Opinion
No. 05-10-01472-CV
08-02-2012
IN THE INTEREST OF C.R.G., A CHILD
AFFIRM as modified in part, REVERSE and REMAND in part; Opinion issued August 2, 2012
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-52074-94
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
This is an appeal from an order modifying the parent-child relationship and awarding attorneys' fees. The trial judge modified an existing standard possession order to allow the minor child C.R.G., who was then sixteen years old, to refuse to permit her father, the noncustodial parent, to exercise his periods of possession. Father appealed. We modify the judgment to delete the provision authorizing C.R.G. to deny Father his possession rights. We also reverse the award of attorneys' fees and remand for further proceedings on that issue.
I. Background
Mother and Father divorced in 1995. At that time, their daughter, C.R.G., was only a few months old. The trial judge appointed both parents as joint managing conservators, and Mother was given primary custody and control of C.R.G. The agreed divorce decree set forth the parents' rights of possession that would apply automatically once C.R.G. turned three years old. Those provisions generally tracked the terms of the statutory standard possession order.
In April 2010, when C.R.G. was 15 years old, Mother filed a Petition in Suit to Modify Parent-Child Relationship. Among other things, Mother asked the trial judge to modify the existing possession arrangement by adding a provision that Father would have the right to possession of C.R.G. during the specified times only if such possession was “agreeable” to C.R.G. In support of her request for modification, Mother pleaded generally that “[t]he circumstances of the child, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified.” Father filed an answer, and he later filed a trial brief in opposition to Mother's request for modification. In May 2010, the trial judge signed temporary orders that made Father's times of possession contingent on C.R.G.'s agreement.
The trial judge heard Mother's petition in August 2010. He heard testimony from both Mother and Father, and he interviewed C.R.G. in chambers. The court reporter did not record the in-chambers interview of C.R.G. On the date of the hearing, Father filed a written request that the judge state in his order the specific reasons for all deviations from the standard possession order.
On October 22, 2010, the trial judge signed the order now being appealed, entitled Order in Suit to Modify Parent-Child Relationship. The order contained the terms of the standard possession order but then modified Father's rights with the following provision:
IT IS ORDERED AND DECREED that, upon the minor child's reaching the age of fifteen (15) years, all of the above set forth visitation rights by [Father] shall cease as mandatory visitation rights between [Father] and the child . . . and in lieu thereof, [Father] shall have possession of the child only at any such times as are set forth above as are agreeable to the child and [Father].The trial judge also awarded Mother attorneys' fees in the amount of $5,000. Father filed a request for findings of fact and conclusions of law, and the trial judge subsequently signed a set of findings and conclusions. The trial judge found that the existing possession order had become “unworkable” and that above-quoted modification was “in the best interest of the child,” but he did not elaborate on the factual basis for these findings.
Father appealed. Mother has not filed an appellate brief or otherwise appeared in this appeal. In his first issue on appeal, Father challenges the trial judge's failure to state his specific reasons for departing from the standard possession order, as required by section 153.258 of the family code. We abated the appeal and directed the trial judge to make supplemental findings of fact and conclusions of law that included his specific reasons for varying from the standard possession order. The judge complied and transmitted his supplemental findings and conclusions to this Court. The judge found that he interviewed C.R.G. in chambers and then made the following findings:
4. The child related to the trial judge that now that she was a teenager, she had many social and school activities which the standard possession order interfered with. The child further related that her father's insistence on compliance with the standard possession order was detrimental to her participation in social and school activities and therefore, she would like to see her father at times when it was mutually agreeable to the two of them.In his last supplemental conclusion of law, the judge recited, “[T]he Court concludes that its possession order is in the child's best interest and that the standard possession order would not be in her best interest.” The judge neither found nor concluded that a material and substantial change in the circumstances of C.R.G., a parent, or another affected person had taken place.
5.The child informed the trial judge that she did not want to be subject to a standard possession order with her father, but instead preferred that she be allowed to visit her father at times when it was mutually agreeable to the two of them.
6. The Court finds that the child is truthful and is not being influenced by her mother in requesting that she be allowed to see her father at mutually agreeable times.
7.The Court finds that it is in the best interest of [C.R.G.] that the standard possession order not be imposed under the facts of this case.
8.The Court finds that the child's father should have unlimited possession of the child, provided that the child agrees to the periods requested by her father.
Father's first issue on appeal is now moot. See Moore v. First Fin. Resolution Enters., Inc., 277 S.W.3d 510, 514 n.1 (Tex. App.-Dallas 2009, no pet.). We proceed to consider Father's remaining appellate issues.
II. Analysis
Father raises seven issues on appeal. As stated above, his first issue is moot. In issues two through six, Father challenges the part of the modification order giving C.R.G. the power to veto his exercise of his rights of possession. In his seventh issue, Father complains about the award of attorneys' fees.
A.Whether the judge abused his discretion by modifying Father's right of possession
Because it is dispositive, we proceed directly to Father's fourth issue on appeal. In his fourth issue, Father argues that the modification was an abuse of discretion because Mother failed to show a material and substantial change in circumstances.
1.Standard and scope of review
We review a trial judge's decision on a motion to modify under an abuse-of-discretion standard. In re B.M., 228 S.W.3d 462, 464 (Tex. App.-Dallas 2007, no pet.); Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.-Dallas 1999, no pet.). A trial judge abuses his discretion if he acts in an arbitrary and unreasonable manner, or if he acts without reference to any guiding principles. In re B.M., 228 S.W.3d at 464. Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error, but they are relevant factors in assessing whether an abuse of discretion has occurred. Seidel, 10 S.W.3d at 368. We note that the reporter's record does not include C.R.G.'s in-chambers interview with the trial judge. In fact, the reporter's record includes the court reporter's notation: “Pause in proceedings for court to interview child in chambers. Said interview was not taken down by the Reporter.” Ordinarily, issues that depend on the state of the evidence cannot be reviewed without a complete record, including the reporter's record. Morris v. Liberty Mut. Fire Ins. Co., No. 05-10-01125-CV, 2012 WL 759026, at *1 (Tex. App.-Dallas Mar. 7, 2012, pet. filed) (mem. op.); see also In re Lau, 89 S.W.3d 757, 760-61 (Tex. App.-Houston [1st Dist.] 2002, orig. proceeding).
Even without a reporter's record, however, we must review the correctness of the legal conclusions drawn from the facts actually found by the trial judge. Ives v. Watson, 521 S.W.2d 930, 932 (Tex. Civ. App.-Beaumont 1975, writ ref'd n.r.e.); see also Harry Hines Med. Ctr., Ltd. v. Wilson, 656 S.W.2d 598, 601-03 (Tex. App.-Dallas 1983, no writ) (reversing take-nothing judgment and rendering judgment for plaintiff because trial judge's findings of fact compelled such a judgment). Thus, we must consider whether the trial judge's findings support the modification order rendered. Specifically, we consider whether the findings support the essential element of a substantial and material change of conditions.
2.Applicable law
To obtain a modification of the existing possession order, Mother bore the burden of proving both that the modification would be in the best interest of C.R.G. and that one of the elements of section 156.101(a) was met. See In re T.W.E., 217 S.W.3d 557, 559 (Tex. App.-San Antonio 2006, no pet.); Agraz v. Carsley, 143 S.W.3d 547, 552-53 (Tex. App.-Dallas 2004, no pet.). The only element of section 156.101(a) that Mother pleaded was that the circumstances of the child, a conservator, or other party affected by the order to be modified had materially and substantially changed since that order was rendered. See Tex. Fam. Code Ann. §156.101(a)(1) (West Supp. 2012). With respect to the requirements of section 156.101(a)(1), there are no rigid or definite guidelines governing the determination of whether a material and substantial change of circumstances has occurred. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Some examples of material changes include (1) remarriage by a party, (2) poisoning of the child's mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or stepparent, and (5) a parent's becoming an improper person to exercise custody. Id. at 428-29. To prove that the necessary change has occurred, the petitioner must demonstrate what conditions existed at the time the prior order was rendered and what material conditions have changed in the intervening period. Agraz, 143 S.W.3d at 554.
3.Application of the law to the facts
We hold that the trial judge abused his discretion by modifying the child-custody order that was in place because his findings do not establish that a material and substantial change in the circumstances of the child, a conservator, or other affected party had taken place. A party seeking a modification of an order concerning possession of a child must prove one of the elements found in section 156.101(a), see Tex. Fam. Code Ann. §156.101(a), and Mother pleaded only the element of material and substantial change in circumstances. The trial judge's findings that concern changed circumstances do not rise to the level of a material and substantial change of conditions. His finding in his original findings of fact that “[t]he possession and access of the child by [Father] has become unworkable” suggests that circumstances have changed in some unspecified respect, but it does not amount to a finding that C.R.G., her parents, or another affected person had experienced a material and substantial change in circumstances. Although fifteen years had passed since the rendition of the prior order, “[i]ncrease in age alone is not a changed circumstance to justify modification unless changed needs are shown.” Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.-Austin 2006, pet. denied). The trial judge made no findings as to C.R.G.'s needs; he found only that she desired the right to deny Father his times of possession because the schedule in the standard possession order interfered with her school and social activities. We hold that the judge abused his discretion and sustain Father's fourth issue on appeal.
Because we are sustaining Father's fourth issue on appeal, we need not consider his second, third, fifth, and sixth issues on appeal.
B.Attorneys' fees
In his seventh issue on appeal, Father attacks the trial judge's award of attorneys' fees to Mother in the amount of $5,000. He argues that the evidence is insufficient to support the fees on the basis stated in the judgment, and that the fees cannot be supported based on the modification of custody because that modification was itself erroneous. We agree with Father's position for the reasons that follow.
Mother sought two principal modifications of the existing order in her petition to modify the parent-child relationship. She sought to increase the amount of child support paid by Father, and she sought to make Father's visitation with C.R.G. contingent on C.R.G.'s agreement. She also prayed for attorneys' fees. The parties reached an agreement on the child-support issue, which the judge incorporated into his order, and after a hearing the trial judge granted Mother's request for the custody modification. The trial judge also awarded Mother $5,000 in attorneys' fees. The order contained the following explanation of the award:
The Court finds that from the scope of evidence presented in this case, the necessity of a temporary hearing and trial resulting from [Father's] failure to cooperate and necessity to obtain formal discovery to obtain wage documents required to be produced under Texas Family Code §154.063, that good cause exists to award [Mother] attorney fees and expenses in this cause.The trial judge's subsequent findings of fact and conclusions of law do not mention the fee award. The trial court has discretion to award attorneys' fees in a suit affecting the parent-child relationship. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996); see also Tex. Fam. Code Ann. §106.002(a) (West 2008). We review an award of fees under section 106.002 for abuse of discretion. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.).
The trial judge's order reflects that three factors influenced the judge in making the award of attorneys' fees: (1) the scope of evidence presented in the case, (2) the necessity of a temporary hearing and trial caused by Father's failure to cooperate, and (3) the necessity of formal discovery for Mother to obtain wage documents. The phrase “scope of evidence presented in this case” is broad enough to encompass the entire case-the litigation of the child-custody modification sought by Mother as well as the child-support issue. Thus, the trial judge based the fee award in part on the litigation of the child-custody issue. We have held that the child-custody modification rendered by the trial judge was an abuse of discretion. Because we are reversing part of the trial judge's stated basis for awarding attorneys' fees, we also reverse the award of fees and remand for further proceedings on that issue. See Bruni, 924 S.W.2d at 368-69 (reversing award of attorneys' fees because supreme court was reversing the trial judge's child-support decision on the merits).
III. Disposition
For the foregoing reasons, we modify the trial judge's Order in Suit to Modify Parent-Child Relationship by deleting the provision stating that Father's times of possession of C.R.G. are not mandatory and that Father's times of possession of C.R.G. are limited to times agreeable to both Father and C.R.G. We reverse the portion of the order awarding Mother $5,000 in attorneys' fees and remand the case for further proceedings as to her claim for attorneys' fees. In all other respects, we affirm the order as modified.
KERRY P. FITZGERALD
JUSTICE
101472F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
In the Interest of C.R.G. a Child
No. 05-10-01472-CV
Appeal from the 366th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 366- 52074-94).
Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.
Based on the Court's opinion of this date, we MODIFY the trial court's October 22, 2010 Order in Suit to Modify Parent-Child Relationship as follows:
We DELETE the following provision on page 10 of the Order: “ Visitation After The Child Turns 15 Years Of Age . IT IS ORDERED AND DECREED that, upon the minor child's reaching the age of fifteen (15) years, all of the above set forth visitation rights by JOSEPH GRIFFIN shall cease as mandatory visitation rights between JOSEPH GRIFFIN and the child over the age of fifteen (15) years, and in lieu thereof, JOSEPH GRIFFIN shall have possession of the child only at any such times as are set forth above as are agreeable to the child and JOSEPH GRIFFIN.”
We REVERSE the award of attorneys' fees to appellee Holly Butler and REMAND the case for further proceedings as to her claim for attorneys' fees only. In all other respects, we AFFIRM the October 22, 2010 Order in Suit to Modify Parent-Child Relationship as modified.
It is ORDERED that appellant Joseph Griffin recover his costs of this appeal from appellee Holly Butler.
Judgment entered August 2, 2012.
KERRY P. FITZGERALD
JUSTICE