.'s education. Specifically, Zeifman complains that the trial court abused its discretion in finding a material and substantial change in circumstances sufficient to warrant a modification and that the modification would be in the best interest of the child because the evidence presented at trial was legally and factually insufficient as to both requirements.

Standard of Review

We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In the Interest of P.M.B., 2 S.W.3d 618, 622 (Tex. App.-Houston [14th Dist.] 1999, no pet.). The trial court's order will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Id. A trial judge is wisely vested with this discretion because she is best able to observe the witnesses' demeanor and personalities. A trial court abuses its discretion if it acts arbitrarily and unreasonably or without regard to guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (applying abuse of discretion standard with regard to child support order); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The mere fact that a trial court decided an issue in a manner differently than an appellate court would under similar circumstances does not establish an abuse of discretion. An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. P.M.B., 2 S.W.3d at 622.

Under an abuse of discretion standard, legal and factual sufficiency challenges to the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. In re D.M., 191 S.W.3d 381, 393 (Tex.App.-Austin 2006, pet. denied); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). Because we apply an abuse-of-discretion standard to a modification suit, the traditional sufficiency standards of review overlap the abuse of discretion standard, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex.App.-Austin 2002, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Echols, 85 S.W.3d at 477-78; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Echols, 85 S.W.3d at 478. The appellate court then proceeds to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court's decision was neither...