Opinion
No. 05-04-01690-CV
Opinion Filed June 27, 2005.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 99-1492.
Affirmed as Modified.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
This is an appeal from a suit to modify the parent-child relationship. In two issues, Leslie Worthington Saunders contends the trial court erred in modifying the primary custody of the child because John Hartsfield failed to meet his burden of proof for modification of a prior order, and the trial court abused its discretion because the evidence was insufficient. For the reasons stated below, we affirm.
I. Background
Saunders gave birth to J.T.H. on July 25, 1999. Saunders and Hartsfield were not married. In September 1999, Saunders filed a petition seeking a paternity test, child support, and asking that the child's maternal grandmother be named temporary managing conservator. The trial court issued temporary orders granting the relief sought. On February 21, 2000, the trial court issued final orders that named Saunders and Hartsfield as joint managing conservators of the child, ordered primary custody of the child to Saunders and child support from Hartsfield, and ordered the child's last name changed to Hartsfield.
Three years later, Hartsfield filed a petition seeking primary custody of the child. By this time, both Hartsfield and Saunders were married to other individuals and had additional children with their new spouses. On July 22, 2003, the trial court held a hearing on Hartsfield's petition, after which it issued temporary orders that appointed an investigator to conduct a social study and continued primary custody of the child with Saunders. The social study, which recommended that the child be placed with Hartsfield, was filed on March 22, 2004. See Tex. Fam. Code Ann. § 107.051 (Vernon 2002).
On March 29, 2004, the trial court held another hearing, at the end of which the judge announced he would take the case under advisement. On August 27, 2004, the trial court issued a final order that awarded primary custody of the child to Hartsfield. Saunders filed a motion for new trial, alleging the trial court's ruling was an abuse of discretion because there was no evidence and/or insufficient evidence of a material change in circumstances. Saunders also filed a request for findings of fact and conclusions of law. The trial court did not file any findings of fact and conclusions of law. On November 16, 2004, Saunders filed a notice of past-due findings of fact and conclusions of law and second request for findings of fact and conclusions of law. The trial court rendered no findings of fact and conclusions of law. A timely notice of appeal was filed.
II. Discussion
Saunders argues that the trial court erred in granting modification of primary custody because Hartsfield failed to meet his burden of proof for the modification of a prior order. She contends that Hartsfield did not present any evidence of the conditions that existed under the prior order or that those conditions had materially changed. Saunders asserts that Hartsfield merely stated he could do a better job of meeting the child's needs, he presented evidence that Saunders had met the medical and educational needs of the child, and he stated that Saunders's home was appropriate for the child. Also, Saunders argues that the trial court's order awarding primary custody of the child to Hartsfield is against the great weight and preponderance of the evidence and is manifestly unjust. Finally, Saunders asks this court to reverse the trial court's order and reinstate her as joint managing conservator with the primary right to determine the residence and domicile of the child.
Hartsfield responds that he presented more than sufficient evidence showing the conditions that had existed under the prior order had materially and substantially changed. He argues that access to the child had been curtailed, discouraged, and at times denied, and that while Saunders had primary custody of the child, the child sustained a serious tonsil condition and speech impediment. Finally, Hartsfield asks this court to affirm the trial court's order.
III. Standard of Review
Most of the appealable issues in a family law case, including conservatorship, are evaluated against an abuse of discretion standard. Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). In reviewing a trial court's exercise of discretion, legal and factual sufficiency of the evidence are not independent grounds of error, but are merely factors to be assessed in determining if the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.-Houston [14th Dist.] 1996, no writ.). An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence or where some evidence of a substantial and probative character exists to support the trial court's judgment. Id.
A court may modify an order providing for the terms and conditions of conservatorship if the modification would be in the best interest of the child and 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 (Vernon Supp. 2004-05). The question of whether a material and substantial change of circumstances has occurred lies within the sound discretion of the trial court. Maxiner v. Maxiner, 641 S.W.2d 374, 376 (Tex.App.-Dallas 1982, no writ).
IV. Evidence Presented
Cim O'Hanlon, the court-appointed investigator, conducted a social study by interviewing Saunders and her spouse, Hartsfield and his spouse, the maternal grandmother, the child, and the child's speech therapist. O'Hanlon's written report was admitted into evidence without objection. The report stated that Saunders's home environment was appropriate for the child; the child had a good relationship with Saunders, Hartsfield, and both step-parents; and that Saunders met the emotional and educational needs of the child. The child was seeing a speech therapist for moderate speech delay and moderate articulation disorder. A major concern cited in the report was the inability of the child's parents to communicate. Saunders told O'Hanlon that she had consistently experienced problems and confrontations with Hartsfield regarding court-ordered visitation. Hartsfield told O'Hanlon that the visitation exchange had been difficult due to Saunders's aggressive attitude and unwillingness to communicate with him regarding issues concerning the child's care. The report recommended that, in the best interest of the child, the child should be placed in the care and custody of Hartsfield, that Saunders should have standard visitation, and that all visitation exchanges should take place at a public facility.
O'Hanlon testified she believed Hartsfield had a more structured home environment and promoted a healthy parent-child relationship, but Saunders seemed more focused on her negative relationship with Hartsfield rather than on the child's relationship with Hartsfield. According to O'Hanlon, Saunders chose to drop one of the speech therapy classes and would only allow the child to attend the sessions on Hartsfield's visitation day. She believed this showed that Saunders was more focused on hurting Hartsfield than on the child's best interests. O'Hanlon admitted that the speech therapist had said Saunders dropped the class because Saunders could not afford to pay for it. Also, O'Hanlon knew that because of arrangements made by Saunders, the child was seeing a speech therapist at the child's school.
After becoming aware that the child had problems with his tonsils, O'Hanlon questioned Saunders about the child's tonsils. Saunders stated she could not afford to take off work to take the child to a specialist.
A taped telephone conversation between Hartsfield and Saunders was provided to O'Hanlon. She said the tape began where Hartsfield called the child, asked the child how he was doing, and asked if he had gone to school that day. Then, Saunders took the telephone from the child and began berating Hartsfield. The child was heard in the background saying, "I want to talk to Daddy."
O'Hanlon testified that Saunders, who was expecting her second child, had stated she would have no further contact with Hartsfield because she needed to concentrate on her pregnancy. It was O'Hanlon's belief that Saunders escalated tensions at the drop-offs for Hartsfield's visitation and Saunders's attitude was "extremely combative." O'Hanlon believed the child's best interest would be served by placing the child with Hartsfield.
Tiffany Pickard, a private speech and language therapist, testified she provided speech therapy to the child twice a week initially, then, later, once weekly. Pickard testified she also coordinated her therapy with whatever therapy the child received in his pre-kindergarten class. She believed Saunders had been very cooperative in seeing that the child had help with his delayed speech issues. It was Pickard's view that Hartsfield was more concerned about the child's well-being regarding the delayed speech issues, and Hartsfield's home was more "kid-friendly and child focused." Pickard testified she believed that placing the child with Hartsfield was in the child's best interest.
Hartsfield testified he filed for primary custody of the child because the child's speech issues were not addressed correctly and the child's medical needs had been neglected at times. According to Hartsfield, either Saunders did not fill prescriptions for the child often or she filled them one month after they were written. Hartsfield said he had visitation every Wednesday evening and every other weekend. He frequently picked up the child from the maternal grandmother's home, where Saunders lived with the child, because Saunders was not there much of the time. Hartsfield testified that whenever he tried to talk with Saunders about the child's medical issues and care, Saunders would start an argument. Hartsfield asked the trial court to follow O'Hanlon's recommendation. During cross-examination, Hartsfield testified that Saunders currently lives in a house with her new husband and that Saunders's current home environment was as good as or equal to Hartfield's home environment for the child. However, Hartsfield said that Saunders often failed to notify him about the child's school activities, he believed he would better communicate with Saunders about the child's school activities, and he would fill the child's prescriptions in a more timely manner than Saunders had done. According to Hartsfield, he needed to have full custody of the child because he was the more responsible parent and could make better decisions for the child.
Saunders denied she failed to fill prescriptions for the child or neglected the child's speech issues. She testified that Hartsfield would oftentimes offer to fill the prescriptions for the child, so she allowed Hartsfield to do so. She usually did everything concerning the child in a fifty-fifty manner with Hartsfield. According to Saunders, she always called Hartsfield about her plans to take the child to the doctor, and she notified Hartsfield about upcoming school activities that involved the child. She believed the reason O'Hanlon and Pickard recommended that the child be placed with Hartsfield was because Hartsfield and his wife put forth extra time and effort for the court case. Saunders testified that the child is doing well in pre-kindergarten, but that she usually gets a note about the child's behavior in school not being appropriate on Monday or Thursday, which are the days that follow Hartsfield's weekend and Wednesday visitation. According to Saunders, Hartsfield usually started the arguments at the visitation drop-offs, and she told O'Hanlon she would have no contact with Hartsfield because she was having difficulty with her pregnancy due to stress. Saunders denied that she was combative or hostile toward Hartsfield. Further, Saunders testified that she dropped one weekly session with the private speech therapist because she could not afford to pay for it, but she placed the child in a speech therapy program at the public school.
V. Analysis
Saunders relies on our opinion in Agraz v. Carnley, 143 S.W.3d 547 (Tex.App.-Dallas 2004, no pet.). In Agraz, Father was appointed joint managing conservator of the parties' three minor children with the right to determine their primary residence. The children lived with Father. Mother petitioned to modify the parent-child relationship, alleging the circumstances of the prior order had materially and substantially changed, that the children's present living environment may endanger their physical health or emotional development, and that the modification was in the best interest of the children. The only evidence offered at trial was Mother's testimony. The trial court granted Mother's petition and awarded Mother the exclusive right to establish the children's residence. No findings of fact or conclusions of law were requested or filed. Father, who did not file an answer or appear in court, filed a restricted appeal. We concluded that Mother's testimony did not provide evidence of the existing conditions at the time of the entry of the prior order and changes in those conditions. Accordingly, we concluded the testimony was no evidence of a material change in conditions, and the trial court's order to modify was reversed in its entirety. Agraz, 143 S.W.3d at 554.
Agraz is distinguishable from this case. In Agraz, the only evidence presented to the court was Mother's testimony that Father was not raising the children right, Father did not come home until after the children were in bed, and Father was not participating in the raising of the children. Here, the trial court received testimony from Saunders and her spouse, Hartsfield, the child's maternal grandmother, the child's private speech therapist, the child's school speech therapist, and the court-appointed investigator.
Hartsfield testified that at the time of the prior order, Saunders and the child lived with the maternal grandmother, and Hartsfield had visitation on Wednesday evenings and every other weekend. He said he frequently picked the child up from the grandmother because Saunders was not at home much of the time. Also, since the time of the prior order, the child was often sick and developed a serious tonsil condition. Hartsfield testified he often filled the child's prescriptions because Saunders neglected to fill them in a timely manner. Further, Hartsfield presented evidence that his visitations with the child were being affected by Saunders's "combative" attitude that necessitated Saunders transferring the child to Hartsfield in a public place. Hartsfield testified that Saunders would start an argument with him whenever he tried to talk with her about the child's medical issues and care.
O'Hanlon, the court-appointed investigator, and Pickard, the child's speech therapist, both testified they believed Saunders was doing a good job with the child's delayed speech issues. However, O'Hanlon testified she believed that Hartsfield was more focused on the child's best interests whereas Saunders was more focused on her negative relationship with Hartsfield. Both O'Hanlon and Pickard recommended that in the child's best interest, he should be placed with Hartsfield.
We conclude the trial court did not abuse its discretion in granting modification of primary custody of the child. See Tate, 55 S.W.3d at 5-6. Saunders's issues are resolved against her.
VI. Conclusion
The trial court's order in suit to modify parent-child relationship is affirmed.