Peggy S. Jones v. Dennis L. Jones, No. 09-06-00238-CV (Tex.App.- Beaumont, Aug. 16, 2007)(default judgment, no answer, citation by publication)(Opinion by Justice Kreger)(Before Chief Justice McKeithen, Justices Gaultney and Kreger)
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 26,884
MEMORANDUM OPINION
In this restricted appeal, Peggy Jones appeals a divorce decree entered by default in Jasper County in favor of appellee Dennis Jones. Peggy asserts the trial court erred in granting the default judgment where citation was by publication and no statement of evidence was filed as part of the record. We reverse and remand.
Dennis filed a pro se petition for divorce listing a specific residence for Peggy in Louisiana. His petition includes a request that citation and notice issue as required by law. Six days later, he filed an "Affidavit for Citation by Publication" stating Peggy's residence was unknown to him and that he exercised due diligence to locate her, but was unable to do so. The trial court approved Dennis's request for citation by publication. (1) The record includes the Jasper County District Clerk's return stating that the citation was posted in the Jasper County Courthouse. The record also includes an affidavit by the publisher of The Jasper Newsboy, stating that The Jasper Newsboy included the citation in its publication for a consecutive week. Peggy did not file an answer. On January 20, 2006, the trial court entered by default a final divorce decree. On June 1, 2006, Peggy filed her Notice of Restricted Appeal.
To successfully attack a default judgment by restricted appeal, an appellant must (1) file notice of the appeal within six months after the final judgment is signed; (2) be a party to the suit; (3) not have participated at trial; and (4) show error apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004). No presumptions are made in favor of valid service in a restricted appeal from a default judgment. Wachovia Bank of Del., N.A. v. Gilliam, 215 S.W.3d 848, 850 (Tex. 2007).
Error on the face of the record is the only element at issue in this appeal. Peggy contends that error is apparent on the face of the record because of the trial court's failure to approve, sign, and file a statement of evidence as required by section 6.409 of the Texas Family Code. See Tex. Fam. Code Ann. § 6.409 (Vernon 2006). She argues that absent a statement of evidence, she is unable to confirm that the trial court inquired into the sufficiency of the diligence exercised in attempting to ascertain, for service purposes, her whereabouts. Section 6.409 governs citation by publication in divorce cases and provides the following:
§ 6.409 Citation by Publication
(a) Citation in a suit for dissolution of a marriage may be by publication as in other civil cases, except that notice shall be published one time only.
. . . .
(e) If the petition or the petitioner's attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as part of the record. Id.
Because section 6.409(a) states that citation in a divorce suit may be by publication "as in other civil cases, except that notice shall be published one time only[,]" we also consider Texas Rule of Civil Procedure 244 which applies where citation is made by publication. See Tex. R. Civ. P. 244. Rule 244 has a requirement similar to section 6.409(e)'s "statement of evidence" requirement where service has been made by publication and the defendant has failed to appear:
Where service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other cases; but, in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs. Tex. R. Civ. P. 244.
In essence, Rule 244 provides two procedural safeguards where service has been made by publication and no answer has been filed or appearance made: (1) the trial court must appoint an attorney to defend the suit and (2) a statement of the evidence, approved and signed by the judge, must be filed as part of the record. See id.
Peggy argues the second sentence in section 6.409(e) of the Texas Family Code applies here. We agree. Although the petition states there are no children under 18 born or adopted by the spouses, there is no oath "that no appreciable amount of property was accumulated by the spouses during the marriage," and the petition sets out marital property to be divided by the court. Because service was made by publication, Peggy failed to answer, and there is no oath described above, the trial court was required under section 6.409(e) and Rule 244 to (1) appoint an attorney on Peggy's behalf to defend her suit and (2) approve and sign a statement of evidence to be filed as part of the record. See Tex. R. Civ. P. 244; Tex. Fam. Code Ann. § 6.409(e). As with court decisions requiring compliance with Rule 244's requirements, we find failure to comply with either of these requirements under section 6.409(e) constitutes reversible error. See Montgomery v. R.E.C. Interests, Inc., 130 S.W.3d 444, 447 (Tex. App.--Texarkana 2004, no pet.); Isaac v. Westheimer Colony Ass'n, 933 S.W.2d 588, 591 (Tex. App.--Houston [1st Dist.] 1996, writ denied); Albin v. Tyler Prod. Credit Ass'n, 618 S.W.2d 96, 98 (Tex. Civ. App.--Tyler 1981, no writ); McCarthy v. Jesperson, 527 S.W.2d 825, 826 (Tex. Civ. App.--El Paso 1975, no writ); Villegas v. Shane-Michael Optical Co., 443 S.W.2d 571, 572 (Tex. Civ. App.--El Paso 1969, writ dism'd by agr.).
Because the record in this case does not contain a statement of the evidence as required by Rule 244 and section 6.409(e), the record contains error on its face and we sustain Peggy's sole issue on appeal. The trial court's decision probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1. The judgment of the trial court is reversed and the cause remanded for new trial.
REVERSED AND REMANDED.
__________________________________
CHARLES KREGER
Justice
Submitted on February 23, 2007
Opinion Delivered August 16, 2007
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. See Tex. R. Civ. P. 109.
Monday, August 27, 2007
Is an indigent defendant in a domestic violence protective order case entitled to appointed counsel?
Amarillo Court of Appeals sends case back to the trial court to provide answer, abates appeal.
Damon Cox v. Angie Simmons, No. 07-07-00320-CV (Tex.App.- Amarillo, Aug. 22, 2007)(Per Curiam)(Before Justices Campbell, Hancock and Pirtle)(family violence, protective order, IFP, appointment of counsel)
Appeal from County Court of Gray County
FROM THE COUNTY COURT OF GRAY COUNTY;
NO. 4585; HONORABLE RICHARD D. PEET, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Damon Cox, proceeding pro se, appeals the entry of a Family Violence Protective Order issued pursuant to Chapter 85 of the Texas Family Code on application of Appellee, Angela Simmons. (1) Pending before this Court is Cox's "Notice of Extinuating (sic) Circumstances and Case History," wherein he requests the appointment of counsel to "handle any further proceedings in this matter." (2)
Whether an indigent appellant is entitled to appointed counsel to prosecute an appeal concerning the rendition of a family violence protection order has not yet been decided by the courts of this State. The issue was discussed, however, in Striedel v. Striedel, 15 S.W.3d 163, 167 (Tex.App.-Corpus Christi 2000, no pet.), wherein the appellate court reversed the entry of a protection order on grounds unrelated to the appointment of counsel. In that case the court expressed concern regarding the trial court's failure to consider appointment of counsel for the appellant upon his filing of an affidavit of indigency. The court recommended that in the event of a retrial, the trial court "give additional consideration to appellant's right to appointed counsel." Id.
In arriving at its recommendation, the Corpus Christi Court of Appeals discussed the factors set out in Lassiter v. Department of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 27-33, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In determining when the right to appointed counsel may be invoked in a civil proceeding, the Supreme Court balanced the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), against the general presumption that there is a right to appointed counsel only in those situations where the indigent, if unsuccessful, may lose his personal freedom. Lassiter, 452 U.S. at 27. Those factors include: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of a private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The Legislature vests a district judge with discretion to appoint counsel to a civil litigant who makes an affidavit that he is too poor to employ counsel. Tex. Gov't Code Ann. § 24.016 (Vernon 2004). The Supreme Court has recognized that in some exceptional cases, considering the public and private interests at stake, the effective administration of justice is best served by appointing counsel to represent an indigent civil litigant. See Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). See also Knie v. Piskun, 23 S.W.3d 455, 461 (Tex.App.-Amarillo 2000, pet. denied).
Where incarceration is a possible result of a contempt proceeding, an indigent respondent is entitled to the appointment of counsel. See Tex. Fam. Code Ann. § 157.163(b) (Vernon 2002). See also Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997); Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (applying former § 14.32(f)). When the issue of indigency is raised, the trial court is obligated to inform the respondent of that right. Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.-Dallas 1988, no writ). Additionally, unless such advice is given, a party's failure to request counsel is not a waiver of his constitutional right to assistance of counsel. Id.
Furthermore, in a suit brought by a governmental entity to terminate parental rights of an indigent parent, that parent has a statutory right to appointed counsel. See Tex. Fam. Code. Ann. § 107.013(a)(1) (Vernon Supp. 2006). See also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Additionally, juveniles who may be found to be delinquent and subjected to loss of liberty also have the right to appointed counsel. See In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re D.A.S., 973 S.W.2d 296, 298 (Tex. 1998); Matter of R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.-El Paso 1997, no writ). The Legislature has mandated that indigent juveniles receive the assistance of appointed counsel on appeal. Tex. Fam. Code Ann. §§ 51.10(f)(2) and 56.01(d)(3) (Vernon 2002 & Supp. 2006).
An application for court-ordered mental health services also triggers the appointment of counsel for a proposed patient. Tex. Health & Safety Code Ann. § 574.003(a) (Vernon 2003). This Court, relying on Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), noted that in mental health proceedings, the State undertakes to act in parens patriae, thereby imposing on the State a duty to accord due process, which necessarily includes the duty to ensure that a person subjected to such proceedings is afforded the opportunity of legal counsel at every step therein, including on appeal. State for Best Interest & Protection of Ortiz, 640 S.W.2d 67 (Tex.App.-Amarilllo 1982, no writ).
Ultimately, the decision on whether due process requires the appointment of counsel for an indigent party to a proceeding involving a family violence protective order is a matter for the trial court to determine in its discretion on a case by case basis. That determination would, of course, be subject to appellate review. Therefore, we abate this appeal and remand the cause to the trial court to utilize whatever means it finds necessary to determine:
(1) whether Cox is indigent; and
(2) whether, based on the authorities cited herein, Cox should be afforded the assistance of appointed counsel in prosecuting this appeal.
The trial court shall enter an order either granting or denying Cox's request for appointment of counsel. If counsel is appointed to represent Cox, counsel's name, address, telephone number, and state bar number shall be provided to the Clerk of this Court. The trial court's order shall be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before Monday, September 17, 2007. Pending the filing of the supplemental clerk's record, or until further order of this Court, all appellate deadlines are suspended.
It is so ordered.
Per Curiam
1. Section 81.009 of the Texas Family Code permits an appeal from the rendition of a protective order.
2. Cox notes that his attorney of record appointed to handle allegations concerning the violation of the protective order is Joshua Woodburn.
Damon Cox v. Angie Simmons, No. 07-07-00320-CV (Tex.App.- Amarillo, Aug. 22, 2007)(Per Curiam)(Before Justices Campbell, Hancock and Pirtle)(family violence, protective order, IFP, appointment of counsel)
Appeal from County Court of Gray County
FROM THE COUNTY COURT OF GRAY COUNTY;
NO. 4585; HONORABLE RICHARD D. PEET, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Damon Cox, proceeding pro se, appeals the entry of a Family Violence Protective Order issued pursuant to Chapter 85 of the Texas Family Code on application of Appellee, Angela Simmons. (1) Pending before this Court is Cox's "Notice of Extinuating (sic) Circumstances and Case History," wherein he requests the appointment of counsel to "handle any further proceedings in this matter." (2)
Whether an indigent appellant is entitled to appointed counsel to prosecute an appeal concerning the rendition of a family violence protection order has not yet been decided by the courts of this State. The issue was discussed, however, in Striedel v. Striedel, 15 S.W.3d 163, 167 (Tex.App.-Corpus Christi 2000, no pet.), wherein the appellate court reversed the entry of a protection order on grounds unrelated to the appointment of counsel. In that case the court expressed concern regarding the trial court's failure to consider appointment of counsel for the appellant upon his filing of an affidavit of indigency. The court recommended that in the event of a retrial, the trial court "give additional consideration to appellant's right to appointed counsel." Id.
In arriving at its recommendation, the Corpus Christi Court of Appeals discussed the factors set out in Lassiter v. Department of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 27-33, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In determining when the right to appointed counsel may be invoked in a civil proceeding, the Supreme Court balanced the factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), against the general presumption that there is a right to appointed counsel only in those situations where the indigent, if unsuccessful, may lose his personal freedom. Lassiter, 452 U.S. at 27. Those factors include: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of a private interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The Legislature vests a district judge with discretion to appoint counsel to a civil litigant who makes an affidavit that he is too poor to employ counsel. Tex. Gov't Code Ann. § 24.016 (Vernon 2004). The Supreme Court has recognized that in some exceptional cases, considering the public and private interests at stake, the effective administration of justice is best served by appointing counsel to represent an indigent civil litigant. See Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). See also Knie v. Piskun, 23 S.W.3d 455, 461 (Tex.App.-Amarillo 2000, pet. denied).
Where incarceration is a possible result of a contempt proceeding, an indigent respondent is entitled to the appointment of counsel. See Tex. Fam. Code Ann. § 157.163(b) (Vernon 2002). See also Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997); Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (applying former § 14.32(f)). When the issue of indigency is raised, the trial court is obligated to inform the respondent of that right. Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.-Dallas 1988, no writ). Additionally, unless such advice is given, a party's failure to request counsel is not a waiver of his constitutional right to assistance of counsel. Id.
Furthermore, in a suit brought by a governmental entity to terminate parental rights of an indigent parent, that parent has a statutory right to appointed counsel. See Tex. Fam. Code. Ann. § 107.013(a)(1) (Vernon Supp. 2006). See also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Additionally, juveniles who may be found to be delinquent and subjected to loss of liberty also have the right to appointed counsel. See In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re D.A.S., 973 S.W.2d 296, 298 (Tex. 1998); Matter of R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.-El Paso 1997, no writ). The Legislature has mandated that indigent juveniles receive the assistance of appointed counsel on appeal. Tex. Fam. Code Ann. §§ 51.10(f)(2) and 56.01(d)(3) (Vernon 2002 & Supp. 2006).
An application for court-ordered mental health services also triggers the appointment of counsel for a proposed patient. Tex. Health & Safety Code Ann. § 574.003(a) (Vernon 2003). This Court, relying on Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), noted that in mental health proceedings, the State undertakes to act in parens patriae, thereby imposing on the State a duty to accord due process, which necessarily includes the duty to ensure that a person subjected to such proceedings is afforded the opportunity of legal counsel at every step therein, including on appeal. State for Best Interest & Protection of Ortiz, 640 S.W.2d 67 (Tex.App.-Amarilllo 1982, no writ).
Ultimately, the decision on whether due process requires the appointment of counsel for an indigent party to a proceeding involving a family violence protective order is a matter for the trial court to determine in its discretion on a case by case basis. That determination would, of course, be subject to appellate review. Therefore, we abate this appeal and remand the cause to the trial court to utilize whatever means it finds necessary to determine:
(1) whether Cox is indigent; and
(2) whether, based on the authorities cited herein, Cox should be afforded the assistance of appointed counsel in prosecuting this appeal.
The trial court shall enter an order either granting or denying Cox's request for appointment of counsel. If counsel is appointed to represent Cox, counsel's name, address, telephone number, and state bar number shall be provided to the Clerk of this Court. The trial court's order shall be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before Monday, September 17, 2007. Pending the filing of the supplemental clerk's record, or until further order of this Court, all appellate deadlines are suspended.
It is so ordered.
Per Curiam
1. Section 81.009 of the Texas Family Code permits an appeal from the rendition of a protective order.
2. Cox notes that his attorney of record appointed to handle allegations concerning the violation of the protective order is Joshua Woodburn.
DFPS concedes that judge had no authority to transfer venue in SAPCR suit - Amarillo Court of Appeals issues mandamus
In Re Lisa Gore and Glenn Alan Gore, Relator, No. 07-07-00290-CV (Tex.App.- Amarillo, Aug. 23, 2007)(Opinion by Justice Pirtle)(SAPCR venue mandmaus)(Before Chief Justice Quinn, Justices Hancock and Pirtle)
Appeal from of County
ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this original proceeding, Relators, Lisa Gore and Glenn Alan Gore, seek to have this Court issue a writ of mandamus commanding the Honorable Robert W. Kinkaid, Jr., presiding judge of the 64th District Court, to rescind the Order Transferring Suit Affecting the Parent-Child Relationship (SAPCR), entered by the trial court on June 12, 2007, in the underlying SAPCR action. The Texas Department of Family and Protective Services (hereinafter the Department) has candidly filed a response wherein it acknowledges that it has been unable to find any "authority or argument to controvert the allegations and arguments set forth in Relators' Petition for Writ of Mandamus." We conditionally grant Relators' petition.
Background
The underlying SAPCR action was originally filed by the Department in 1999. The original court of continuing jurisdiction was the 320th District Court in and for Potter County, Texas. In that action, the Department was named managing conservator of the minor child, Tykaier Gardner, and the Department subsequently placed the child in the foster care of Relators, Lisa and Glenn Gore. After the child had lived in their home for more than six years, on June 19, 2006, Relators filed a petition seeking termination of the parent-child relationship between the child and her parents. The petition was originally filed in the 320th District Court of Potter County; however, it was subsequently transferred to the 64th District Court of Swisher County by order dated November 3, 2006. At the time the case was transferred from Potter County to Swisher County, the child the subject of the proceeding had resided in Swisher County for more than six years and the Department and the attorney ad litem for the child agreed to the transfer. The Department later sought a discretionary transfer of the case back to the 320th District Court and on June 12, 2007, Respondent, the Honorable Robert W. Kinkaid, Jr., entered an order granting the Department's motion. Relators opposed the entry of that order and now seek to have this Court compel Respondent to rescind that order.
Standard of Review
A writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal, and the relators have the burden to present the appellate court with a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding); See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Transfer of a SAPCR action to a county where the child has resided for more than six months is a mandatory ministerial duty under § 155.201(b) of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding); In re Leder, __S.W.3d__, 2007 WL 1953877, at *2 (Tex.App.-Houston [1st Dist.] July 6, 2007) (orig. proceeding). Mandamus relief is available to compel the mandatory transfer of a SAPCR action. Proffer, 734 S.W.2d at 672.
Because it was undisputed that the child the subject of the underlying SAPCR action had resided in Swisher County more than six months, Swisher County was the only county of proper venue and the case should not have been transferred based upon a motion for discretionary transfer. Mandamus is the proper remedy to complain of an erroneous or improper transfer once the transferring court has lost its plenary power over the case. Proffer, 757 S.W.2d at 673. Based upon the above and foregoing, we find that Respondent abused his discretion by granting the Department's motion to transfer venue to Potter County. Accordingly, Relators' Petition for Writ of Mandamus is conditionally granted and Respondent is directed to rescind the June 12, 2007 order transferring venue to Potter County. Because we are confident that Respondent will enter an order effectively rescinding that order, the writ will issue only if he fails to do so.
Patrick A. Pirtle
Justice
Appeal from of County
ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In this original proceeding, Relators, Lisa Gore and Glenn Alan Gore, seek to have this Court issue a writ of mandamus commanding the Honorable Robert W. Kinkaid, Jr., presiding judge of the 64th District Court, to rescind the Order Transferring Suit Affecting the Parent-Child Relationship (SAPCR), entered by the trial court on June 12, 2007, in the underlying SAPCR action. The Texas Department of Family and Protective Services (hereinafter the Department) has candidly filed a response wherein it acknowledges that it has been unable to find any "authority or argument to controvert the allegations and arguments set forth in Relators' Petition for Writ of Mandamus." We conditionally grant Relators' petition.
Background
The underlying SAPCR action was originally filed by the Department in 1999. The original court of continuing jurisdiction was the 320th District Court in and for Potter County, Texas. In that action, the Department was named managing conservator of the minor child, Tykaier Gardner, and the Department subsequently placed the child in the foster care of Relators, Lisa and Glenn Gore. After the child had lived in their home for more than six years, on June 19, 2006, Relators filed a petition seeking termination of the parent-child relationship between the child and her parents. The petition was originally filed in the 320th District Court of Potter County; however, it was subsequently transferred to the 64th District Court of Swisher County by order dated November 3, 2006. At the time the case was transferred from Potter County to Swisher County, the child the subject of the proceeding had resided in Swisher County for more than six years and the Department and the attorney ad litem for the child agreed to the transfer. The Department later sought a discretionary transfer of the case back to the 320th District Court and on June 12, 2007, Respondent, the Honorable Robert W. Kinkaid, Jr., entered an order granting the Department's motion. Relators opposed the entry of that order and now seek to have this Court compel Respondent to rescind that order.
Standard of Review
A writ of mandamus will only issue to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy by appeal, and the relators have the burden to present the appellate court with a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding); See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Transfer of a SAPCR action to a county where the child has resided for more than six months is a mandatory ministerial duty under § 155.201(b) of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 672 (Tex. 1987) (orig. proceeding); In re Leder, __S.W.3d__, 2007 WL 1953877, at *2 (Tex.App.-Houston [1st Dist.] July 6, 2007) (orig. proceeding). Mandamus relief is available to compel the mandatory transfer of a SAPCR action. Proffer, 734 S.W.2d at 672.
Because it was undisputed that the child the subject of the underlying SAPCR action had resided in Swisher County more than six months, Swisher County was the only county of proper venue and the case should not have been transferred based upon a motion for discretionary transfer. Mandamus is the proper remedy to complain of an erroneous or improper transfer once the transferring court has lost its plenary power over the case. Proffer, 757 S.W.2d at 673. Based upon the above and foregoing, we find that Respondent abused his discretion by granting the Department's motion to transfer venue to Potter County. Accordingly, Relators' Petition for Writ of Mandamus is conditionally granted and Respondent is directed to rescind the June 12, 2007 order transferring venue to Potter County. Because we are confident that Respondent will enter an order effectively rescinding that order, the writ will issue only if he fails to do so.
Patrick A. Pirtle
Justice
Pro Se: He who represents himself has a lously lawyer for counsel and a fool for a client
In the Interest of Y. L. C., a Minor Child, No. 06-07-00036-CV (Tex.App.- Texarkana, Aug. 24, 2007)(Opinion by Chief Justice Morriss)(Before Chief Justice Morriss, Justices Carter and Moseley)
Appeal from 354th District Court of Hunt County, Trial Court No. 62078
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Before January 29, 2007, Y.L.C.'s joint managing conservators were Debbie Truss (Y.L.C.'s maternal grandmother) and Truss' husband, William Godfrey; joint possessory conservators were Y.L.C.'s parents, Linda Ivie and Derick Clark. On that date, in an order agreed to by Ivie and Truss--but not Clark--Ivie was appointed Y.L.C.'s sole managing conservator.
The order found that Clark had made a general appearance in the suit but had defaulted by not appearing at trial. (1) The order also recited that a record of testimony was reported by a court reporter. While we have a clerk's record, no reporter's record has been filed with this Court. Clark, pro se, appeals.
We affirm the trial court's order because we hold that (1) refusing to appoint counsel for Clark was not an abuse of discretion, (2) overruling Clark's motion for continuance was not an abuse of discretion, (3) without a reporter's record, we must assume the evidence supports the trial court's order, (4) Clark's generic assertion that the trial court failed to "properly file" his motions and letters does not adequately present any issue for appellate review, and (5) Clark's generic assertion that the trial court erred in not enforcing prior orders does not adequately present any issue for appellate review.
(1) Refusing to Appoint Counsel for Clark Was Not an Abuse of Discretion
On appeal, Clark asserts that, because he was indigent, the trial court was obligated to appoint counsel to represent him in this matter. (2) We disagree.
We review the trial court's failure to appoint trial counsel in a civil case for an abuse of discretion under Section 24.016 of the Texas Government Code. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003).
While statutory authority allows a district judge to appoint counsel for indigent litigants, generally, (3) a civil litigant has no general constitutional right to appointed counsel. (4) See Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.).
In some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).
However, as the court applied the review standard in Gibson, the existence of extraordinary circumstances required to authorize such appointment is a fact-based question that is best answered in connection with each specific case. (5) On this record, we cannot conclude that this, a child custody determination, is so extraordinary that it requires the appointment of counsel or that the trial court abused its discretion by failing to make such an appointment.
We overrule this contention of error.
(2) Overruling Clark's Motion for Continuance Was Not an Abuse of Discretion
Clark also contends the trial court erred by not granting his motion for continuance. He does not specify the document to which he refers, though there are a few candidates. In a letter to the trial court filed September 19, 2005, Clark refers to a letter to the attorney general requesting a continuance. There is a motion to continue the case in order to appoint a guardian ad litem for Y.L.C. A fax was transmitted and filed January 29, 2007, in which Clark stated he was unable to appear in court on that day.
None of those documents could be clearly considered as a motion to continue the case. Thus, the trial court could not err by failing to do so. Even if there were such a motion, we review the denial of a motion for continuance for an abuse of discretion. Apodaca v. Rios, 163 S.W.3d 297, 301 (Tex. App.--El Paso 2005, no pet.). A trial court abuses its discretion when it makes a decision without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See Tex. R. Civ. P. 251; Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.--Houston [1st Dist.] 1994, no writ). None of the documents that have any possible relationship to a continuance are either verified or supported by affidavit--thus, the trial court did not abuse its discretion by failing to continue the case. See Serrano v. Ryan's Crossing Apartments, No. 08-05-00325-CV, 2007 WL 1575527 (Tex. App.--El Paso May 31, 2007, no pet.); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.--Fort Worth 1999, pet. denied).
We overrule this contention of error.
(3) Without a Reporter's Record, We Must Assume the Evidence Supports the Trial Court's Order
Clark also complains generally and briefly about the evidence. He states that the trial court's finding that he had a pattern of neglecting Y.L.C. was not supported by credible evidence and that other evidence shows lack of fitness on the part of Ivie. Clark's short ensuing argument centers entirely on Ivie's asserted lack of fitness.
Clark, as appellant, has the burden to provide us a record sufficient to show the asserted error. See Johnson v. Walker, 824 S.W.2d 184, 186 (Tex. App.--Fort Worth 1991, writ denied).
"[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order." Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.--Dallas 2006, pet. denied). When we have no reporter's record and no findings of fact, we assume that the evidence supports the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); see Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). As Clark did not arrange to provide a reporter's record, we must assume that the evidence is sufficient to support the judgment.
We overrule this contention of error.
(4) Clark's Generic Assertion that the Trial Court Failed to "Properly File" His Motions and
Letters Does Not Adequately Present Any Issue for Appellate Review
Clark also contends that the court erred by not accepting his "motions" and "letters" to be properly "filed" so as to be heard and ruled on. There are a substantial number of letters and apparent motions from Clark that are contained within the official record of the case. To be in the clerk's record on appeal, the documents must have been filed. Clark points to no specific motion or ruling that was not filed in the trial court. Thus, he has not shown error.
It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991). When the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we ordinarily are not called on to perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We will not do the job of the advocate. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Jackson, 732 S.W.2d at 412.
We overrule this contention of error.
(5) Clark's Generic Assertion that the Trial Court Erred in Not Enforcing Prior Orders Does Not Adequately Present Any Issue for Appellate Review
Clark also contends that the court erred by not enforcing previous rulings in which Ivie was to have completed a parenting program that was required by the court May 17, 2000. The court's docket sheet states that temporary orders were entered on that date, but Clark has directed us to no provision of any relevant order in the record, nor has he shown us any effort to enforce any such ruling, or that, if such a ruling existed, Ivie did not comply with its terms. Clark has not shown error.
We overrule this contention of error.
We affirm the trial court's order.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 9, 2007
Date Decided: August 24, 2007
1. The motion on which this order rests was filed March 9, 2005. Clark promptly responded and repeatedly contacted the trial court in writing, but did not appear before the court January 29, 2007, the date of the hearing on the motion. The record reflects that Clark was properly notified and that he filed an additional document with the trial court on that date. Notice of the hearing was sent October 19, 2006, and was received by Clark October 23.
2. Clark, in his pro-se brief, has not provided extensive citation either to the record or to controlling law--but did set out his arguments in an understandable fashion. Appellee's counsel, in a two-page brief, provided no citation to any authority whatsoever, and responded only to one of five issues set out by Clark.
3. "A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause." Tex. Gov't Code Ann. § 24.016 (Vernon 2004); see Gibson, 102 S.W.3d at 712; Ex parte Munoz, 139 S.W.3d 349, 352 (Tex. App.--San Antonio 2004, no pet.).
4. We recognize exceptions to that general rule in cases involving the termination of parental rights, see Tex. Fam. Code Ann. § 107.013 (Vernon Supp. 2006); juvenile delinquency, Tex. Fam. Code Ann. § 51.10 (Vernon Supp. 2006); and court-ordered mental health services, Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003). None of those situations are implicated in this case.
5. The exceptional-circumstances concept is generally mentioned, but the Texas Supreme Court declined to expressly hold that exceptional circumstances was the proper boundary for the court's discretion. See Gibson, 102 S.W.3d at 713. We have found no case--and Clark suggests none--finding an exceptional circumstance which would trigger a duty to appoint counsel in a civil case, other than the recognized constitution-based cases: termination of parental rights, juvenile delinquency, and court-ordered mental health services.
Appeal from 354th District Court of Hunt County, Trial Court No. 62078
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Before January 29, 2007, Y.L.C.'s joint managing conservators were Debbie Truss (Y.L.C.'s maternal grandmother) and Truss' husband, William Godfrey; joint possessory conservators were Y.L.C.'s parents, Linda Ivie and Derick Clark. On that date, in an order agreed to by Ivie and Truss--but not Clark--Ivie was appointed Y.L.C.'s sole managing conservator.
The order found that Clark had made a general appearance in the suit but had defaulted by not appearing at trial. (1) The order also recited that a record of testimony was reported by a court reporter. While we have a clerk's record, no reporter's record has been filed with this Court. Clark, pro se, appeals.
We affirm the trial court's order because we hold that (1) refusing to appoint counsel for Clark was not an abuse of discretion, (2) overruling Clark's motion for continuance was not an abuse of discretion, (3) without a reporter's record, we must assume the evidence supports the trial court's order, (4) Clark's generic assertion that the trial court failed to "properly file" his motions and letters does not adequately present any issue for appellate review, and (5) Clark's generic assertion that the trial court erred in not enforcing prior orders does not adequately present any issue for appellate review.
(1) Refusing to Appoint Counsel for Clark Was Not an Abuse of Discretion
On appeal, Clark asserts that, because he was indigent, the trial court was obligated to appoint counsel to represent him in this matter. (2) We disagree.
We review the trial court's failure to appoint trial counsel in a civil case for an abuse of discretion under Section 24.016 of the Texas Government Code. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003).
While statutory authority allows a district judge to appoint counsel for indigent litigants, generally, (3) a civil litigant has no general constitutional right to appointed counsel. (4) See Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App.--Corpus Christi 1965, writ ref'd n.r.e.).
In some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).
However, as the court applied the review standard in Gibson, the existence of extraordinary circumstances required to authorize such appointment is a fact-based question that is best answered in connection with each specific case. (5) On this record, we cannot conclude that this, a child custody determination, is so extraordinary that it requires the appointment of counsel or that the trial court abused its discretion by failing to make such an appointment.
We overrule this contention of error.
(2) Overruling Clark's Motion for Continuance Was Not an Abuse of Discretion
Clark also contends the trial court erred by not granting his motion for continuance. He does not specify the document to which he refers, though there are a few candidates. In a letter to the trial court filed September 19, 2005, Clark refers to a letter to the attorney general requesting a continuance. There is a motion to continue the case in order to appoint a guardian ad litem for Y.L.C. A fax was transmitted and filed January 29, 2007, in which Clark stated he was unable to appear in court on that day.
None of those documents could be clearly considered as a motion to continue the case. Thus, the trial court could not err by failing to do so. Even if there were such a motion, we review the denial of a motion for continuance for an abuse of discretion. Apodaca v. Rios, 163 S.W.3d 297, 301 (Tex. App.--El Paso 2005, no pet.). A trial court abuses its discretion when it makes a decision without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See Tex. R. Civ. P. 251; Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.--Houston [1st Dist.] 1994, no writ). None of the documents that have any possible relationship to a continuance are either verified or supported by affidavit--thus, the trial court did not abuse its discretion by failing to continue the case. See Serrano v. Ryan's Crossing Apartments, No. 08-05-00325-CV, 2007 WL 1575527 (Tex. App.--El Paso May 31, 2007, no pet.); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.--Fort Worth 1999, pet. denied).
We overrule this contention of error.
(3) Without a Reporter's Record, We Must Assume the Evidence Supports the Trial Court's Order
Clark also complains generally and briefly about the evidence. He states that the trial court's finding that he had a pattern of neglecting Y.L.C. was not supported by credible evidence and that other evidence shows lack of fitness on the part of Ivie. Clark's short ensuing argument centers entirely on Ivie's asserted lack of fitness.
Clark, as appellant, has the burden to provide us a record sufficient to show the asserted error. See Johnson v. Walker, 824 S.W.2d 184, 186 (Tex. App.--Fort Worth 1991, writ denied).
"[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order." Willms v. Americas Tire Co., 190 S.W.3d 796, 803 (Tex. App.--Dallas 2006, pet. denied). When we have no reporter's record and no findings of fact, we assume that the evidence supports the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); see Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). As Clark did not arrange to provide a reporter's record, we must assume that the evidence is sufficient to support the judgment.
We overrule this contention of error.
(4) Clark's Generic Assertion that the Trial Court Failed to "Properly File" His Motions and
Letters Does Not Adequately Present Any Issue for Appellate Review
Clark also contends that the court erred by not accepting his "motions" and "letters" to be properly "filed" so as to be heard and ruled on. There are a substantial number of letters and apparent motions from Clark that are contained within the official record of the case. To be in the clerk's record on appeal, the documents must have been filed. Clark points to no specific motion or ruling that was not filed in the trial court. Thus, he has not shown error.
It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991). When the appellant does not provide us with argument that is sufficient to make an appellate complaint viable, we ordinarily are not called on to perform an independent review of the record and applicable law in order to determine whether the error complained of occurred. Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). We will not do the job of the advocate. Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied); Jackson, 732 S.W.2d at 412.
We overrule this contention of error.
(5) Clark's Generic Assertion that the Trial Court Erred in Not Enforcing Prior Orders Does Not Adequately Present Any Issue for Appellate Review
Clark also contends that the court erred by not enforcing previous rulings in which Ivie was to have completed a parenting program that was required by the court May 17, 2000. The court's docket sheet states that temporary orders were entered on that date, but Clark has directed us to no provision of any relevant order in the record, nor has he shown us any effort to enforce any such ruling, or that, if such a ruling existed, Ivie did not comply with its terms. Clark has not shown error.
We overrule this contention of error.
We affirm the trial court's order.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 9, 2007
Date Decided: August 24, 2007
1. The motion on which this order rests was filed March 9, 2005. Clark promptly responded and repeatedly contacted the trial court in writing, but did not appear before the court January 29, 2007, the date of the hearing on the motion. The record reflects that Clark was properly notified and that he filed an additional document with the trial court on that date. Notice of the hearing was sent October 19, 2006, and was received by Clark October 23.
2. Clark, in his pro-se brief, has not provided extensive citation either to the record or to controlling law--but did set out his arguments in an understandable fashion. Appellee's counsel, in a two-page brief, provided no citation to any authority whatsoever, and responded only to one of five issues set out by Clark.
3. "A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause." Tex. Gov't Code Ann. § 24.016 (Vernon 2004); see Gibson, 102 S.W.3d at 712; Ex parte Munoz, 139 S.W.3d 349, 352 (Tex. App.--San Antonio 2004, no pet.).
4. We recognize exceptions to that general rule in cases involving the termination of parental rights, see Tex. Fam. Code Ann. § 107.013 (Vernon Supp. 2006); juvenile delinquency, Tex. Fam. Code Ann. § 51.10 (Vernon Supp. 2006); and court-ordered mental health services, Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003). None of those situations are implicated in this case.
5. The exceptional-circumstances concept is generally mentioned, but the Texas Supreme Court declined to expressly hold that exceptional circumstances was the proper boundary for the court's discretion. See Gibson, 102 S.W.3d at 713. We have found no case--and Clark suggests none--finding an exceptional circumstance which would trigger a duty to appoint counsel in a civil case, other than the recognized constitution-based cases: termination of parental rights, juvenile delinquency, and court-ordered mental health services.
Saturday, August 25, 2007
SAPCR: Fox v. Fox (Tex.App-.Austin 2006) Child ordered to remain in same school, but restriction beyond end of school year reversed
Appeals court panel also holds that trial court's failure to file findings of facts was not harmful, and that trial court properly modified tax provisions of decress, which were challenged as conflicting with previously signed Rule 11 agreement.
Tina Marie Fox v. Troy Ben Fox, No. 03-04-00749-CV (Tex.App.- Austin, Jan. 13, 2006)(mem. op.)(Opinion by Justice Smith)(residency restriction reversed in part)(Before Justices Patterson, Pemberton and Smith)
Appeal from 33rd District Court of Burnet County
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 21,584, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE BEA ANN SMITH
Appellant Tina Marie Fox appeals two issues pertaining to the final decree of divorce from her marriage to appellee Troy Fox. (1) After issuing the divorce decree, (2) the district court ordered that Tina and Troy's daughter M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year, and that her primary residence be restricted to Burnet County.
The district court also ordered that the portions of the initial decree addressing the couple's tax liabilities for prior years and child support obligations be corrected and modified. After the district court issued these orders, Tina requested findings of fact and conclusions of law. The district court denied her request, finding that it was not timely filed.
In her first and second issues on appeal, Tina contends that the district court erred by (1) failing to issue findings of fact and conclusions of law and (2) finding her request for findings of fact and conclusions of law untimely. In her third, fourth, and fifth issues, Tina insists that the district court abused its discretion by ordering that: (3) M.F.'s residence be restricted to Burnet County; (4) M.F. attend St. Peter's Lutheran School for the 2004-05 school year; and (5) certain portions of the initial decree be corrected and modified.
Because we hold that Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion by issuing the post-initial decree orders, we affirm in part. However, we also reverse and remand in part because we hold that no substantive or probative evidence exists that would support the court's restriction of the child's residence to Burnet County beyond the school year 2004-05.
BACKGROUND
Tina and Troy were married in August 1995. Tina worked in automotive sales and also ran a nail salon. Troy owned and operated pawn shops in Marble Falls, Taylor, and Belton. Tina had a ten-year-old son, Anthony, from a prior relationship; Troy had no children. Tina, Troy and Anthony lived together in Burnet County throughout the marriage. Tina has no family in Burnet County. Her two sisters live in Belton and Killeen; her mother lives in West Virginia. Troy grew up in Burnet County; his parents, two siblings, and several nieces and nephews, still reside there. After M.F. was born in 1998, the couple agreed that Tina would stop working to stay home with the children.
Troy filed for divorce in April 2002. In June 2004, the district court issued its "final order" concerning conservatorship of M.F. Tina and Troy were appointed joint managing conservators, with Tina having the exclusive right to establish M.F.'s primary residence. The court stated that a possible geographic restriction would be addressed at a later date. Trial on all unresolved issues was set for July.
On the day before trial, Tina and Troy entered into a Rule 11 agreement that addressed community property issues, as well as child support. The agreement specifically stated that any issues pertaining to a geographical restriction or choice of schools for M.F. in 2004-05 would either be addressed in a separate agreement or be decided by the court. At the hearing, Tina insisted that it would be in M.F.'s best interest to allow her to move to nearby Lakeway (3) and attend public school there. Troy wanted to restrict her residence to Burnet County. When the couple could not agree, a hearing was held on July 22, 2004. At the close of the hearing the district judge announced that it was in M.F.'s best interest to remain in Burnet County and return to her same school for the first grade in Fall 2004.
A written order imposing this geographic restriction was filed on August 28.
The district court signed the initial decree of divorce on July 26, 2004. It addressed the couple's federal income tax liability for prior years and the year of divorce. The initial decree stated, "In the event that there is a refund for prior years, the parties shall split the refund." This decree also included this statement addressing income tax liability in the year of divorce: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, Tina Fox is ordered to sign any documents necessary to implement this agreement."
Although the Rule 11 agreement indicated that Troy would pay $1,200 a month in child support, the initial decree failed to impose this child support obligation.
On August 17, Troy filed a motion seeking to reform, clarify, and correct certain property issues in the initial decree. In the alternative, Troy requested a new trial. Troy insisted that the provision entitling him to any prepaid income taxes in excess of the parties' tax liability was incorrectly placed in the section addressing taxes for the year of divorce, rather than taxes for prior years, as the parties had agreed. Likewise, he argued that the clause purporting to divide any tax refund from prior years was contrary to their agreement and was erroneously inserted in the decree by Tina's attorney.
Troy argued that these mistakes rendered the decree in conflict with the parties' Rule 11 agreement, which was incorporated into the initial decree.
After a hearing on October 7, the district court modified the income tax provisions as Troy requested and added the child support obligations that had inadvertently been omitted from the initial decree. On October 13, Tina filed a request for findings of fact and conclusions of law concerning the geographic restriction and the correction and modification of the income tax provisions. On October 29, the district court denied Tina's request, finding it untimely. This appeal followed.
DISCUSSION
Findings of fact and conclusions of law
In her first two issues, Tina suggests that the district court erred by finding untimely her request for findings of fact and conclusions of law. Rule 296 provides a party with the procedural right to request from the trial court written findings of fact and conclusions of law. See Tex. R. Civ. P. 296. The trial court's duty to make such findings and conclusions is mandatory when the request is timely. See Tex. R. Civ. P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.). If a trial court does not file findings, it is presumed harmful unless the record affirmatively shows that the appellant suffered no harm. See, e.g., Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc., 763 S.W.2d at 772; Glass, 137 S.W.3d at 118.
Generally, in complicated cases with disputed facts, or with two or more grounds for recovery or defense, the inference of harm cannot be defeated. Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2003, no pet.).
If, however, the lack of findings is harmless, we can affirm. See Tex. R. App. P. 44.1(a). Error is harmful if it prevents a party from properly presenting a case to the appellate court. See Tex. R. App. P. 44.1(a)(2); Tenery, 932 S.W.2d at 30; Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W.3d 728, 744 n.10 (Tex. App.--Austin 2004, no pet.). A trial court's failure to issue findings of fact and conclusions of law will be considered harmful if, under the circumstances of the particular case, an appellant would be required to guess the reason or reasons for the trial court's decision. Brazoria County, 128 S.W.3d at 744 n.10; Elliott, 118 S.W.3d at 54.
A judgment that actually disposes of all parties and all claims is final. In re Burlington Coat Factory Warehouse, 167 S.W.3d 827, 830 (Tex. 2005). In this case, the district court retained plenary jurisdiction to modify its initial decree, and there was not a final judgment until the district court issued its October 7, 2004 order modifying the initial decree. At that time, the district court resolved the parties' dispute regarding the income tax provisions and imposed the previously agreed upon child support obligation that had not been included in the initial decree. Therefore, the district court erred by finding Tina's October 13 request for findings of fact and conclusions of law untimely. See Tex. R. Civ. P. 296 (providing that requests for findings of fact and conclusions of law be filed within twenty days after judgment is signed).
Because Tina's request was timely, we must determine whether she was harmed by the lack of findings and conclusions. Troy argues that Tina does not have to guess the reasons behind the district court's orders pertaining to either its imposition of the geographic limitation or its decision to correct and modify the initial decree because the district judge, Murray Jordan, announced his rulings and stated his reasons at the hearings. We agree.
At the hearing on the residency restriction, Judge Jordan clearly stated that his main concern was to secure a stable environment for M.F. He acknowledged that for two years the divorce proceedings had been extremely stressful for a child her age. He explained that M.F. had attended St. Peter's Lutheran School in Burnet County for the prior two school years and had made friends there. He insisted that, if M.F. were older and better equipped to deal with the stress of a move and a new school, his decision might have been different. He then stated that restricting her residence to Burnet County would make it easier for M.F. to continue in this same school. Therefore, he ordered M.F. to attend St. Peter's for the first grade (2004-05) and reside in Burnet County. He added, "It may be that a move to outside this area after a year would be appropriate."
At the hearing on Troy's motion to reform, clarify, and correct the judgment, Judge Jordan stated that there clearly were two mistakes made in drafting the decree, the income tax provisions and the omission of any child support obligation, both at odds with the parties' agreement. He suggested the mistakes were probably due to the fact that there was a hurried push to enter the initial decree the day after the Rule 11 agreement was signed. Because he found the provisions of the initial decree and the incorporated Rule 11 agreement ambiguous, he heard evidence pertaining to the parties' intentions. Subsequently, he asserted that the decree entered on July 26 did not accurately represent the parties' intentions.
The record clearly establishes the reasons underlying Judge Jordan's decisions in this case. Therefore, Tina was not harmed by the lack of written findings and conclusions of law. (4) Consequently, we overrule Tina's first two issues regarding the district court's failure to file written findings of fact and conclusions of law.
Residence restriction
In her third and fourth issues, Tina suggests that the district court abused its discretion when it ordered that M.F.'s primary residence be established solely within Burnet County and that M.F. attend St. Peter's Lutheran School for the 2004-05 school year. Tina maintains that the orders are not in the best interest of M.F., who should be allowed to move to Lakeway and enroll in its exemplary public schools. Tina claims that the move would improve both her and M.F.'s quality of life without diminishing Troy's relationship with M.F. In addition, Tina asserts that nearby Lakeway is closer to Troy and his family than other cities actually located within Burnet County.
The legislature has explicitly stated, "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002 (West 2002); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). The trial court is given wide latitude in determining the best interests of the child and will be reversed only for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.--Austin 2003, no pet.). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). As long as some evidence of a substantive and probative character exists to support the order, we will not substitute our judgment for that of the trial court. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.).
Family code section 153.001 states that the public policy of this state is to provide a safe, stable, and nonviolent environment for the child. Tex. Fam. Code Ann. § 153.001(a)(2) (West 2002). The code is silent as to the specific factors that the trial court should consider when determining whether a residency restriction is in the best interest of the child. In Lenz, the supreme court provided some guidance in applying our state's best-interest standard when divorced parents seek to relocate. See 79 S.W.3d at 13-16. The court highlighted various relevant factors to be considered: the reasons for and against the move; the effect on extended family relationships; the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the non-custodial parent and child; the nature of the child's existing contact with both parents, and the child's age, community ties, and health and educational needs. See id. at 15-17. However, the supreme court clearly stated that suits affecting the parent-child relationship are intensely fact-driven and consequently involve careful balancing of these numerous factors. Id. at 18-19.
As we have noted, the district court's primary concern was to provide a secure and stable environment for M.F. The court heard testimony that M.F. had attended St. Peter's Lutheran School for two years and was excited about returning for the first grade. The record also indicates that many of M.F.'s extracurricular activities take place in Burnet County. In addition, there is evidence establishing that most of M.F.'s paternal extended family lives in Burnet County. Judge Jordan recognized that it was difficult for Tina to get along with Troy and his family and that it may not be in her best interest to remain in Burnet County. However, the record indicated that M.F. had been insulated from much of the familial acrimony.
Judge Jordan concluded that it would promote stability for M.F. to attend the first grade at St. Peter's:
The child has attended St. Peter's Lutheran School for two years and made friends, and that the stability for the child will be for her to stay in St. Peter's Lutheran School at least for another year.
The problem with establishing a home for the child in Lakeway would be if the child continues in St. Peter's School, she would have to be transported 35 miles to school each day. If she is closer to St. Peter's School, then it would be better for the child to be able to go to school in St. Peter's Lutheran School.
So the Court feels that the best interest of the child is that she attend St. Peter's Lutheran School one more year, but that the home of the child be established in Burnet County. . . . And certainly as the circumstances change, the-we can change the order. But at this time, I'll rule that the residence of the child be established in Burnet County, and that she be placed in St. Peter's Lutheran School for the first grade.
The record before us includes evidence supporting Judge Jordan's conclusion that the stability of the child would be served by continuing to attend St. Peter's Lutheran School for the school year 2004-05, that changing the child's residence to Lakeway would impede school attendance at St. Peter's by adding 35 miles of transportation twice a day, and that restricting the child's residence to Burnet County would facilitate the goal of keeping her in the same school for another year. Therefore, we hold that the district court did not abuse its discretion by restricting M.F.'s primary residence to Burnet County to enable her to attend the first grade at St. Peter's.
However, we find no substantive or probative evidence that would support the court's restriction of the child's residence to Burnet County and its denial of the mother's request to move to Lakeway after that school year ended. (5) We hold that the court abused its discretion in continuing the restriction and denying the mother's request to allow the child to reside in the Lakeway community after the end of the 2004-05 school year. We sustain in part Tina's third and fourth issues.
Modification and correction of the initial decree
In her final issue, Tina argues that the district court abused its discretion by ordering that the initial decree be modified and corrected. Tina claims that the district court (1) erroneously admitted evidence of the couple's settlement negotiations; (2) improperly allowed Troy to renegotiate the corrected and modified initial decree; and (3) failed to divide income tax refunds from prior years in a just and right manner.
The district court signed and filed the initial decree on July 26, 2004. On August 17, Troy filed a motion seeking to reform, clarify, and correct certain portions of the initial decree. He argued that the portions of the initial decree pertaining to the couple's income tax liabilities were ambiguous because the Rule 11 agreement was not properly incorporated into the initial decree.
On September 24, the district court held a hearing on Troy's motion. At the hearing, the district court heard testimony from Troy's attorney, Robert Gradel, and Gradel's secretary, Jennifer Bunting, that during the settlement negotiations Troy agreed to pay a portion of Tina's credit card debt in exchange for receiving any tax prepayments or overpayments. Gradel also offered into evidence copies of faxes that he sent to Tina's attorney, Glynn Turquand, pointing out this drafting error in the initial decree. In one fax, Gradel made three suggestions for language that he felt should be included in the decree. Gradel stated that two of the suggestions were adopted, but his request that the decree section entitled "Liability for Federal Income Taxes for Prior Year" include a sentence awarding Troy any refunds was not incorporated as requested. (6)
Instead, substantially similar language was placed in the section entitled Treatment/Allocation of Community Income for Year of Divorce. Finally, Gradel testified that the sentence, "In the event that there is a refund for prior years, the parties shall split the refund," was contrary to the parties' agreement as reflected in the Rule 11 agreement. Turquand objected to the admission of Gradel's and Bunting's testimony, as well as the faxes. He claimed Texas Rule of Evidence 408 barred the admission of evidence of conduct or statements made during settlement negotiations. See Tex. R. Evid. 408. Turquand also argued that both the Rule 11 agreement and the initial decree were clear and unambiguous.
The district court found the initial decree and the Rule 11 agreement ambiguous and on October 7 it ordered that three sections of the initial decree be corrected or modified. First, the district court deleted the sentence splitting tax refunds for prior years between the parties. Second, it transferred the sentence granting Troy all prepayments of tax to the section concerning tax liability for prior years. Finally, the district court ordered that the initial decree be modified to include the previously agreed upon child support provision. (7)
Ambiguity
Whether a divorce decree or an agreement is ambiguous is a question of law subject to de novo review. See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex. App.--San Antonio 2004, no pet.). We interpret a divorce decree like any other judgment, reading the decree as a whole and "effectuating the order in light of the literal language used" if that language is unambiguous. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). A judgment is ambiguous if it is susceptible to more than one reasonable interpretation. Shanks, 110 S.W.3d at 447. If the decree is ambiguous, a court should review the record along with the decree to aid in interpreting the judgment. Id.
After extensive negotiation, Tina and Troy entered into a Rule 11 agreement outlining how the marital property would be divided. The substance of the agreement was to be included in the initial decree. Specifically, the initial decree states, "The Court finds that the parties have entered into an Agreement Incident to Divorce, in a document separate from this Final Decree of Divorce. The Court approves the agreement and incorporates it by reference as part of this decree as if it were recited herein verbatim and orders the parties to do all things necessary to effectuate the agreement." The only reference to the couple's income tax liabilities in the Rule 11 agreement is found in paragraph 8 which states, "For 2004, parties [Tina and Troy] will partition income, taxes will be as if divorced on January 1, 2004. Any tax prepayment or deficit will belong to Troy for pawn shops, his income."
In her response to Troy's motion, Tina contends that paragraph 8 addresses only the couple's tax liability for 2004. However, it is unclear whether the reference to 2004 in the first sentence also modifies the second sentence governing the treatment of tax prepayments and deficits. The second sentence could be read to mean any tax prepayment or deficit in 2004, or it could be read to mean any tax prepayment or deficit from any year. This distinction is critical because Troy insists that the word "prepayment" includes overpayments from prior years. Troy maintains that he should be allowed to apply all overpaid income taxes in 2003 to offset his 2004 tax liability. Tina would confine the second sentence in paragraph 8 to the year 2004 and rely on the unexplained insertion dividing tax refunds between the parties to claim one-half of the tax refund from 2003.
We conclude that the second sentence of paragraph 8 is ambiguous because it is susceptible to more than one reasonable interpretation. Therefore, if the parties intended to award any income tax prepayments or deficits to Troy, this is in direct conflict with the provision in the initial decree that any tax refund from a prior year be divided between the parties. Because the decree specifically incorporated the Rule 11 agreement, we conclude that the provisions of the decree that address federal income tax liabilities and refunds are ambiguous. See Shanks, 110 S.W.3d at 447. Therefore, the district court did not abuse its discretion by admitting evidence for the purpose of ascertaining the parties' intentions. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 413 (Tex. App.--Austin 2005, pet. filed).
Modification
A trial court retains plenary power to vacate, modify, correct, or reform its judgment at any time until the judgment becomes final thirty days after it is signed. See Tex. R. Civ. P. 306a (time periods run from date judgment is signed), 329b (motions for new trial and motions to modify, correct, or reform judgment extend duration of trial court's plenary power); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); In re Garza, 153 S.W.3d 97, 102 (Tex. App.--San Antonio 2004, no pet.). Within this time period, the trial court's power to modify its judgment has been described as "practically unlimited" or "virtually absolute." Rogers v. Clinton, 794 S.W.2d 9, 12 (Tex. 1990) (Cook, J., dissenting); Cook v. Cook, 888 S.W.2d 130, 131 (Tex. App.--Corpus Christi 1994, no writ).
However, once a divorce decree becomes final it is beyond the power of the trial court to issue an order that modifies the division of property. Tex. Fam. Code Ann. § 9.007(b) (West 1998). Property adjudications in a divorce decree become final the same as other judgments relating to title and possession of property. Harleaux v. Harleaux, 154 S.W.3d 925, 928 (Tex. App.--Dallas 2005, no pet.). Here, the district court's plenary power had not expired at the time it signed the October 7 order modifying the initial decree. See Tex. R. Civ. P. 329b(a) (motion to modify shall be filed within thirty days after judgment is signed), 329b(c) (if motion to modify is not determined within seventy-five days after judgment was signed, it shall be considered overruled). Therefore, the district court was authorized to modify the initial decree in accordance with the evidence of the parties' agreement. See Cook, 888 S.W.2d at 131.
The record includes testimony and evidence supporting the district court's modification of the initial decree. The modification is also supported by other non-disputed provisions of the initial decree. First, the parties agree that Troy is liable for any income tax deficit in all prior years. If Troy is liable for any prior income tax liability, it follows that he also be entitled to any tax refund or overpayment. Second, both the initial decree and the Rule 11 agreement explicitly state that community income generated in 2004, the year of divorce, shall be partitioned as if the couple were divorced on January 1, 2004. Under the partition agreement, Tina and Troy would file separate income tax returns for 2004 reflecting "all income earned by gains and losses generated by, and deductible expenses referable to assets awarded" to either Tina or Troy under the initial decree. Thus, the provision in paragraph 8 of the Rule 11 agreement that, "Any tax prepayment or deficit will belong to Troy for pawn shops, his income," would be redundant if it only applied to the year 2004.
Accordingly, we hold that the district court's modification of the income tax provisions in the decree of divorce did not constitute an abuse of discretion.
CONCLUSION
We hold that (1) Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law; (2) the district court did not abuse its discretion by ordering that M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year and that she reside in Burnet County in order to facilitate her attendance at St. Peter's; and (3) the district court did not abuse its discretion by modifying and correcting the income tax provisions of the initial decree. However, we hold that the district court abused its discretion in extending the geographic restriction on the child's residence beyond the 2004-05 school year. We reverse and remand that portion of the divorce decree for further proceedings consistent with this opinion.
__________________________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Patterson and Pemberton
Affirmed in Part; Reversed and Remanded in Part
Filed: January 13, 2006
1. For ease of reference, we will refer to the parties by their first names.
2. The divorce decree was issued in July 2004 and was entitled "Final Decree of Divorce on Property Issues." We will refer to the decree as the "initial decree." Earlier the district court had issued an order concerning conservatorship and support of the child. In that order, the district court specifically stated that any geographic restriction on the residence of the child would be addressed at a later time. The initial decree explicitly incorporated the order concerning conservatorship of the child.
3. Lakeway, Texas, is a small community approximately thirty-five miles from the Marble Falls area, which is where Tina and M.F. lived at the time of the divorce.
4. We emphasize that oral comments from the bench are not substitutes for written findings of fact and conclusions of law. See In re Jane Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on Judge Jordan's oral pronouncements solely for the purpose of conducting our harm analysis.
5. The record reflects that St. Peter's Lutheran School enrolls students from pre-kindergarten through second grade. M.F. would not be able to attend St. Peter's beyond the end of the school year 2005-06. The record does not reflect if M.F. is presently enrolled in the second grade at St. Peter's.
6. The requested insertion read: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, and Tina Fox is ordered to sign any documents necessary to implement this agreement."
7. Neither party raises a complaint about the modification adding the child support obligation to the decree of divorce.
Tina Marie Fox v. Troy Ben Fox, No. 03-04-00749-CV (Tex.App.- Austin, Jan. 13, 2006)(mem. op.)(Opinion by Justice Smith)(residency restriction reversed in part)(Before Justices Patterson, Pemberton and Smith)
Appeal from 33rd District Court of Burnet County
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 21,584, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE BEA ANN SMITH
Appellant Tina Marie Fox appeals two issues pertaining to the final decree of divorce from her marriage to appellee Troy Fox. (1) After issuing the divorce decree, (2) the district court ordered that Tina and Troy's daughter M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year, and that her primary residence be restricted to Burnet County.
The district court also ordered that the portions of the initial decree addressing the couple's tax liabilities for prior years and child support obligations be corrected and modified. After the district court issued these orders, Tina requested findings of fact and conclusions of law. The district court denied her request, finding that it was not timely filed.
In her first and second issues on appeal, Tina contends that the district court erred by (1) failing to issue findings of fact and conclusions of law and (2) finding her request for findings of fact and conclusions of law untimely. In her third, fourth, and fifth issues, Tina insists that the district court abused its discretion by ordering that: (3) M.F.'s residence be restricted to Burnet County; (4) M.F. attend St. Peter's Lutheran School for the 2004-05 school year; and (5) certain portions of the initial decree be corrected and modified.
Because we hold that Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law and that the district court did not abuse its discretion by issuing the post-initial decree orders, we affirm in part. However, we also reverse and remand in part because we hold that no substantive or probative evidence exists that would support the court's restriction of the child's residence to Burnet County beyond the school year 2004-05.
BACKGROUND
Tina and Troy were married in August 1995. Tina worked in automotive sales and also ran a nail salon. Troy owned and operated pawn shops in Marble Falls, Taylor, and Belton. Tina had a ten-year-old son, Anthony, from a prior relationship; Troy had no children. Tina, Troy and Anthony lived together in Burnet County throughout the marriage. Tina has no family in Burnet County. Her two sisters live in Belton and Killeen; her mother lives in West Virginia. Troy grew up in Burnet County; his parents, two siblings, and several nieces and nephews, still reside there. After M.F. was born in 1998, the couple agreed that Tina would stop working to stay home with the children.
Troy filed for divorce in April 2002. In June 2004, the district court issued its "final order" concerning conservatorship of M.F. Tina and Troy were appointed joint managing conservators, with Tina having the exclusive right to establish M.F.'s primary residence. The court stated that a possible geographic restriction would be addressed at a later date. Trial on all unresolved issues was set for July.
On the day before trial, Tina and Troy entered into a Rule 11 agreement that addressed community property issues, as well as child support. The agreement specifically stated that any issues pertaining to a geographical restriction or choice of schools for M.F. in 2004-05 would either be addressed in a separate agreement or be decided by the court. At the hearing, Tina insisted that it would be in M.F.'s best interest to allow her to move to nearby Lakeway (3) and attend public school there. Troy wanted to restrict her residence to Burnet County. When the couple could not agree, a hearing was held on July 22, 2004. At the close of the hearing the district judge announced that it was in M.F.'s best interest to remain in Burnet County and return to her same school for the first grade in Fall 2004.
A written order imposing this geographic restriction was filed on August 28.
The district court signed the initial decree of divorce on July 26, 2004. It addressed the couple's federal income tax liability for prior years and the year of divorce. The initial decree stated, "In the event that there is a refund for prior years, the parties shall split the refund." This decree also included this statement addressing income tax liability in the year of divorce: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, Tina Fox is ordered to sign any documents necessary to implement this agreement."
Although the Rule 11 agreement indicated that Troy would pay $1,200 a month in child support, the initial decree failed to impose this child support obligation.
On August 17, Troy filed a motion seeking to reform, clarify, and correct certain property issues in the initial decree. In the alternative, Troy requested a new trial. Troy insisted that the provision entitling him to any prepaid income taxes in excess of the parties' tax liability was incorrectly placed in the section addressing taxes for the year of divorce, rather than taxes for prior years, as the parties had agreed. Likewise, he argued that the clause purporting to divide any tax refund from prior years was contrary to their agreement and was erroneously inserted in the decree by Tina's attorney.
Troy argued that these mistakes rendered the decree in conflict with the parties' Rule 11 agreement, which was incorporated into the initial decree.
After a hearing on October 7, the district court modified the income tax provisions as Troy requested and added the child support obligations that had inadvertently been omitted from the initial decree. On October 13, Tina filed a request for findings of fact and conclusions of law concerning the geographic restriction and the correction and modification of the income tax provisions. On October 29, the district court denied Tina's request, finding it untimely. This appeal followed.
DISCUSSION
Findings of fact and conclusions of law
In her first two issues, Tina suggests that the district court erred by finding untimely her request for findings of fact and conclusions of law. Rule 296 provides a party with the procedural right to request from the trial court written findings of fact and conclusions of law. See Tex. R. Civ. P. 296. The trial court's duty to make such findings and conclusions is mandatory when the request is timely. See Tex. R. Civ. P. 297; see also Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Glass v. Williamson, 137 S.W.3d 114, 117-18 (Tex. App.--Houston [1st Dist.] 2004, no pet.). If a trial court does not file findings, it is presumed harmful unless the record affirmatively shows that the appellant suffered no harm. See, e.g., Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc., 763 S.W.2d at 772; Glass, 137 S.W.3d at 118.
Generally, in complicated cases with disputed facts, or with two or more grounds for recovery or defense, the inference of harm cannot be defeated. Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 54 (Tex. App.--Houston [14th Dist.] 2003, no pet.).
If, however, the lack of findings is harmless, we can affirm. See Tex. R. App. P. 44.1(a). Error is harmful if it prevents a party from properly presenting a case to the appellate court. See Tex. R. App. P. 44.1(a)(2); Tenery, 932 S.W.2d at 30; Brazoria County v. Texas Comm'n on Envtl. Quality, 128 S.W.3d 728, 744 n.10 (Tex. App.--Austin 2004, no pet.). A trial court's failure to issue findings of fact and conclusions of law will be considered harmful if, under the circumstances of the particular case, an appellant would be required to guess the reason or reasons for the trial court's decision. Brazoria County, 128 S.W.3d at 744 n.10; Elliott, 118 S.W.3d at 54.
A judgment that actually disposes of all parties and all claims is final. In re Burlington Coat Factory Warehouse, 167 S.W.3d 827, 830 (Tex. 2005). In this case, the district court retained plenary jurisdiction to modify its initial decree, and there was not a final judgment until the district court issued its October 7, 2004 order modifying the initial decree. At that time, the district court resolved the parties' dispute regarding the income tax provisions and imposed the previously agreed upon child support obligation that had not been included in the initial decree. Therefore, the district court erred by finding Tina's October 13 request for findings of fact and conclusions of law untimely. See Tex. R. Civ. P. 296 (providing that requests for findings of fact and conclusions of law be filed within twenty days after judgment is signed).
Because Tina's request was timely, we must determine whether she was harmed by the lack of findings and conclusions. Troy argues that Tina does not have to guess the reasons behind the district court's orders pertaining to either its imposition of the geographic limitation or its decision to correct and modify the initial decree because the district judge, Murray Jordan, announced his rulings and stated his reasons at the hearings. We agree.
At the hearing on the residency restriction, Judge Jordan clearly stated that his main concern was to secure a stable environment for M.F. He acknowledged that for two years the divorce proceedings had been extremely stressful for a child her age. He explained that M.F. had attended St. Peter's Lutheran School in Burnet County for the prior two school years and had made friends there. He insisted that, if M.F. were older and better equipped to deal with the stress of a move and a new school, his decision might have been different. He then stated that restricting her residence to Burnet County would make it easier for M.F. to continue in this same school. Therefore, he ordered M.F. to attend St. Peter's for the first grade (2004-05) and reside in Burnet County. He added, "It may be that a move to outside this area after a year would be appropriate."
At the hearing on Troy's motion to reform, clarify, and correct the judgment, Judge Jordan stated that there clearly were two mistakes made in drafting the decree, the income tax provisions and the omission of any child support obligation, both at odds with the parties' agreement. He suggested the mistakes were probably due to the fact that there was a hurried push to enter the initial decree the day after the Rule 11 agreement was signed. Because he found the provisions of the initial decree and the incorporated Rule 11 agreement ambiguous, he heard evidence pertaining to the parties' intentions. Subsequently, he asserted that the decree entered on July 26 did not accurately represent the parties' intentions.
The record clearly establishes the reasons underlying Judge Jordan's decisions in this case. Therefore, Tina was not harmed by the lack of written findings and conclusions of law. (4) Consequently, we overrule Tina's first two issues regarding the district court's failure to file written findings of fact and conclusions of law.
Residence restriction
In her third and fourth issues, Tina suggests that the district court abused its discretion when it ordered that M.F.'s primary residence be established solely within Burnet County and that M.F. attend St. Peter's Lutheran School for the 2004-05 school year. Tina maintains that the orders are not in the best interest of M.F., who should be allowed to move to Lakeway and enroll in its exemplary public schools. Tina claims that the move would improve both her and M.F.'s quality of life without diminishing Troy's relationship with M.F. In addition, Tina asserts that nearby Lakeway is closer to Troy and his family than other cities actually located within Burnet County.
The legislature has explicitly stated, "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002 (West 2002); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). The trial court is given wide latitude in determining the best interests of the child and will be reversed only for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.--Austin 2003, no pet.). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005). As long as some evidence of a substantive and probative character exists to support the order, we will not substitute our judgment for that of the trial court. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.).
Family code section 153.001 states that the public policy of this state is to provide a safe, stable, and nonviolent environment for the child. Tex. Fam. Code Ann. § 153.001(a)(2) (West 2002). The code is silent as to the specific factors that the trial court should consider when determining whether a residency restriction is in the best interest of the child. In Lenz, the supreme court provided some guidance in applying our state's best-interest standard when divorced parents seek to relocate. See 79 S.W.3d at 13-16. The court highlighted various relevant factors to be considered: the reasons for and against the move; the effect on extended family relationships; the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the non-custodial parent and child; the nature of the child's existing contact with both parents, and the child's age, community ties, and health and educational needs. See id. at 15-17. However, the supreme court clearly stated that suits affecting the parent-child relationship are intensely fact-driven and consequently involve careful balancing of these numerous factors. Id. at 18-19.
As we have noted, the district court's primary concern was to provide a secure and stable environment for M.F. The court heard testimony that M.F. had attended St. Peter's Lutheran School for two years and was excited about returning for the first grade. The record also indicates that many of M.F.'s extracurricular activities take place in Burnet County. In addition, there is evidence establishing that most of M.F.'s paternal extended family lives in Burnet County. Judge Jordan recognized that it was difficult for Tina to get along with Troy and his family and that it may not be in her best interest to remain in Burnet County. However, the record indicated that M.F. had been insulated from much of the familial acrimony.
Judge Jordan concluded that it would promote stability for M.F. to attend the first grade at St. Peter's:
The child has attended St. Peter's Lutheran School for two years and made friends, and that the stability for the child will be for her to stay in St. Peter's Lutheran School at least for another year.
The problem with establishing a home for the child in Lakeway would be if the child continues in St. Peter's School, she would have to be transported 35 miles to school each day. If she is closer to St. Peter's School, then it would be better for the child to be able to go to school in St. Peter's Lutheran School.
So the Court feels that the best interest of the child is that she attend St. Peter's Lutheran School one more year, but that the home of the child be established in Burnet County. . . . And certainly as the circumstances change, the-we can change the order. But at this time, I'll rule that the residence of the child be established in Burnet County, and that she be placed in St. Peter's Lutheran School for the first grade.
The record before us includes evidence supporting Judge Jordan's conclusion that the stability of the child would be served by continuing to attend St. Peter's Lutheran School for the school year 2004-05, that changing the child's residence to Lakeway would impede school attendance at St. Peter's by adding 35 miles of transportation twice a day, and that restricting the child's residence to Burnet County would facilitate the goal of keeping her in the same school for another year. Therefore, we hold that the district court did not abuse its discretion by restricting M.F.'s primary residence to Burnet County to enable her to attend the first grade at St. Peter's.
However, we find no substantive or probative evidence that would support the court's restriction of the child's residence to Burnet County and its denial of the mother's request to move to Lakeway after that school year ended. (5) We hold that the court abused its discretion in continuing the restriction and denying the mother's request to allow the child to reside in the Lakeway community after the end of the 2004-05 school year. We sustain in part Tina's third and fourth issues.
Modification and correction of the initial decree
In her final issue, Tina argues that the district court abused its discretion by ordering that the initial decree be modified and corrected. Tina claims that the district court (1) erroneously admitted evidence of the couple's settlement negotiations; (2) improperly allowed Troy to renegotiate the corrected and modified initial decree; and (3) failed to divide income tax refunds from prior years in a just and right manner.
The district court signed and filed the initial decree on July 26, 2004. On August 17, Troy filed a motion seeking to reform, clarify, and correct certain portions of the initial decree. He argued that the portions of the initial decree pertaining to the couple's income tax liabilities were ambiguous because the Rule 11 agreement was not properly incorporated into the initial decree.
On September 24, the district court held a hearing on Troy's motion. At the hearing, the district court heard testimony from Troy's attorney, Robert Gradel, and Gradel's secretary, Jennifer Bunting, that during the settlement negotiations Troy agreed to pay a portion of Tina's credit card debt in exchange for receiving any tax prepayments or overpayments. Gradel also offered into evidence copies of faxes that he sent to Tina's attorney, Glynn Turquand, pointing out this drafting error in the initial decree. In one fax, Gradel made three suggestions for language that he felt should be included in the decree. Gradel stated that two of the suggestions were adopted, but his request that the decree section entitled "Liability for Federal Income Taxes for Prior Year" include a sentence awarding Troy any refunds was not incorporated as requested. (6)
Instead, substantially similar language was placed in the section entitled Treatment/Allocation of Community Income for Year of Divorce. Finally, Gradel testified that the sentence, "In the event that there is a refund for prior years, the parties shall split the refund," was contrary to the parties' agreement as reflected in the Rule 11 agreement. Turquand objected to the admission of Gradel's and Bunting's testimony, as well as the faxes. He claimed Texas Rule of Evidence 408 barred the admission of evidence of conduct or statements made during settlement negotiations. See Tex. R. Evid. 408. Turquand also argued that both the Rule 11 agreement and the initial decree were clear and unambiguous.
The district court found the initial decree and the Rule 11 agreement ambiguous and on October 7 it ordered that three sections of the initial decree be corrected or modified. First, the district court deleted the sentence splitting tax refunds for prior years between the parties. Second, it transferred the sentence granting Troy all prepayments of tax to the section concerning tax liability for prior years. Finally, the district court ordered that the initial decree be modified to include the previously agreed upon child support provision. (7)
Ambiguity
Whether a divorce decree or an agreement is ambiguous is a question of law subject to de novo review. See Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Guerrero v. Guerra, 165 S.W.3d 778, 782 (Tex. App.--San Antonio 2004, no pet.). We interpret a divorce decree like any other judgment, reading the decree as a whole and "effectuating the order in light of the literal language used" if that language is unambiguous. Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). A judgment is ambiguous if it is susceptible to more than one reasonable interpretation. Shanks, 110 S.W.3d at 447. If the decree is ambiguous, a court should review the record along with the decree to aid in interpreting the judgment. Id.
After extensive negotiation, Tina and Troy entered into a Rule 11 agreement outlining how the marital property would be divided. The substance of the agreement was to be included in the initial decree. Specifically, the initial decree states, "The Court finds that the parties have entered into an Agreement Incident to Divorce, in a document separate from this Final Decree of Divorce. The Court approves the agreement and incorporates it by reference as part of this decree as if it were recited herein verbatim and orders the parties to do all things necessary to effectuate the agreement." The only reference to the couple's income tax liabilities in the Rule 11 agreement is found in paragraph 8 which states, "For 2004, parties [Tina and Troy] will partition income, taxes will be as if divorced on January 1, 2004. Any tax prepayment or deficit will belong to Troy for pawn shops, his income."
In her response to Troy's motion, Tina contends that paragraph 8 addresses only the couple's tax liability for 2004. However, it is unclear whether the reference to 2004 in the first sentence also modifies the second sentence governing the treatment of tax prepayments and deficits. The second sentence could be read to mean any tax prepayment or deficit in 2004, or it could be read to mean any tax prepayment or deficit from any year. This distinction is critical because Troy insists that the word "prepayment" includes overpayments from prior years. Troy maintains that he should be allowed to apply all overpaid income taxes in 2003 to offset his 2004 tax liability. Tina would confine the second sentence in paragraph 8 to the year 2004 and rely on the unexplained insertion dividing tax refunds between the parties to claim one-half of the tax refund from 2003.
We conclude that the second sentence of paragraph 8 is ambiguous because it is susceptible to more than one reasonable interpretation. Therefore, if the parties intended to award any income tax prepayments or deficits to Troy, this is in direct conflict with the provision in the initial decree that any tax refund from a prior year be divided between the parties. Because the decree specifically incorporated the Rule 11 agreement, we conclude that the provisions of the decree that address federal income tax liabilities and refunds are ambiguous. See Shanks, 110 S.W.3d at 447. Therefore, the district court did not abuse its discretion by admitting evidence for the purpose of ascertaining the parties' intentions. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 413 (Tex. App.--Austin 2005, pet. filed).
Modification
A trial court retains plenary power to vacate, modify, correct, or reform its judgment at any time until the judgment becomes final thirty days after it is signed. See Tex. R. Civ. P. 306a (time periods run from date judgment is signed), 329b (motions for new trial and motions to modify, correct, or reform judgment extend duration of trial court's plenary power); Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); In re Garza, 153 S.W.3d 97, 102 (Tex. App.--San Antonio 2004, no pet.). Within this time period, the trial court's power to modify its judgment has been described as "practically unlimited" or "virtually absolute." Rogers v. Clinton, 794 S.W.2d 9, 12 (Tex. 1990) (Cook, J., dissenting); Cook v. Cook, 888 S.W.2d 130, 131 (Tex. App.--Corpus Christi 1994, no writ).
However, once a divorce decree becomes final it is beyond the power of the trial court to issue an order that modifies the division of property. Tex. Fam. Code Ann. § 9.007(b) (West 1998). Property adjudications in a divorce decree become final the same as other judgments relating to title and possession of property. Harleaux v. Harleaux, 154 S.W.3d 925, 928 (Tex. App.--Dallas 2005, no pet.). Here, the district court's plenary power had not expired at the time it signed the October 7 order modifying the initial decree. See Tex. R. Civ. P. 329b(a) (motion to modify shall be filed within thirty days after judgment is signed), 329b(c) (if motion to modify is not determined within seventy-five days after judgment was signed, it shall be considered overruled). Therefore, the district court was authorized to modify the initial decree in accordance with the evidence of the parties' agreement. See Cook, 888 S.W.2d at 131.
The record includes testimony and evidence supporting the district court's modification of the initial decree. The modification is also supported by other non-disputed provisions of the initial decree. First, the parties agree that Troy is liable for any income tax deficit in all prior years. If Troy is liable for any prior income tax liability, it follows that he also be entitled to any tax refund or overpayment. Second, both the initial decree and the Rule 11 agreement explicitly state that community income generated in 2004, the year of divorce, shall be partitioned as if the couple were divorced on January 1, 2004. Under the partition agreement, Tina and Troy would file separate income tax returns for 2004 reflecting "all income earned by gains and losses generated by, and deductible expenses referable to assets awarded" to either Tina or Troy under the initial decree. Thus, the provision in paragraph 8 of the Rule 11 agreement that, "Any tax prepayment or deficit will belong to Troy for pawn shops, his income," would be redundant if it only applied to the year 2004.
Accordingly, we hold that the district court's modification of the income tax provisions in the decree of divorce did not constitute an abuse of discretion.
CONCLUSION
We hold that (1) Tina was not harmed by the district court's failure to issue findings of fact and conclusions of law; (2) the district court did not abuse its discretion by ordering that M.F. attend St. Peter's Lutheran School in Marble Falls for the 2004-05 school year and that she reside in Burnet County in order to facilitate her attendance at St. Peter's; and (3) the district court did not abuse its discretion by modifying and correcting the income tax provisions of the initial decree. However, we hold that the district court abused its discretion in extending the geographic restriction on the child's residence beyond the 2004-05 school year. We reverse and remand that portion of the divorce decree for further proceedings consistent with this opinion.
__________________________________________
Bea Ann Smith, Justice
Before Justices B. A. Smith, Patterson and Pemberton
Affirmed in Part; Reversed and Remanded in Part
Filed: January 13, 2006
1. For ease of reference, we will refer to the parties by their first names.
2. The divorce decree was issued in July 2004 and was entitled "Final Decree of Divorce on Property Issues." We will refer to the decree as the "initial decree." Earlier the district court had issued an order concerning conservatorship and support of the child. In that order, the district court specifically stated that any geographic restriction on the residence of the child would be addressed at a later time. The initial decree explicitly incorporated the order concerning conservatorship of the child.
3. Lakeway, Texas, is a small community approximately thirty-five miles from the Marble Falls area, which is where Tina and M.F. lived at the time of the divorce.
4. We emphasize that oral comments from the bench are not substitutes for written findings of fact and conclusions of law. See In re Jane Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); Narvaez v. Maldonado, 127 S.W.3d 313, 316 n.1 (Tex. App.--Austin 2004, no pet.). We rely on Judge Jordan's oral pronouncements solely for the purpose of conducting our harm analysis.
5. The record reflects that St. Peter's Lutheran School enrolls students from pre-kindergarten through second grade. M.F. would not be able to attend St. Peter's beyond the end of the school year 2005-06. The record does not reflect if M.F. is presently enrolled in the second grade at St. Peter's.
6. The requested insertion read: "Troy Fox shall be entitled to any taxes prepaid on behalf of Troy Fox individually or on behalf of the Pawn Shops, and Tina Fox is ordered to sign any documents necessary to implement this agreement."
7. Neither party raises a complaint about the modification adding the child support obligation to the decree of divorce.
SAPCR-MTM: Wiegman v. Wiegman (Tex.App.- Austin 2006) - No custody switch within one year of prior order; court rejects mother's affidavit
Austin Court of Appeals affirms denial of mother's bid to change custody within one year of previous order; holds that required affidavit to support petition to modify was insufficient and that trial court did not abuse its discretion in denying relief, and in declining to interview the five-year old child in chambers as to her preference for primary conservator.
Gina Cole Wiegman v. Michael Wiegman, No. 03-05-00025-CV (Tex.App.- Austin, Feb. 10, 2006)(mem. op.)(Opinion by Justice Waldrop)(modification of custody within one year denied, insufficient affidavit)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 22nd District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 02-0855, HONORABLE RONALD G. CARR, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Gina Cole Wiegman appeals from the district court's dismissal of her petition to modify the parent-child relationship. She challenges the court's denial of her request to modify the designation of the person who has the exclusive right to determine the child's primary residence and the court's refusal to confer with the five-year-old child regarding the child's preferences as to custody. We affirm the judgment.
Ms. Wiegman and Michael Wiegman are parents of a child, C.W. An order in a suit affecting the parent-child relationship was rendered on September 7, 2004. Although neither the September 2004 order nor any other previous orders appear in the record of this appeal, statements by the parties indicate that this was not the first such order concerning C.W. Statements by the parties indicate that a previous order permitted Ms. Wiegman to determine C.W.'s primary residence, and that they lived in Kansas. The September 2004 order apparently ordered joint managing conservatorship, with Mr. Wiegman having the right to determine the child's domicile, possession of the child alternating between the parents, and some specified telephone visitation for Ms. Wiegman during the periods C.W. stayed with Mr. Wiegman and his wife, Betsy. At the time of the proceedings in this cause, the parties lived in San Marcos, Texas.
Ms. Wiegman filed this petition on November 16, 2004 requesting modifications to the decree including that she be given the right to designate the primary residence of the child. She attached to her petition an affidavit detailing incidents she believed showed that the child's physical health and emotional well-being were endangered by his environment. On December 7, 2004, she filed a request that the court confer with the child. At a non-evidentiary hearing that same day, the court denied both Ms. Wiegman's request that the court interview C.W. and her motion to modify conservatorship. (1) Ms. Wiegman challenges both denials.
We review both decisions for an abuse of discretion. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied) (motion to modify); In re Marriage of Stockett, 570 S.W.2d 151, 153 (Tex. Civ. App.--Amarillo 1978, no writ) (interview of child). This standard is consistent with the general rule that a trial court's custody determination will not be disturbed absent clear abuse of discretion because of the court's superior opportunity to evaluate the child's needs and to observe and evaluate the personalities of contending claimants. See Cooper v. Texas Dep't of Human Res., 691 S.W.2d 807, 814 (Tex. App.--Austin 1985, writ ref'd n.r.e.); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion by acting unreasonably, arbitrarily, or without regard for any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A corollary principle is that we may not reverse for abuse of discretion merely because we disagree with a decision of the trial court, if that decision was within the trial court's discretionary authority. Downer, 701 S.W.2d at 242.
By her second issue, Ms. Wiegman complains about the court's refusal to interview C.W. A court may, but is not required to, interview a five-year-old child to determine the child's preference for conservatorship under the statute that provides as follows:
(a) In a nonjury trial the court may interview the child in chambers to determine the child's wishes as to conservatorship.
(b) When the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child 12 years of age or older and may interview a child under 12 years of age.
See Tex. Fam. Code Ann. § 153.009 (West Supp. 2005).
In Stockett, the trial court refused to interview a five-year-old child because it did not want that child to think, consciously or subconsciously, that she contributed to the decision of which parent was appointed her managing conservator. 570 S.W.2d at 153. The appellate court held that, under those circumstances, the trial court did not abuse its discretion. Id.
We find no abuse of discretion in the district court's refusal to interview C.W. The statute permits the court to interview children younger than twelve years old but does not require it and places no conditions on the court's refusal to exercise that option. Tex. Fam. Code Ann. § 153.009. The court did not explain its reasons beyond stating in open court that the court would not talk to a five-year-old child about where he wanted to live. The court stated that the child would need to be at least ten years old before the court would discuss the issue with the child. The court in this cause may have had the same concerns about lasting emotional trauma from the interview expressed by the court in Stockett, 570 S.W.3d at 153, or it may have had entirely different concerns. The record does not demonstrate that the trial court acted unreasonably, arbitrarily, or without regard for guiding rules or principles by declining to interview C.W. in chambers. We find that the trial court did not abuse its discretion in declining to interview C.W.
By her first issue, Ms. Wiegman contends that the court erred by denying her request to change the designation of the person having the exclusive right to determine the primary residence of the child. When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship of children. Burkhart, 960 S.W.2d at 323.
A person who seeks to change the designation of the person who has the exclusive right to determine the child's primary residence within a year after such a designation was ordered faces a heightened burden. Id. In such a circumstance, the petitioner must file an affidavit that supports a finding of the existence of one of three conditions including, as alleged in this case, that "the child's present environment may endanger the child's physical health or significantly impair the child's emotional development." See Tex. Fam. Code Ann. § 156.102(b)(1) (West Supp. 2005). If the court determines, based on the affidavit, that the facts stated are adequate to support such an allegation, the court shall set a time and place for the hearing. Id. § 156.102(c). Otherwise, the trial court "shall deny the relief sought and refuse to schedule a hearing for modification . . . ." Id.
In her affidavit, Ms. Wiegman recounts several incidents that she contends support her claim to modify conservatorship. Some predate the August 2004 hearing and the resulting September 2004 conservatorship order that Ms. Wiegman seeks to modify. The allegations include rudeness by Mr. Wiegman in front of C.W., C.W. being allowed to play on a trampoline during a storm, Mr. Wiegman failing to confer with Ms. Wiegman on matters pertaining to school and tee-ball, complaints regarding C.W.'s hygiene while staying with Mr. Wiegman, and Mr. Wiegman failing to agree on issues of rescheduling possession and transfer of possession.
In order to reverse the district court's decision, we would have to conclude that the court acted arbitrarily, unreasonably, and without reference to guiding rules and principles in refusing to schedule a hearing and dismissing the petition. See Burkhart, 960 S.W.2d at 323; see also Downer, 701 S.W.2d at 241-42. While the incidents described suggest a problematic relationship between C.W.'s parents, we cannot conclude that the court abused its discretion by implicitly determining (2) that the affidavit does not describe an environment that endangers the child's physical health or significantly impairs the child's emotional development. See Tex. Fam. Code Ann. § 156.102(b)(1).
We affirm the district court's dismissal of Ms. Wiegman's petition.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: February 10, 2006
1. Although Judge Robison orally denied the motions at the hearing, Judge Ronald Carr later signed the order memorializing the denial of Ms. Wiegman's motions in July 2005.
2. Ms. Wiegman asserts that the district court did not consider her affidavit. She refers to a section of the reporter's record in which the court stated, "I'm trying to find the motion that you're here on today. I don't see one here so far. It has to be in the file." This contains no representation about any review the court might have undertaken in the three weeks after the filing of the motion and affidavit and before the hearing. We cannot assume that the district court did not read the affidavit. We must instead presume that the court made all necessary findings and conclusions to support its decision. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). This includes review of necessary documents.
Gina Cole Wiegman v. Michael Wiegman, No. 03-05-00025-CV (Tex.App.- Austin, Feb. 10, 2006)(mem. op.)(Opinion by Justice Waldrop)(modification of custody within one year denied, insufficient affidavit)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 22nd District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 02-0855, HONORABLE RONALD G. CARR, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Gina Cole Wiegman appeals from the district court's dismissal of her petition to modify the parent-child relationship. She challenges the court's denial of her request to modify the designation of the person who has the exclusive right to determine the child's primary residence and the court's refusal to confer with the five-year-old child regarding the child's preferences as to custody. We affirm the judgment.
Ms. Wiegman and Michael Wiegman are parents of a child, C.W. An order in a suit affecting the parent-child relationship was rendered on September 7, 2004. Although neither the September 2004 order nor any other previous orders appear in the record of this appeal, statements by the parties indicate that this was not the first such order concerning C.W. Statements by the parties indicate that a previous order permitted Ms. Wiegman to determine C.W.'s primary residence, and that they lived in Kansas. The September 2004 order apparently ordered joint managing conservatorship, with Mr. Wiegman having the right to determine the child's domicile, possession of the child alternating between the parents, and some specified telephone visitation for Ms. Wiegman during the periods C.W. stayed with Mr. Wiegman and his wife, Betsy. At the time of the proceedings in this cause, the parties lived in San Marcos, Texas.
Ms. Wiegman filed this petition on November 16, 2004 requesting modifications to the decree including that she be given the right to designate the primary residence of the child. She attached to her petition an affidavit detailing incidents she believed showed that the child's physical health and emotional well-being were endangered by his environment. On December 7, 2004, she filed a request that the court confer with the child. At a non-evidentiary hearing that same day, the court denied both Ms. Wiegman's request that the court interview C.W. and her motion to modify conservatorship. (1) Ms. Wiegman challenges both denials.
We review both decisions for an abuse of discretion. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied) (motion to modify); In re Marriage of Stockett, 570 S.W.2d 151, 153 (Tex. Civ. App.--Amarillo 1978, no writ) (interview of child). This standard is consistent with the general rule that a trial court's custody determination will not be disturbed absent clear abuse of discretion because of the court's superior opportunity to evaluate the child's needs and to observe and evaluate the personalities of contending claimants. See Cooper v. Texas Dep't of Human Res., 691 S.W.2d 807, 814 (Tex. App.--Austin 1985, writ ref'd n.r.e.); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion by acting unreasonably, arbitrarily, or without regard for any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A corollary principle is that we may not reverse for abuse of discretion merely because we disagree with a decision of the trial court, if that decision was within the trial court's discretionary authority. Downer, 701 S.W.2d at 242.
By her second issue, Ms. Wiegman complains about the court's refusal to interview C.W. A court may, but is not required to, interview a five-year-old child to determine the child's preference for conservatorship under the statute that provides as follows:
(a) In a nonjury trial the court may interview the child in chambers to determine the child's wishes as to conservatorship.
(b) When the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child 12 years of age or older and may interview a child under 12 years of age.
See Tex. Fam. Code Ann. § 153.009 (West Supp. 2005).
In Stockett, the trial court refused to interview a five-year-old child because it did not want that child to think, consciously or subconsciously, that she contributed to the decision of which parent was appointed her managing conservator. 570 S.W.2d at 153. The appellate court held that, under those circumstances, the trial court did not abuse its discretion. Id.
We find no abuse of discretion in the district court's refusal to interview C.W. The statute permits the court to interview children younger than twelve years old but does not require it and places no conditions on the court's refusal to exercise that option. Tex. Fam. Code Ann. § 153.009. The court did not explain its reasons beyond stating in open court that the court would not talk to a five-year-old child about where he wanted to live. The court stated that the child would need to be at least ten years old before the court would discuss the issue with the child. The court in this cause may have had the same concerns about lasting emotional trauma from the interview expressed by the court in Stockett, 570 S.W.3d at 153, or it may have had entirely different concerns. The record does not demonstrate that the trial court acted unreasonably, arbitrarily, or without regard for guiding rules or principles by declining to interview C.W. in chambers. We find that the trial court did not abuse its discretion in declining to interview C.W.
By her first issue, Ms. Wiegman contends that the court erred by denying her request to change the designation of the person having the exclusive right to determine the primary residence of the child. When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship of children. Burkhart, 960 S.W.2d at 323.
A person who seeks to change the designation of the person who has the exclusive right to determine the child's primary residence within a year after such a designation was ordered faces a heightened burden. Id. In such a circumstance, the petitioner must file an affidavit that supports a finding of the existence of one of three conditions including, as alleged in this case, that "the child's present environment may endanger the child's physical health or significantly impair the child's emotional development." See Tex. Fam. Code Ann. § 156.102(b)(1) (West Supp. 2005). If the court determines, based on the affidavit, that the facts stated are adequate to support such an allegation, the court shall set a time and place for the hearing. Id. § 156.102(c). Otherwise, the trial court "shall deny the relief sought and refuse to schedule a hearing for modification . . . ." Id.
In her affidavit, Ms. Wiegman recounts several incidents that she contends support her claim to modify conservatorship. Some predate the August 2004 hearing and the resulting September 2004 conservatorship order that Ms. Wiegman seeks to modify. The allegations include rudeness by Mr. Wiegman in front of C.W., C.W. being allowed to play on a trampoline during a storm, Mr. Wiegman failing to confer with Ms. Wiegman on matters pertaining to school and tee-ball, complaints regarding C.W.'s hygiene while staying with Mr. Wiegman, and Mr. Wiegman failing to agree on issues of rescheduling possession and transfer of possession.
In order to reverse the district court's decision, we would have to conclude that the court acted arbitrarily, unreasonably, and without reference to guiding rules and principles in refusing to schedule a hearing and dismissing the petition. See Burkhart, 960 S.W.2d at 323; see also Downer, 701 S.W.2d at 241-42. While the incidents described suggest a problematic relationship between C.W.'s parents, we cannot conclude that the court abused its discretion by implicitly determining (2) that the affidavit does not describe an environment that endangers the child's physical health or significantly impairs the child's emotional development. See Tex. Fam. Code Ann. § 156.102(b)(1).
We affirm the district court's dismissal of Ms. Wiegman's petition.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: February 10, 2006
1. Although Judge Robison orally denied the motions at the hearing, Judge Ronald Carr later signed the order memorializing the denial of Ms. Wiegman's motions in July 2005.
2. Ms. Wiegman asserts that the district court did not consider her affidavit. She refers to a section of the reporter's record in which the court stated, "I'm trying to find the motion that you're here on today. I don't see one here so far. It has to be in the file." This contains no representation about any review the court might have undertaken in the three weeks after the filing of the motion and affidavit and before the hearing. We cannot assume that the district court did not read the affidavit. We must instead presume that the court made all necessary findings and conclusions to support its decision. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). This includes review of necessary documents.
SAPCR-MTM: Howze v. Howze (Tex.App.- Austin 2006) - Jury's denial of custody change to mother affirmed
Austin Court of Appeals rejects complaint about guardian for child serving in dual capacity, finding waiver for purposes of appeal; also rejects claim of ineffective assistance of counsel; and affirms order denying mother's request for conservatorship with right to designate child's residence based on jury's verdict.
Judy Howze v. William Howze, No. 03-03-00166-CV (Tex.App.- Austin, May 18, 2006)(Opinion by Chief Justice Law)(modification, GAL, AAL)(Before Chief Justice Law, Justices Patterson and Smith)
Appeal from 27th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 148,770-A, HONORABLE JOE CARROLL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N BY
This appeal arises out of appellant's motion to modify a joint managing conservatorship to change the conservator with the right to designate the residence of the child L.H. from William Howze to Judy Howze. (1) After trial, the jury found that no modification should be made, leaving William Howze as the conservator with the right to designate the residence. The court signed an order in accordance with the jury's verdict, from which Judy Howze appeals.
In three issues on appeal, Judy Howze contends that the same person was improperly appointed as both the guardian and attorney ad litem; that her child received ineffective assistance of counsel; and that she was deprived of her right to protect the best interest of her child.
Background
The disputed issue in this case was with whom L.H. would live. Because we will dispose of the issues presented on procedural grounds and there are no factual or legal sufficiency issues or abuse of discretion issues, we do not have to discuss in detail the allegations and counter-allegations between the parents. Basically, Judy Howze contended that L.H. preferred living with her. William Howze and others (2) disputed that assertion, alleging that Judy Howze manipulated L.H. and put words in his mouth.
Discussion
Dual appointment
In her first issue, Judy Howze complains that the same person was appointed as both guardian and attorney ad litem. The family code provides for a dual appointment in certain circumstances. Tex. Fam. Code Ann. § 107.0125 (West Supp. 2005). Before we delve too deeply into this issue, however, we must first determine whether error has been preserved.
If an issue is not raised at the trial court level, it will not be addressed on appeal. See Tex. R. App. P. 33.1. If a party fails to object and bring error to the trial court's attention, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); In re Lendman, 170 S.W.3d 894, 898 (Tex. App.--Texarkana 2005, no pet.). A party may not enlarge a ground of error on appeal to include an objection not asserted at trial. See In re Lendham, 170 S.W.3d at 898. Judicial economy requires that the trial court have the opportunity to correct error before an appeal ensues. Nadolney v. Taub, 116 S.W.3d 273, 282-83 (Tex. App.--Houston [14th Dist.] 2003, pet. denied) (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999)).
The orderly administration of justice requires that issues and objections be raised in the trial court so that justice may be done there rather than allowing a litigant to wait until after the trial court has acted adversely and then complain for the first time on appeal. National Lloyds Ins. Co. v. McCasland, 566 S.W.2d 565, 568-69 (Tex. 1978); Powell v. Powell, 604 S.W.2d 491, 493 (Tex. Civ. App.--Dallas 1980, no writ). Another reason for requiring a litigant in a civil case to lay a predicate in the trial court before pursuing an appeal is that a litigant should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating a complaint for the first time. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)).
We conclude that this issue has not been preserved for review. Judy Howze (3) moved for the appointment of an attorney ad litem. She signed the agreed order that appointed the ad litem to her dual role. A pre-trial hearing was held two months before trial, at which time the ad litem disclosed her recommendation that L.H.'s residence remain with his father. Judy Howze did not object. No objection was made by either party, nor was one made as the ad litem acted during the trial.
This situation illustrates the underlying jurisprudential concerns behind the rules on preservation. A litigant who has had ample opportunity to object and raise a complaint at the trial court level cannot wait until an adverse jury outcome, and for the first time on appeal, object to a matter that the trial court could have remedied. See National Lloyds Ins. Co., 566 S.W.2d at 568-69. We overrule the first issue.
Ineffective Assistance
In her second issue, Judy Howze contends that her child was denied effective assistance of counsel. The doctrine of ineffective assistance of counsel does not extend to civil cases in general. See Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.--Houston [14th Dist.] 2003, no pet.); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.--Beaumont 1998, pet. denied). The case on which appellant relies involved a termination of parental rights. See In re K.L., I.L., & D.L., 91 S.W.3d 1, 3 (Tex. App.--Fort Worth 2002, no pet.).
The Texas Supreme Court has held that the doctrine of ineffective assistance applies in termination cases. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (statutory right to counsel in parental-rights termination cases embodies right to effective counsel). This is not a termination case nor a case involving loss of custody or loss of visitation rights. It is a case about changing the status quo with regard to which parent decides where the child will reside. As such, we apply the general rule that there is no right to effective assistance of counsel in a civil matter. See Cherqui, 116 S.W.3d at 343. Accordingly, we overrule the second issue.
Deprivation of ability to protect best interest of child
In her third issue, Judy Howze contends that the trial court's decision to appoint an ad litem deprived her of her ability to protect the best interest of her child. We again note that Judy Howze requested the appointment of an ad litem and failed to object as the proceedings continued, thus waiving any appellate complaints concerning the ad litem's appointment. Further, this issue assumes that because the outcome of this proceeding was not as Judy Howze desired, the child's best interests were not protected. However, the jury had a great deal of evidence before it, much of it in the form of evidence from various relatives and teachers concerning the detrimental effects, such as lowered grades, observed during periods when the child had resided with his mother from which to draw its conclusion concerning the child's best interest.
Texas courts have held that application of the best interest of the child standard does not violate a parent's due process rights. See Peck v. Peck, 172 S.W.3d 26, 34 (Tex. App.--Dallas 2005, pet. denied); In re H.D.O., 580 S.W.2d 421, 423-24 (Tex. Civ. App.--Eastland 1979, no writ). The finder of fact is charged with making a decision based upon the testimony, but also based upon its experience and understanding of the individuals involved and their circumstances because it is in the best position to observe the demeanor and personality of the witness and to "feel the forces, powers, and influences that cannot be discerned by merely reading the record." Peck, 172 S.W.3d at 35 (quoting In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.--Dallas 2003, no pet.).
That a parent disagrees with the court's determination as to the child's best interest does not mean that the child's best interest was not protected. See id. at 34 (every custody and visitation order limits a parent's rights to some extent). We overrule the third issue.
Conclusion
We have overruled appellant's three issues. We affirm the trial court's order.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed: May 18, 2006
1. For clarity, we will refer to the parties by their full names.
2. Other witnesses included L.H.'s older brother and teachers.
3. All parties were represented by counsel.
Judy Howze v. William Howze, No. 03-03-00166-CV (Tex.App.- Austin, May 18, 2006)(Opinion by Chief Justice Law)(modification, GAL, AAL)(Before Chief Justice Law, Justices Patterson and Smith)
Appeal from 27th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 148,770-A, HONORABLE JOE CARROLL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N BY
This appeal arises out of appellant's motion to modify a joint managing conservatorship to change the conservator with the right to designate the residence of the child L.H. from William Howze to Judy Howze. (1) After trial, the jury found that no modification should be made, leaving William Howze as the conservator with the right to designate the residence. The court signed an order in accordance with the jury's verdict, from which Judy Howze appeals.
In three issues on appeal, Judy Howze contends that the same person was improperly appointed as both the guardian and attorney ad litem; that her child received ineffective assistance of counsel; and that she was deprived of her right to protect the best interest of her child.
Background
The disputed issue in this case was with whom L.H. would live. Because we will dispose of the issues presented on procedural grounds and there are no factual or legal sufficiency issues or abuse of discretion issues, we do not have to discuss in detail the allegations and counter-allegations between the parents. Basically, Judy Howze contended that L.H. preferred living with her. William Howze and others (2) disputed that assertion, alleging that Judy Howze manipulated L.H. and put words in his mouth.
Discussion
Dual appointment
In her first issue, Judy Howze complains that the same person was appointed as both guardian and attorney ad litem. The family code provides for a dual appointment in certain circumstances. Tex. Fam. Code Ann. § 107.0125 (West Supp. 2005). Before we delve too deeply into this issue, however, we must first determine whether error has been preserved.
If an issue is not raised at the trial court level, it will not be addressed on appeal. See Tex. R. App. P. 33.1. If a party fails to object and bring error to the trial court's attention, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991); In re Lendman, 170 S.W.3d 894, 898 (Tex. App.--Texarkana 2005, no pet.). A party may not enlarge a ground of error on appeal to include an objection not asserted at trial. See In re Lendham, 170 S.W.3d at 898. Judicial economy requires that the trial court have the opportunity to correct error before an appeal ensues. Nadolney v. Taub, 116 S.W.3d 273, 282-83 (Tex. App.--Houston [14th Dist.] 2003, pet. denied) (citing In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999)).
The orderly administration of justice requires that issues and objections be raised in the trial court so that justice may be done there rather than allowing a litigant to wait until after the trial court has acted adversely and then complain for the first time on appeal. National Lloyds Ins. Co. v. McCasland, 566 S.W.2d 565, 568-69 (Tex. 1978); Powell v. Powell, 604 S.W.2d 491, 493 (Tex. Civ. App.--Dallas 1980, no writ). Another reason for requiring a litigant in a civil case to lay a predicate in the trial court before pursuing an appeal is that a litigant should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating a complaint for the first time. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)).
We conclude that this issue has not been preserved for review. Judy Howze (3) moved for the appointment of an attorney ad litem. She signed the agreed order that appointed the ad litem to her dual role. A pre-trial hearing was held two months before trial, at which time the ad litem disclosed her recommendation that L.H.'s residence remain with his father. Judy Howze did not object. No objection was made by either party, nor was one made as the ad litem acted during the trial.
This situation illustrates the underlying jurisprudential concerns behind the rules on preservation. A litigant who has had ample opportunity to object and raise a complaint at the trial court level cannot wait until an adverse jury outcome, and for the first time on appeal, object to a matter that the trial court could have remedied. See National Lloyds Ins. Co., 566 S.W.2d at 568-69. We overrule the first issue.
Ineffective Assistance
In her second issue, Judy Howze contends that her child was denied effective assistance of counsel. The doctrine of ineffective assistance of counsel does not extend to civil cases in general. See Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.--Houston [14th Dist.] 2003, no pet.); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.--Beaumont 1998, pet. denied). The case on which appellant relies involved a termination of parental rights. See In re K.L., I.L., & D.L., 91 S.W.3d 1, 3 (Tex. App.--Fort Worth 2002, no pet.).
The Texas Supreme Court has held that the doctrine of ineffective assistance applies in termination cases. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (statutory right to counsel in parental-rights termination cases embodies right to effective counsel). This is not a termination case nor a case involving loss of custody or loss of visitation rights. It is a case about changing the status quo with regard to which parent decides where the child will reside. As such, we apply the general rule that there is no right to effective assistance of counsel in a civil matter. See Cherqui, 116 S.W.3d at 343. Accordingly, we overrule the second issue.
Deprivation of ability to protect best interest of child
In her third issue, Judy Howze contends that the trial court's decision to appoint an ad litem deprived her of her ability to protect the best interest of her child. We again note that Judy Howze requested the appointment of an ad litem and failed to object as the proceedings continued, thus waiving any appellate complaints concerning the ad litem's appointment. Further, this issue assumes that because the outcome of this proceeding was not as Judy Howze desired, the child's best interests were not protected. However, the jury had a great deal of evidence before it, much of it in the form of evidence from various relatives and teachers concerning the detrimental effects, such as lowered grades, observed during periods when the child had resided with his mother from which to draw its conclusion concerning the child's best interest.
Texas courts have held that application of the best interest of the child standard does not violate a parent's due process rights. See Peck v. Peck, 172 S.W.3d 26, 34 (Tex. App.--Dallas 2005, pet. denied); In re H.D.O., 580 S.W.2d 421, 423-24 (Tex. Civ. App.--Eastland 1979, no writ). The finder of fact is charged with making a decision based upon the testimony, but also based upon its experience and understanding of the individuals involved and their circumstances because it is in the best position to observe the demeanor and personality of the witness and to "feel the forces, powers, and influences that cannot be discerned by merely reading the record." Peck, 172 S.W.3d at 35 (quoting In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.--Dallas 2003, no pet.).
That a parent disagrees with the court's determination as to the child's best interest does not mean that the child's best interest was not protected. See id. at 34 (every custody and visitation order limits a parent's rights to some extent). We overrule the third issue.
Conclusion
We have overruled appellant's three issues. We affirm the trial court's order.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Affirmed
Filed: May 18, 2006
1. For clarity, we will refer to the parties by their full names.
2. Other witnesses included L.H.'s older brother and teachers.
3. All parties were represented by counsel.
SAPCR-MTM: Zeifman v. Michels (Tex.App.- Austin 2006)
In the this modification proceeding the reviewing court on appeal disagreed that the mother had met her burden to show a material and substantial change to justify giving her the exclusive right to make educational decisions for the parties' child. Finding that the trial court had abused its discretion in ordering the modification, the Austin Court of Appeals reversed the trial court's order and rendered judgment for the father.
Clifford Zeifman v. Sheryl Diane Michels, No. 03-05-00533-CV (Tex.App.- Austin, Aug. 4, 2006)(Opinion by Justice Patterson)(suit for modification of parental rights, grant of exclusive right to make educational decisions reversed)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 97-09369, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
OPINION BY JUSTICE PATTERSON
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 District] 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 arbitrary nor unreasonable. Id.
If findings of fact and conclusions of law are properly requested, the trial court's duty to file findings and conclusions is mandatory, and the failure to respond when all requests have been properly made is presumed harmful unless the record shows that the complaining party has suffered no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The court must make findings on each material issue raised by the pleadings and evidence, but not on evidentiary issues. In re Davis, 30 S.W.3d 609, 614 (Tex. App.--Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.--El Paso 1999, no pet.). Because the trial court did not issue any findings of fact or conclusions of law, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). But when the appellate record includes both the reporter's record and the clerk's record, as it does here, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). We thus turn to the standard for a challenge to the legal sufficiency of the evidence.
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
A legal sufficiency challenge may be sustained when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the finding under review, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. We must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex. 2005).
In determining a factual sufficiency question, we weigh and consider all the evidence in the record. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Modification of Conservatorship Because of Material and Substantial Change
To support modification of an order regarding conservatorship, a trial court must find that the modification would be in the best interest of the child and, as it applies to this case, that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1) (West Supp. 2005). The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.--Dallas 2004, no pet.); In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.--Fort Worth 2002, pet. denied); Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ). The best interest of the child is always the primary consideration of the court in determining issues of conservatorship. Tex. Fam. Code Ann. § 153.002 (West 2002).
In a conservatorship modification action, a threshold inquiry of the trial court is whether the moving party has met the burden imposed upon him of showing a material and substantial change; otherwise the trial court must deny the motion to modify. Bates v. Tesar, 81 S.W.3d 411, 427 (Tex. App.--El Paso 2002, no pet.). To prove that a material change in circumstances has occurred, the petitioner must demonstrate what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify. Agraz, 143 S.W.3d at 554; Considine, 726 S.W.2d at 255. The petitioner must show what material changes have occurred in the intervening period. Id.
(1) The Petition to Modify Parent-Child Relationship
The only basis asserted in the modification petition to support the requirement of a material and substantial change was A.A.'s application and admission to St. Andrew's. Having gained her daughter's admission to St. Andrew's Episcopal School, Michels filed a modification petition seeking a departure from the negotiated agreement concerning her daughter's education contained in the agreed divorce degree. Zeifman opposed the modification, seeking to continue their daughter's education at Bryker Woods, the public school to which the parties had agreed and set forth in the divorce decree. Although the petition references both children, the parties agree that the modification at issue and the court's order relate only to A.A.
(2) The Evidence
The testimony showed that the dispute that led to the filing of the petition for modification arose when Michels applied for and obtained A.A.'s admittance to St. Andrew's Episcopal School. As a Jew raising Jewish children, Zeifman opposed the modification because he did not want the child to attend a Christian school and she was thriving at the public school the parties had agreed to in the divorce decree.
The undisputed evidence showed that A.A. progressed successfully through kindergarten, first grade and the beginning of second grade at Bryker Woods prior to trial. In April 2004, Zeifman and Michels discussed enrolling A.A. at a private school. Zeifman proposed that A.A. attend the Austin Jewish Academy, but Michels disagreed and rejected the proposal. Michels did not believe the academy had "the academic strengths that I would require for her to be there." Without notifying Zeifman, Michels contacted and applied to St. Andrew's for admission, had A.A. tested, and asked A.A.'s current first-grade teacher for a recommendation. After A.A. was placed on a waiting list on May 3 subject to available openings at the school, Michels notified Zeifman. A.A. was accepted for admission on June 28. On June 30, Michels executed the school's enrollment contract and forwarded a tuition check. She informed the school, "I am working with her father to get his agreement regarding her attendance. Otherwise her enrollment will be subject to modification of our divorce decree."
Zeifman did not agree to enroll A.A. at St. Andrew's, insisting that the parties follow the agreement to send her to Bryker Woods, the public school to which the parties had agreed, and at which the parties agreed she was doing well. Zeifman testified,
My daughter is thriving at the community public school across the street from my home. And I would only agree to enroll her in something that she had a demonstrable need for, like [G.L.] has a need for a specialized school, or that Sheryl [Michels] and I agreed was a place that was going to better fit our idea of how we want to raise our kids.
As long as A.A. was thriving at Bryker Woods, and there was no demonstrable need to send her to a specialized private school, Zeifman would not agree to send A.A. to a private school other than the Austin Jewish Academy, a school with the religious affiliation in which the parties agreed A.A. was being raised.
To support her petition that a material and substantial change had occurred since the rendition of the original divorce decree, Michels offered evidence that in the years since the time of the parties' divorce, A.A. had grown "from an infant to a beautiful, smart, lovely 7-year old girl." She urged that A.A.'s academic abilities and opportunities had surpassed the expectations the parents had at the time of the divorce decree. In support of the modification order, Michels testified,
Q: At the time, did you have any idea that there would be an opportunity for her to attend St. Andrew's school?
A: No I did not.
. . . .
Q: What other--now other than the mere passage of physical time, have there been other changes that have occurred--significant changes that have occurred in either your life or in Mr. Zeifman's life?
A: I believe there have been significant changes.
Q: And could you tell the Court what those are.
A: In my life or--
Q: Well, let's start with your life.
A: Okay. Well, since the--since September of '97, that's been quite a bit of time, I think I've grown in a lot of ways. My children have grown up, and I've certainly learned from them. I've grown as a parent. Hopefully, as a big sister, as a daughter, as a friend, as a person, as a physician, as all of those things in these years of life experience. I think I'm happier and hopefully smarter.
Q: How has your daughter changed?
A: She's grown up from an infant to a beautiful, smart, lovely seven-year-old girl. She's proved herself to be social, a gymnast, a cheerleader, smart in school. Academically, she's very, very bright. She's basically grown up from an infant to a young child with extraordinary potential.
Q: And has she--at the time that she was 14 months old and you entered into this agreed divorce decree, did you have any idea for sure how she was going to turn out?
A: No.
. . . .
Q: And did you come to a--what about your daughter, did you have idea how smart she was going to be?
A: No. I had hoped, but I didn't know.
Michels acknowledged that her daughter was doing very well at Bryker Woods.
Much of the testimony adduced by Michels centered on St. Andrew's reputation as a high achieving school and the desirability of a child remaining in a single school through high school as she would be able to do at St. Andrew's. Michels's partner in her medical group testified that he served on the St. Andrew's board of trustees, that his children attended St. Andrew's, that the school sets a high academic standard and provides a diverse culture respectful of various religions, and that he is familiar with A.A. but has not "seen [her] in years, but I know who she is."
Education consultant Christopher Kocerik testified that he was first contacted by Michels on July 8, 2004. Michels advised him that "she had identified a school that she thought was best, and wanted me to concur if--or give my opinion on as to whether or not that was the best school for her." Michels told Kocerik that a "custody" matter was involved and that he might be called upon to testify. Kocerik did not investigate other schools or make a recommendation regarding schools. He testified, "She asked us to look at her daughter's needs, and look at the option of St. Andrew's." Kocerik concluded that St. Andrew's would be a "good match" and a "good opportunity" for A.A.
The lawyer who represented Michels in her divorce also testified on her behalf. She had observed A.A. since the divorce and testified that "she's grown up, she's become a lot more articulate and it is striking how bright she is." She also testified to the benefits of private school over public school. Lucy Nazro, the head of St. Andrew's, testified that, based upon A.A.'s test scores, she would do well at St. Andrew's. She explained that the school offers continuity through high school to its students as well as other opportunities not offered by the public schools such as public service opportunities, foreign languages, and ethics courses. Dr. Nazro testified that she had a telephone conversation with Zeifman in which they discussed the academics of the school and he inquired into the religious life of the school, particularly the practice of daily chapel.
Zeifman testified that he lives across the street from Bryker Woods and has remarried. Because he lives so close, he drops by the school once or twice a week and "bump[s] into the principal fairly often." He testified to his son's learning disability and that he and Michels agreed to deviate from the agreement to meet their son's special educational needs. Zeifman testified that A.A.'s academic and social needs were being met at Bryker Woods and that she was thriving there. When Michels rejected his suggestion that A.A. attend the Austin Jewish Academy and applied instead to St. Andrew's without his knowledge or consent, Zeifman insisted upon following the decree and having A.A. continue her education at Bryker Woods. He testified that the academics of the schools was never an issue: "You know, we're in a very good public school, and my daughter, as evidenced by all the results that have been admitted, has been pretty well served by whatever we're doing."
Casey Herrin, A.A.'s first-grade teacher testified that she had taught first grade at Bryker Woods for five years and that A.A. had been in her class. Herrin described A.A. as a "very pleasant, very bright" "typical first grader." She was among the top students in the class but had not been accepted for the gifted and talented program. Herrin testified that both parents were involved and concerned about their daughter's academic progress: "They both did make sure to frequently check with me to make sure she was progressing as she should be." A.A.'s stepmother was also involved at the school.
At Michels's request, Herrin had completed the recommendation form that accompanied A.A.'s application for admission to St. Andrew's. At the time of its submission, Herrin learned that Zeifman was not aware that Michels had asked her to fill out the recommendation. She knew that Michels was interested in sending her daughter to St. Andrew's: "And I felt like, obviously, this was something that her parents were going to decide, and that it was my obligation as her former teacher to go ahead and fill this out for her." Over the summer, probably in June, Michels asked for her assistance in helping the parents decide which school A.A. should attend. Herrin testified,
I told her that I'd have to think about it and get back to her. And when I eventually got back to her, I informed her that I thought it would be best if [she] stayed at Bryker Woods. . . . I felt like at one point both parents, obviously, agreed that Bryker Woods was a good school for [her]. And so I thought best just leave it alone. . . . I didn't feel like there was any strong need that wasn't being met at Bryker Woods.
Herrin testified that she told Michels that "I thought it would be best if A.A. stayed at Bryker Woods." They had no further conversations. In response to cross examination, Herrin testified that Zeifman expressed concerns to her that he thought Bryker Woods was a good school for his daughter and he had some concerns that St. Andrew's was a religiously affiliated school.
A Bryker Woods counselor and the principal also testified to the suitability of the school for A.A.'s needs and its standing in the academic community. The counselor testified that A.A.'s needs were "absolutely" met at the school and that her current second grade teacher was "one of the most highly professional teachers I've ever worked with." The principal testified that the school is a "wonderful little school" that is unique because it is a school of choice for half of its 378 enrolled students. The school was generally rated "exemplary" in its academic ranking by the Texas Educational Association but had dropped to "recognized" in the 2003/2004 year. He attributed the change to the addition of the science portion of the test. All of the other test scores had been in the exemplary range over the cut-off score of ninety percent. He testified that the school is a well-regarded school with extensive parental involvement and small class sizes. He knows most of the students by name and is familiar with A.A. He testified that she "seems like a great child" who gets along well with other students. He testified,
I feel that [she] is doing a fine job, you know, in second grade. I think that she has a wonderful classroom teacher, very caring classroom teacher, and a very experienced teacher. That's the other good thing that I will like to share also about Bryker Woods is we have very little teacher turnover. The teachers who have been there have been there for many, many years. . . . [I]t's a wonderful environment. It's a small school . . . a great place.
At the conclusion of the trial, the trial judge told the parties that she was "puzzled to have such an issue brought before this Court" and that she had "struggled listening to the testimony" that "veered off course in some ways" from the issues, stating,
I became extremely frustrated with the concept that I'm supposed to decide that St. Andrew's is better than the AISD school system for your child. Even if I accept that St. Andrew's is a premier school and better than AISD, is that really the issue? Because it really isn't about whether Harvard is better than UT. It really is about where the child will actually flourish. And I'm not sure I understand or know that answer. And I struggled all last evening with what my role was today. Am I supposed to tell you your child will be more successful at St. Andrew's, or your child will be more successful in the AISD School District.
Legal Sufficiency of the Evidence
The issue is whether the trial court's determination that there was a material and substantial change in circumstances was an abuse of discretion. Based on the evidence, we conclude that it was.
A court's determination as to whether a material and substantial change of circumstances has occurred is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.--Fort Worth 2003, no pet.). Evidence of a parent's subsequent marriage to another can constitute a relevant, material change of circumstances after rendition of the decree sought to be modified. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.--Waco 2000, pet. denied).
Likewise, change in the age of a child may constitute a material change. In re Davis, 30 S.W.3d 609, 615 (Tex. App.--Texarkana 2000, no pet.); see also Horne v. Hardwell, 533 S.W.2d 450, 452 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.). Increase in age alone is not a changed circumstance to justify modification unless changed needs are shown. E.g., Voros v. Turnage, 856 S.W.2d 759, 762 (Tex. App.--Houston [1st Dist.] 1993, writ denied); Randle v. Randle, 700 S.W.2d 314, 316-17 (Tex. App.--Houston [1st Dist.] 1985, no writ).
In any event, the cases finding a material change based on a change in the age of a child are distinguishable from this case. None of the cases in which a court found the change in the age of a child to support a modification included a negotiated agreement that specifically contemplated the change and provided a dispute resolution mechanism as in this case. To allow aging alone to constitute a material and substantial change in the face of the agreement would render both the agreement and the language of the statute meaningless.
Although courts have allowed changes to be proved in a variety of ways, they have consistently required that a change be proved and that it be shown to be substantial and material. See, e.g., Agraz, 143 S.W.3d at 554 (evidence that father not participating in raising children insufficient to show prior conditions or material change); London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (court compared financial circumstances of the affected parties at time of original order with circumstances at time modification sought finding changed circumstances); Echols, 85 S.W.3d at 479 (court found changed circumstances included aging of child, remarriages and additional children in both families); Considine, 726 S.W.2d at 255 (re-marriage by one party and relocation to Canada held insufficient). In Considine, this Court stated that "to prove that a material change of circumstances has occurred, the movant must demonstrate what conditions existed at the time of the entry of the prior order. Once such conditions have been established, the movant must show what material changes have occurred in the intervening period." 726 S.W.2d at 255. (1)
In that case, we concluded that a parent's remarriage and change of residence to Canada did not constitute a material and substantial change as to support the modification of conservatorship. Id.
Zeifman contends that there was no showing that the circumstances with respect to A.A.'s education have materially and substantially changed. We agree.
A.A. was an infant when the parties divorced and in second grade when the case was tried in October 2004. The change alleged in the petition was her application and admission to St. Andrew's. At trial, in response to specific questioning as to the change in circumstances, Michels testified only that the change was that A.A. had grown from an infant into a "beautiful, smart, lovely" seven-year-old and that her academic ability had surpassed Michels's expectations at the time of the divorce. At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. When a disagreement arose in the instance of their son's special educational needs, the parties resolved the change pursuant to the terms of the agreement.
The evidence showed that after the parties divorced they continued to raise A.A. in the Jewish faith and they continue to adhere to that faith. A.A. attends religious school at Congregation Agudas Achim and pursues other activities and camps sponsored by the Jewish Community Center. The parties agree she is being raised Jewish and is part of the Jewish community, as she has been since she was born. The modification sought specifically to allow Michels to send A.A. to St. Andrew's would mark a significant change in the child's secular and religious education. That Zeifman objected to A.A. attending a religious private school based upon a different faith is consistent with the parties' intent to specify these educational decisions in their agreement to anticipate and avoid such conflicts.
The evidence showed that A.A. is a bright and academically talented girl who is thriving at Bryker Woods, a school located across the street from her father's home. The undisputed evidence also showed that she did very well academically and socially at Bryker Woods, and that her academic and social needs were being met. The only evidence that she might do better at St. Andrew's or that it might be more "suitable" is speculative and, in any event, not sufficient to constitute a material and substantial change.
We do not agree that this evidence shows a change in circumstances as contemplated by section 156.101. See Tex. Fam. Code Ann. § 156.101. To accept Michels's interpretation of the requirement of a "material and substantial" change would render its language meaningless if age alone were sufficient in light of the parties' prior agreement. Although there may be a variety of methods of showing material and substantial change, the requirement is that a change must be shown. We conclude Michels's evidence is no evidence of a change in conditions. Even assuming that the St. Andrew's application and admission or A.A.'s change of age constituted changes not contemplated by the agreement, there was no evidence that either change was material or substantial.
Moreover, as in all suits regarding the conservatorship of a child, the court's primary consideration "shall always be the best interest of the child." Tex. Fam. Code Ann. § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). A court may use the nonexhaustive list of Holley factors to determine the child's best interest. Holley v. Adams, 554 S.W.2d 367, 371-71 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child, the stability of the home, the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id. at 371-72. In the context of custody modification, other factors to be considered include the child's need for stability and the need to prevent constant litigation in child-custody cases. V.L.K., 24 S.W.3d at 343.
The policy behind the requirement of a material and substantial change is to prevent constant relitigation with respect to children. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.--Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.) (requirement of material and substantial change predicated upon doctrine of res judicata as to best interest of child at time of original decree awarding conservatorship). When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Bates, 81 S.W.3d at 423. The requirement of this showing "serves a valid purpose of significantly limiting the trial judge's discretion and prevents the modification statute from being unconstitutionally broad." M.N.G., 113 S.W.3d at 34.
Although the trial court heard contradictory testimony about events that had occurred between the parties, the undisputed evidence established that A.A. was thriving at Bryker Woods under the educational plan agreed to in the divorce decree. Much of the testimony focused on the relative academic standing of the two schools as well as the advantages of a private school over a public school. Michels acknowledged that A.A. was doing very well at Bryker Woods and that she would not be harmed by staying at Bryker Woods. A.A.'s teacher, who provided the recommendation for her admission to St. Andrew's, testified that she believed that it would be in A.A.'s best interest to stay at Bryker Woods. There was no expert testimony or other evidence that the change in schools would be in A.A.'s best interest. Because A.A. was making good grades and thriving at Bryker Woods, and there was no evidence to show that it was in her best interest to change schools, a review of the record does not establish that the evidence is sufficient to support the trial court's findings.
At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.
We would be remiss if we did not observe that, with the passage of the Texas Alternative Dispute Resolution Act, it became public policy to "encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures." Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2005). It would undermine the efforts of mediated settlement agreements for us to allow a modification on circumstances that were clearly contemplated by the parties at the time of the rendition of the original divorce decree. We also observe, however, that the existence of a mediated settlement agreement does not alter the requirements of section 156.101; we hold only that, on the record before us, the petitioner failed to carry her burden of demonstrating a material and substantial change of circumstances and that the modification would be in the best interest of the child. See Tex. Fam. Code Ann. § 156.101. (2)
CONCLUSION
We conclude that the evidence is legally insufficient to support the trial court's finding that the circumstances of the child, as specifically alleged in the petition, or of either conservator have materially and substantially changed. We hold that, based on the record before us, the trial court abused its discretion in ordering modification. We sustain appellant's challenge to the legal sufficiency of the modification. We reverse the trial court's order to modify and render judgment in favor of Zeifman.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Pemberton: Opinion by Justice Patterson;
Concurring Opinion by Justice Pemberton
Reversed and Rendered
Filed: August 4, 2006
1. For the trial court to determine if a material and substantial change has occurred, most courts require a comparison between the original circumstances of the child and the affected parties at the time the existing order was entered with their circumstances at the time the modification is sought. E.g., London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Thus, the record must contain both historical and current evidence of the relevant circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a change has occurred. Id. at 144-45.
2. Because of our disposition of the legal sufficiency issue, we need not address the remaining issues regarding factual sufficiency.
Clifford Zeifman v. Sheryl Diane Michels, No. 03-05-00533-CV (Tex.App.- Austin, Aug. 4, 2006)(Opinion by Justice Patterson)(suit for modification of parental rights, grant of exclusive right to make educational decisions reversed)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 126th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 97-09369, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
OPINION BY JUSTICE PATTERSON
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 District] 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 arbitrary nor unreasonable. Id.
If findings of fact and conclusions of law are properly requested, the trial court's duty to file findings and conclusions is mandatory, and the failure to respond when all requests have been properly made is presumed harmful unless the record shows that the complaining party has suffered no injury. See Tex. R. Civ. P. 296; Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). The court must make findings on each material issue raised by the pleadings and evidence, but not on evidentiary issues. In re Davis, 30 S.W.3d 609, 614 (Tex. App.--Texarkana 2000, no pet.); Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.--El Paso 1999, no pet.). Because the trial court did not issue any findings of fact or conclusions of law, all facts necessary to support the trial court's ruling and supported by the evidence are implied in favor of the trial court's decision. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). But when the appellate record includes both the reporter's record and the clerk's record, as it does here, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). We thus turn to the standard for a challenge to the legal sufficiency of the evidence.
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
A legal sufficiency challenge may be sustained when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the finding under review, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. We must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex. 2005).
In determining a factual sufficiency question, we weigh and consider all the evidence in the record. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Modification of Conservatorship Because of Material and Substantial Change
To support modification of an order regarding conservatorship, a trial court must find that the modification would be in the best interest of the child and, as it applies to this case, that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1) (West Supp. 2005). The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.--Dallas 2004, no pet.); In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.--Fort Worth 2002, pet. denied); Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ). The best interest of the child is always the primary consideration of the court in determining issues of conservatorship. Tex. Fam. Code Ann. § 153.002 (West 2002).
In a conservatorship modification action, a threshold inquiry of the trial court is whether the moving party has met the burden imposed upon him of showing a material and substantial change; otherwise the trial court must deny the motion to modify. Bates v. Tesar, 81 S.W.3d 411, 427 (Tex. App.--El Paso 2002, no pet.). To prove that a material change in circumstances has occurred, the petitioner must demonstrate what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify. Agraz, 143 S.W.3d at 554; Considine, 726 S.W.2d at 255. The petitioner must show what material changes have occurred in the intervening period. Id.
(1) The Petition to Modify Parent-Child Relationship
The only basis asserted in the modification petition to support the requirement of a material and substantial change was A.A.'s application and admission to St. Andrew's. Having gained her daughter's admission to St. Andrew's Episcopal School, Michels filed a modification petition seeking a departure from the negotiated agreement concerning her daughter's education contained in the agreed divorce degree. Zeifman opposed the modification, seeking to continue their daughter's education at Bryker Woods, the public school to which the parties had agreed and set forth in the divorce decree. Although the petition references both children, the parties agree that the modification at issue and the court's order relate only to A.A.
(2) The Evidence
The testimony showed that the dispute that led to the filing of the petition for modification arose when Michels applied for and obtained A.A.'s admittance to St. Andrew's Episcopal School. As a Jew raising Jewish children, Zeifman opposed the modification because he did not want the child to attend a Christian school and she was thriving at the public school the parties had agreed to in the divorce decree.
The undisputed evidence showed that A.A. progressed successfully through kindergarten, first grade and the beginning of second grade at Bryker Woods prior to trial. In April 2004, Zeifman and Michels discussed enrolling A.A. at a private school. Zeifman proposed that A.A. attend the Austin Jewish Academy, but Michels disagreed and rejected the proposal. Michels did not believe the academy had "the academic strengths that I would require for her to be there." Without notifying Zeifman, Michels contacted and applied to St. Andrew's for admission, had A.A. tested, and asked A.A.'s current first-grade teacher for a recommendation. After A.A. was placed on a waiting list on May 3 subject to available openings at the school, Michels notified Zeifman. A.A. was accepted for admission on June 28. On June 30, Michels executed the school's enrollment contract and forwarded a tuition check. She informed the school, "I am working with her father to get his agreement regarding her attendance. Otherwise her enrollment will be subject to modification of our divorce decree."
Zeifman did not agree to enroll A.A. at St. Andrew's, insisting that the parties follow the agreement to send her to Bryker Woods, the public school to which the parties had agreed, and at which the parties agreed she was doing well. Zeifman testified,
My daughter is thriving at the community public school across the street from my home. And I would only agree to enroll her in something that she had a demonstrable need for, like [G.L.] has a need for a specialized school, or that Sheryl [Michels] and I agreed was a place that was going to better fit our idea of how we want to raise our kids.
As long as A.A. was thriving at Bryker Woods, and there was no demonstrable need to send her to a specialized private school, Zeifman would not agree to send A.A. to a private school other than the Austin Jewish Academy, a school with the religious affiliation in which the parties agreed A.A. was being raised.
To support her petition that a material and substantial change had occurred since the rendition of the original divorce decree, Michels offered evidence that in the years since the time of the parties' divorce, A.A. had grown "from an infant to a beautiful, smart, lovely 7-year old girl." She urged that A.A.'s academic abilities and opportunities had surpassed the expectations the parents had at the time of the divorce decree. In support of the modification order, Michels testified,
Q: At the time, did you have any idea that there would be an opportunity for her to attend St. Andrew's school?
A: No I did not.
. . . .
Q: What other--now other than the mere passage of physical time, have there been other changes that have occurred--significant changes that have occurred in either your life or in Mr. Zeifman's life?
A: I believe there have been significant changes.
Q: And could you tell the Court what those are.
A: In my life or--
Q: Well, let's start with your life.
A: Okay. Well, since the--since September of '97, that's been quite a bit of time, I think I've grown in a lot of ways. My children have grown up, and I've certainly learned from them. I've grown as a parent. Hopefully, as a big sister, as a daughter, as a friend, as a person, as a physician, as all of those things in these years of life experience. I think I'm happier and hopefully smarter.
Q: How has your daughter changed?
A: She's grown up from an infant to a beautiful, smart, lovely seven-year-old girl. She's proved herself to be social, a gymnast, a cheerleader, smart in school. Academically, she's very, very bright. She's basically grown up from an infant to a young child with extraordinary potential.
Q: And has she--at the time that she was 14 months old and you entered into this agreed divorce decree, did you have any idea for sure how she was going to turn out?
A: No.
. . . .
Q: And did you come to a--what about your daughter, did you have idea how smart she was going to be?
A: No. I had hoped, but I didn't know.
Michels acknowledged that her daughter was doing very well at Bryker Woods.
Much of the testimony adduced by Michels centered on St. Andrew's reputation as a high achieving school and the desirability of a child remaining in a single school through high school as she would be able to do at St. Andrew's. Michels's partner in her medical group testified that he served on the St. Andrew's board of trustees, that his children attended St. Andrew's, that the school sets a high academic standard and provides a diverse culture respectful of various religions, and that he is familiar with A.A. but has not "seen [her] in years, but I know who she is."
Education consultant Christopher Kocerik testified that he was first contacted by Michels on July 8, 2004. Michels advised him that "she had identified a school that she thought was best, and wanted me to concur if--or give my opinion on as to whether or not that was the best school for her." Michels told Kocerik that a "custody" matter was involved and that he might be called upon to testify. Kocerik did not investigate other schools or make a recommendation regarding schools. He testified, "She asked us to look at her daughter's needs, and look at the option of St. Andrew's." Kocerik concluded that St. Andrew's would be a "good match" and a "good opportunity" for A.A.
The lawyer who represented Michels in her divorce also testified on her behalf. She had observed A.A. since the divorce and testified that "she's grown up, she's become a lot more articulate and it is striking how bright she is." She also testified to the benefits of private school over public school. Lucy Nazro, the head of St. Andrew's, testified that, based upon A.A.'s test scores, she would do well at St. Andrew's. She explained that the school offers continuity through high school to its students as well as other opportunities not offered by the public schools such as public service opportunities, foreign languages, and ethics courses. Dr. Nazro testified that she had a telephone conversation with Zeifman in which they discussed the academics of the school and he inquired into the religious life of the school, particularly the practice of daily chapel.
Zeifman testified that he lives across the street from Bryker Woods and has remarried. Because he lives so close, he drops by the school once or twice a week and "bump[s] into the principal fairly often." He testified to his son's learning disability and that he and Michels agreed to deviate from the agreement to meet their son's special educational needs. Zeifman testified that A.A.'s academic and social needs were being met at Bryker Woods and that she was thriving there. When Michels rejected his suggestion that A.A. attend the Austin Jewish Academy and applied instead to St. Andrew's without his knowledge or consent, Zeifman insisted upon following the decree and having A.A. continue her education at Bryker Woods. He testified that the academics of the schools was never an issue: "You know, we're in a very good public school, and my daughter, as evidenced by all the results that have been admitted, has been pretty well served by whatever we're doing."
Casey Herrin, A.A.'s first-grade teacher testified that she had taught first grade at Bryker Woods for five years and that A.A. had been in her class. Herrin described A.A. as a "very pleasant, very bright" "typical first grader." She was among the top students in the class but had not been accepted for the gifted and talented program. Herrin testified that both parents were involved and concerned about their daughter's academic progress: "They both did make sure to frequently check with me to make sure she was progressing as she should be." A.A.'s stepmother was also involved at the school.
At Michels's request, Herrin had completed the recommendation form that accompanied A.A.'s application for admission to St. Andrew's. At the time of its submission, Herrin learned that Zeifman was not aware that Michels had asked her to fill out the recommendation. She knew that Michels was interested in sending her daughter to St. Andrew's: "And I felt like, obviously, this was something that her parents were going to decide, and that it was my obligation as her former teacher to go ahead and fill this out for her." Over the summer, probably in June, Michels asked for her assistance in helping the parents decide which school A.A. should attend. Herrin testified,
I told her that I'd have to think about it and get back to her. And when I eventually got back to her, I informed her that I thought it would be best if [she] stayed at Bryker Woods. . . . I felt like at one point both parents, obviously, agreed that Bryker Woods was a good school for [her]. And so I thought best just leave it alone. . . . I didn't feel like there was any strong need that wasn't being met at Bryker Woods.
Herrin testified that she told Michels that "I thought it would be best if A.A. stayed at Bryker Woods." They had no further conversations. In response to cross examination, Herrin testified that Zeifman expressed concerns to her that he thought Bryker Woods was a good school for his daughter and he had some concerns that St. Andrew's was a religiously affiliated school.
A Bryker Woods counselor and the principal also testified to the suitability of the school for A.A.'s needs and its standing in the academic community. The counselor testified that A.A.'s needs were "absolutely" met at the school and that her current second grade teacher was "one of the most highly professional teachers I've ever worked with." The principal testified that the school is a "wonderful little school" that is unique because it is a school of choice for half of its 378 enrolled students. The school was generally rated "exemplary" in its academic ranking by the Texas Educational Association but had dropped to "recognized" in the 2003/2004 year. He attributed the change to the addition of the science portion of the test. All of the other test scores had been in the exemplary range over the cut-off score of ninety percent. He testified that the school is a well-regarded school with extensive parental involvement and small class sizes. He knows most of the students by name and is familiar with A.A. He testified that she "seems like a great child" who gets along well with other students. He testified,
I feel that [she] is doing a fine job, you know, in second grade. I think that she has a wonderful classroom teacher, very caring classroom teacher, and a very experienced teacher. That's the other good thing that I will like to share also about Bryker Woods is we have very little teacher turnover. The teachers who have been there have been there for many, many years. . . . [I]t's a wonderful environment. It's a small school . . . a great place.
At the conclusion of the trial, the trial judge told the parties that she was "puzzled to have such an issue brought before this Court" and that she had "struggled listening to the testimony" that "veered off course in some ways" from the issues, stating,
I became extremely frustrated with the concept that I'm supposed to decide that St. Andrew's is better than the AISD school system for your child. Even if I accept that St. Andrew's is a premier school and better than AISD, is that really the issue? Because it really isn't about whether Harvard is better than UT. It really is about where the child will actually flourish. And I'm not sure I understand or know that answer. And I struggled all last evening with what my role was today. Am I supposed to tell you your child will be more successful at St. Andrew's, or your child will be more successful in the AISD School District.
Legal Sufficiency of the Evidence
The issue is whether the trial court's determination that there was a material and substantial change in circumstances was an abuse of discretion. Based on the evidence, we conclude that it was.
A court's determination as to whether a material and substantial change of circumstances has occurred is not guided by rigid rules and is fact specific. In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.--Fort Worth 2003, no pet.). Evidence of a parent's subsequent marriage to another can constitute a relevant, material change of circumstances after rendition of the decree sought to be modified. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.--Waco 2000, pet. denied).
Likewise, change in the age of a child may constitute a material change. In re Davis, 30 S.W.3d 609, 615 (Tex. App.--Texarkana 2000, no pet.); see also Horne v. Hardwell, 533 S.W.2d 450, 452 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.). Increase in age alone is not a changed circumstance to justify modification unless changed needs are shown. E.g., Voros v. Turnage, 856 S.W.2d 759, 762 (Tex. App.--Houston [1st Dist.] 1993, writ denied); Randle v. Randle, 700 S.W.2d 314, 316-17 (Tex. App.--Houston [1st Dist.] 1985, no writ).
In any event, the cases finding a material change based on a change in the age of a child are distinguishable from this case. None of the cases in which a court found the change in the age of a child to support a modification included a negotiated agreement that specifically contemplated the change and provided a dispute resolution mechanism as in this case. To allow aging alone to constitute a material and substantial change in the face of the agreement would render both the agreement and the language of the statute meaningless.
Although courts have allowed changes to be proved in a variety of ways, they have consistently required that a change be proved and that it be shown to be substantial and material. See, e.g., Agraz, 143 S.W.3d at 554 (evidence that father not participating in raising children insufficient to show prior conditions or material change); London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (court compared financial circumstances of the affected parties at time of original order with circumstances at time modification sought finding changed circumstances); Echols, 85 S.W.3d at 479 (court found changed circumstances included aging of child, remarriages and additional children in both families); Considine, 726 S.W.2d at 255 (re-marriage by one party and relocation to Canada held insufficient). In Considine, this Court stated that "to prove that a material change of circumstances has occurred, the movant must demonstrate what conditions existed at the time of the entry of the prior order. Once such conditions have been established, the movant must show what material changes have occurred in the intervening period." 726 S.W.2d at 255. (1)
In that case, we concluded that a parent's remarriage and change of residence to Canada did not constitute a material and substantial change as to support the modification of conservatorship. Id.
Zeifman contends that there was no showing that the circumstances with respect to A.A.'s education have materially and substantially changed. We agree.
A.A. was an infant when the parties divorced and in second grade when the case was tried in October 2004. The change alleged in the petition was her application and admission to St. Andrew's. At trial, in response to specific questioning as to the change in circumstances, Michels testified only that the change was that A.A. had grown from an infant into a "beautiful, smart, lovely" seven-year-old and that her academic ability had surpassed Michels's expectations at the time of the divorce. At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. When a disagreement arose in the instance of their son's special educational needs, the parties resolved the change pursuant to the terms of the agreement.
The evidence showed that after the parties divorced they continued to raise A.A. in the Jewish faith and they continue to adhere to that faith. A.A. attends religious school at Congregation Agudas Achim and pursues other activities and camps sponsored by the Jewish Community Center. The parties agree she is being raised Jewish and is part of the Jewish community, as she has been since she was born. The modification sought specifically to allow Michels to send A.A. to St. Andrew's would mark a significant change in the child's secular and religious education. That Zeifman objected to A.A. attending a religious private school based upon a different faith is consistent with the parties' intent to specify these educational decisions in their agreement to anticipate and avoid such conflicts.
The evidence showed that A.A. is a bright and academically talented girl who is thriving at Bryker Woods, a school located across the street from her father's home. The undisputed evidence also showed that she did very well academically and socially at Bryker Woods, and that her academic and social needs were being met. The only evidence that she might do better at St. Andrew's or that it might be more "suitable" is speculative and, in any event, not sufficient to constitute a material and substantial change.
We do not agree that this evidence shows a change in circumstances as contemplated by section 156.101. See Tex. Fam. Code Ann. § 156.101. To accept Michels's interpretation of the requirement of a "material and substantial" change would render its language meaningless if age alone were sufficient in light of the parties' prior agreement. Although there may be a variety of methods of showing material and substantial change, the requirement is that a change must be shown. We conclude Michels's evidence is no evidence of a change in conditions. Even assuming that the St. Andrew's application and admission or A.A.'s change of age constituted changes not contemplated by the agreement, there was no evidence that either change was material or substantial.
Moreover, as in all suits regarding the conservatorship of a child, the court's primary consideration "shall always be the best interest of the child." Tex. Fam. Code Ann. § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). A court may use the nonexhaustive list of Holley factors to determine the child's best interest. Holley v. Adams, 554 S.W.2d 367, 371-71 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child, the stability of the home, the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id. at 371-72. In the context of custody modification, other factors to be considered include the child's need for stability and the need to prevent constant litigation in child-custody cases. V.L.K., 24 S.W.3d at 343.
The policy behind the requirement of a material and substantial change is to prevent constant relitigation with respect to children. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.--Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex. Civ. App.--Dallas 1978, writ ref'd n.r.e.) (requirement of material and substantial change predicated upon doctrine of res judicata as to best interest of child at time of original decree awarding conservatorship). When establishing the means to modify custody orders, the legislature established a system that attempts to create stability in the conservatorship. See Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Bates, 81 S.W.3d at 423. The requirement of this showing "serves a valid purpose of significantly limiting the trial judge's discretion and prevents the modification statute from being unconstitutionally broad." M.N.G., 113 S.W.3d at 34.
Although the trial court heard contradictory testimony about events that had occurred between the parties, the undisputed evidence established that A.A. was thriving at Bryker Woods under the educational plan agreed to in the divorce decree. Much of the testimony focused on the relative academic standing of the two schools as well as the advantages of a private school over a public school. Michels acknowledged that A.A. was doing very well at Bryker Woods and that she would not be harmed by staying at Bryker Woods. A.A.'s teacher, who provided the recommendation for her admission to St. Andrew's, testified that she believed that it would be in A.A.'s best interest to stay at Bryker Woods. There was no expert testimony or other evidence that the change in schools would be in A.A.'s best interest. Because A.A. was making good grades and thriving at Bryker Woods, and there was no evidence to show that it was in her best interest to change schools, a review of the record does not establish that the evidence is sufficient to support the trial court's findings.
At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.
We would be remiss if we did not observe that, with the passage of the Texas Alternative Dispute Resolution Act, it became public policy to "encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures." Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2005). It would undermine the efforts of mediated settlement agreements for us to allow a modification on circumstances that were clearly contemplated by the parties at the time of the rendition of the original divorce decree. We also observe, however, that the existence of a mediated settlement agreement does not alter the requirements of section 156.101; we hold only that, on the record before us, the petitioner failed to carry her burden of demonstrating a material and substantial change of circumstances and that the modification would be in the best interest of the child. See Tex. Fam. Code Ann. § 156.101. (2)
CONCLUSION
We conclude that the evidence is legally insufficient to support the trial court's finding that the circumstances of the child, as specifically alleged in the petition, or of either conservator have materially and substantially changed. We hold that, based on the record before us, the trial court abused its discretion in ordering modification. We sustain appellant's challenge to the legal sufficiency of the modification. We reverse the trial court's order to modify and render judgment in favor of Zeifman.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Pemberton: Opinion by Justice Patterson;
Concurring Opinion by Justice Pemberton
Reversed and Rendered
Filed: August 4, 2006
1. For the trial court to determine if a material and substantial change has occurred, most courts require a comparison between the original circumstances of the child and the affected parties at the time the existing order was entered with their circumstances at the time the modification is sought. E.g., London v. London, 94 S.W.3d 139, 144 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Thus, the record must contain both historical and current evidence of the relevant circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a change has occurred. Id. at 144-45.
2. Because of our disposition of the legal sufficiency issue, we need not address the remaining issues regarding factual sufficiency.
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