Affirmed and Memorandum Opinion filed June 10, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00024-CV
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IN THE INTEREST OF J.H.W., A CHILD
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 99-11781
M E M O R A N D U M O P I N I O N
Bettye Ruth Johns-Adams appeals the trial court=s order modifying the parent-child relationship and appointing Joe H. Williams as joint managing conservator with the right to establish the residence of their child, J.H.W. In four issues, Johns-Adams claims the trial court abused its discretion in changing primary custody of the child from the mother to the father and contends there was no evidence or insufficient evidence to support the trial court=s findings that (1) the change of custody was in the best interest of the child; (2) the child=s then-present environment may have endangered the child=s physical health or significantly impaired the child=s emotional development; and (3) the circumstances of the child or of the parties had materially and substantially changed since the rendition of the last order to modify. In two additional issues, Johns-Adams contends the trial court erred in (1) ordering Johns-Adams to pay Williams for attorney=s fees incurred in connection with a post-judgment motion for contempt, and (2) denying a post-judgment motion to change venue. We have no jurisdiction to consider these last two post-judgment issues. We affirm the trial court=s order to modify.
Background
Johns-Adams and Williams are the natural parents of J.H.W. On April 21, 1997, the trial court entered a decree of paternity, which set forth orders affecting the parent-child relationship. The parties were named joint-managing conservators and Johns-Adams was named as the primary joint-managing conservator with the right to establish the residence of the child. The trial court entered an order to modify the parent-child relationship on October 9, 2000, which changed the place of exchange of the child, added certain parental notifications, and affirmed the previous provisions regarding conservatorship. On November 9, 2000, Williams filed a motion to modify, requesting that he be appointed sole-managing conservator. After a bench trial, the trial court signed an order modifying the parent-child relationship on April 26, 2002.[1] The trial court did not appoint Williams as sole-managing conservator, but did appoint him as the primary joint-managing conservator with the right to establish the residence of J.H.W. and ordered Johns-Adams to pay child support.[2]
The Order to Modify
In her first four issues, Johns-Adams claims the trial court abused its discretion in changing primary custody of the child from the mother to the father and contends there was no evidence or the evidence was insufficient to support the trial court=s findings with regard to what was in the best interest of the child, whether the child=s then-present environment may have endangered the child, and whether the circumstances of the child or of the parties had materially and substantially changed since the rendition of the last modification order.
A trial court=s order modifying conservatorship will not be disturbed on appeal unless the complaining party establishes a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re P.M.B., 2 S.W.3d 618, 621 (Tex. App.CHouston [14th Dist.] 1999, no pet.). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K‑Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). The fact that a trial judge may decide a matter within its discretionary authority differently than the reviewing court in similar circumstances does not establish an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The trial court does not abuse its discretion as long as some evidence of a substantive and probative nature exists to support the trial court=s decision. In re C.R.O., 96 S.W.3d 442, 447 (Tex. App.CAmarillo 2002, pet. denied).
Under the abuse-of-discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.CHouston [14th Dist.] 1996, no writ). We review a trial court=s findings for factual sufficiency by the same standards used in reviewing jury answers. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We consider all the evidence and set aside the findings only if they are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In determining a Ano‑evidence@ issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). Anything more than a scintilla of evidence is legally sufficient to support the finding. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int=l, Inc. v. Nat=l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002). In reviewing an Ainsufficiency@ issue, we are required to consider all of the evidence in the case and determine whether the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex.), cert. denied, 525 U.S. 1017 (1998).
A trial court may modify an order in a suit affecting the parent-child relationship if it would be in the best interest of the child and the circumstances of the child or of the parents have materially and substantially changed since the date of the last modification order. Tex. Fam.Code Ann. ' 156.101(1) (Vernon 2002).[3] If a modification is sought within a year of the last conservatorship order, the trial court must also determine that the child=s present environment may endanger the child=s physical health or significantly impair the child=s emotional development. Tex. Fam.Code Ann. ' 156.102(a). In this case, the trial court determined that the circumstances of the child or parents had materially and substantially changed since the date of the rendition of the prior order, J.H.W.=s then-present environment in the home with Johns-Adams may have endangered his physical health or significantly impaired his emotional development, and it was in the best interest of J.H.W. that the father be awarded the exclusive right to establish the child=s primary residence.
As a threshold issue, Johns-Adams contends there is no evidence or insufficient evidence to support a finding that the circumstances of the child or of the parties had materially and substantially changed between October 16, 2000, the date of the last conservatorship order, and November 9, 2000, the date Williams filed his motion to modify. Williams testified that between October 9, 2000, and the day he filed his motion to modify, he and Johns-Adams had a conversation about J.W.H.=s well being. Williams told Johns-Adams he was concerned about the child being in a day care rather than in a pre-school and discussed some of the child=s developmental delays. Johns-Adams told him that she made the educational decisions for the child. She also told him that if he filed for custody of their child, she would kill herself and the child. Williams said he took this threat seriously because Johns-Adams had been under psychological care. Moreover, Johns-Adams had taken an overdose of sleeping pills in 1997 and told Williams in 1998 that she had attempted suicide again. Johns-Adams argues that, because her two previous attempts or threats of suicide came before the entry of the last modification order, the alleged threat that occurred after October 9 was not a changed circumstance, but a continuing circumstance.
The question of whether a material and substantial change of circumstances has occurred lies within the sound discretion of the trial court. Gillespie, 664 S.W.2d at 451. Further, a trial court=s determination as to whether a material change of circumstance has occurred is not guided by rigid rules and is fact-specific. In the Interest of Z.B.P. and J.N.P., 109 S.W.3d 772, 779 (Tex. App.CFort Worth 2003, no pet.). Johns-Adams cites no authority for the proposition that, under the circumstances, the threat is insufficient as a matter of law to support the trial court=s finding, and we have found none. We find the evidence is both legally and factually sufficient to support the trial court=s finding of a material and substantial change in circumstances.
However, as in all suits regarding the conservatorship of a child, the court=s primary consideration Ashall 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, 544 S.W.2d 367, 371‑72 (Tex. 1976). Those factors include, but are not limited to: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent, which may indicate that the existing parent‑child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. at 371B72. These considerations are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 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.
At trial, Williams and Johns-Adams testified, as did J.H.W.=s kindergarten teacher, Williams=s fiancée, and friends and family members of Johns-Adams. In addition to testifying about Johns-Adams=s threat, Williams discussed his concerns about the child=s educational and developmental delays. Williams said that, at the age of five, J.H.W. was not able to brush his teeth, was not able to bathe himself without assistance, would eat standing up rather than sitting, used his shirt to wipe his mouth instead of napkins, and had to be instructed on the use of utensils. When J.H.W. was eventually enrolled in first grade, he was sent back to kindergarten because of his delays. Johns-Adams failed to give Williams information about what school J.H.W. attended, but he found out by conducting an internet search of the school district in the area of Johns-Adams=s residence. Williams had been contacted by the school about eight to ten times since J.H.W. started kindergarten.
Anne Marie Manning, J.W.H.=s kindergarten teacher, confirmed that he had been moved from the first grade to kindergarten because of performance issues. Manning said J.H.W. did not have the skills that even kindergartners usually come to school with. When he entered her class in the fall of 2001, he could not say his ABCs, write his name, understand the sounds of letters, count beyond ten, or recite his birth date, address, or telephone number. Manning confirmed that Williams had been contacted about the child=s behavior at least seven times since he started kindergarten. Manning attempted to contact Johns-Adams about J.H.W.=s assessment level at the beginning of the school year, but Johns-Adams did not come in until October. Williams had contacted the principle and left a message for Manning before the first day of class. In January of 2002, Manning placed J.H.W. on at-risk status, which involves private tutoring and the entry of a contract with the parents. In the nine weeks prior to trial on the motion to modify, J.H.W. had made significant improvement.
Williams tried to help his child improve his skills and had asked Johns-Adams to do the same. Based on his conversations with the child, Williams did not believe that Johns-Adams was reinforcing the skills. Williams thought his son was accustomed to watching an excessive amount of television, because during visitation periods J.H.W. would sit in front of the television all day long if permitted without concern for eating or anything else.
Since October of 2000, Williams has experienced problems with Johns-Adams at least three times at the start or end of his periods of visitation. On one occasion in particular, Johns-Adams told Williams, in the child=s presence, that she was going to kill Williams. The teen-aged daughter of Johns-Adams began kicking Williams=s vehicle, and Williams had to call the police to get his son. Williams said that Johns-Adams has said things to make the child cry and has used vulgarity and displayed anger at him in the presence of the child. Johns-Adams also made harassing phone calls to Williams=s fiancée.
Williams said J.H.W. does not want to return to Johns-Adams at the end of his possessory periodsCWilliams has had to physically take his son out of his car to return the child to his mother and the child has fallen to the ground to indicate he does not want to go home with his mother. Williams objected to Johns-Adams allowing her teen-aged daughter to drive J.H.W. to the place of exchange, which means the teenager drives the child to and from Houston and Centerville. Williams admitted he had not been able to exercise all of his scheduled visitation since October of 2000 because the child was sick, and had placed the child in daycare during part of the summer vacation J.H.W. spent with him.
Williams described a typical weekend with his son, which included having breakfast together, going for haircuts, going outside to play different games, and then working on the child=s reading skills and doing flash card work. Williams tried to spend as much time as possible with his son to make sure J.H.W. had a well-rounded and balanced life. Williams said he would have the necessary time to take care of J.H.W.=s needs because as an insurance agent, although he generally works from 9:00 a.m. to 5:00 p.m., his schedule is flexible. He planned a more structured life for J.H.W. with regard to study time and bed time. Williams would wake the child in the mornings, feed him, dress him, and take him to school. Williams hoped to place J.H.W. in private school, and if needed, would seek extra tutoring for the child. Williams conceded he lives with his fiancée, Michelle Wade, and was aware that a prior order of the court prohibited overnight guests while the child was in his possession. Williams and Wade delayed plans to marry during this custody case, but planned to marry in July of 2002. Williams described the relationship between Wade and his son as wonderful. Wade spends time with J.H.W. reading and helping him with flash cards. Williams saw nothing wrong with his living arrangement, did not think it was harmful to the child, and said it had been a positive improvement for the child because of Wade=s influence and of the relationship between J.H.W. and Wade=s child.
Wade discussed harassment charges she filed against Johns-Adams due to Johns-Adams=s calling her home, going to her daughter=s school, calling her place of employment, and calling various family members. Johns-Adams pleaded guilty to the charges and was placed on one-year=s probation. The probation was extended two more months due to a courthouse altercation that occurred while this case was pending. Wade heard a telephone message left for Williams by Johns-Adams in which she threatened to kill Williams. Wade said that J.H.W. has had emotional outbursts when he returns to his mother=s custody.
Johns-Adams testified at the trial and disputed most of Williams=s testimony. She denied ever attempting suicide or threatening to kill herself or the child after the last order to modify had been entered in October of 2000. She admitted to the previous suicide event in 1998, but explained that she had not really taken the sleeping pillsCshe had only claimed to do so to see Williams. She also denied ever threatening to kill Williams. Johns-Adams contended it was not in the best interest of J.H.W. to be with Williams. She said that Williams refused to give the child asthma medication when he had possession of the child and that the child hated going to visit Williams. She also contends that Williams=s living situation is inappropriate and violates a previous court order regarding cohabitation.[4]
Johns-Adams said she has helped with J.H.W.=s classwork, and was gratified that J.H.W. had shown improvement. She asked Manning to make a tape of J.H.W.=s numbers and his alphabets and their sounds and said that when she comes home the first thing they do is go over the tape and do their drills. At the time of trial, Johns-Adams worked three days a week at Sam=s Club and baby-sat five kids after school. Johns-Adams also called friends and family to testify on her behalf. Her daughter and son from previous relationships testified that she was loving toward J.H.W. Her daughter said Johns-Adams and J.H.W. worked together on the tapes prepared by Manning. Her son and other family and friends also said that Johns-Adams was a wonderful mother, who took great care of the child. There was varying testimony about whether the child had flash cards at his mother=s home.
Although the trial court heard contradictory testimony about events that had occurred between the parties and about what would be in the best interest of J.H.W., the question of conservatorship of a child is left to the sound discretion of the trial court when it sits as a trier of fact. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.CEl Paso 2000, no pet.). The trial court is in the best position to Aobserve the demeanor and personalities of the witnesses and can >feel= the forces, powers, and influences that cannot be discerned by merely reading the record.@ Id. A review of the record establishes that the evidence is legally and factually sufficient to support the trial court=s findings. Therefore, the trial court did not abuse its discretion in appointing Williams as the primary joint-managing conservator with the right to establish the residence of the child. We overrule Johns-Adams=s first three issues.
The Post-Judgment Rulings
In her fifth and sixth issues, Johns-Adams contends the trial court erred in (1) ordering Johns-Adams to pay Williams for attorney=s fees incurred in connection with a post-judgment motion for contempt, and (2) denying a motion to change venue filed in connection with another post-judgment motion for contempt. The trial court entered its order on the Motion to Revoke Suspension of Commitment, which awarded Williams attorney=s fees, on October 15, 2003. The trial court entered its order on the Motion to Transfer Venue on November 11, 2003.[5] Johns-Adams filed her notice of appeal in this case on April 22, 2002, and her amended notice of appeal on January 15, 2003. Both notices specifically sought review of the order to modify. Neither notice identified the October 15, 2003 or November 11, 2003 orders as subjects of appellate review nor can we find that these orders would have been subsumed into the previously-entered order to modify. See Tex. R. App. P. 25.1(d)(2) (requiring that appellant Astate the date of the judgment or order appealed from@ in order to properly perfect her appeal); see also In the Interest of T.J.L., 97 S.W.3d 257, 262 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (finding that an interlocutory motion to transfer venue becomes merged into a subsequent, final, appealable order and need not be identified separately in the notice of appeal as long as the notice identifies the subsequent order into which the motion to transfer has been merged). Accordingly, we do not have jurisdiction to consider Johns-Adams=s fifth and sixth issues.
Having overruled or disposed of all of appellant=s issues, we affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed June 10, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] In her statement of the case, Johns-Adams requests that we Aoverturn@ a Rule 11 Agreement contained in the trial court record. The agreement apparently was filed on April 19, 2002, and signed by the trial court judge on May 30, 2002. Johns-Adams has waived this request because she does not provide any argument or authority to support her request or explain how this court would have jurisdiction to overturn an agreement entered by the parties. See Tex. R. App. P. 38.1(e), (h); see also Levin v. Harrington, No. 14-99-01094-CV, 2001 WL 422072, at *6 n.7 (Tex. App.CHouston [14th Dist.] April 26, 2001, no pet.) (not designated for publication) (stating that even if appellant had presented issue for review, he waived review by failing to provide argument, cite legal authorities, and make relevant record references).
[2] Johns-Adams does not contest the portion of the trial court=s order directing her to pay child support.
[3] Former section 156.101 was amended in 2001. Act of June 16, 2001, 77th Leg., R.S., ch. 1289, ' 5, 2001 Tex. Gen. Laws 3108. Amended section 156.101 took effect on September 1, 2001, and applies to actions to modify orders in suits affecting the parent‑child relationship pending on September 1, 2001, or filed thereafter. Tex. Gen. Laws at 3111. Because Williams=s petition to modify was pending on September 1, 2001, we will address the issues raised in this appeal under current section 156.101. The other options under section 156.101 do not apply in this case. See Tex. Fam.Code Ann. ' 156.101(2)B(3). Accordingly, Johns-Adams=s contention that the former provisions of the Family Code apply to this caseCspecifically the provision requiring that the trial court find modification would be a positive improvement for the childC is without merit.
[4] Williams admitted he violated a prior order of the court by living with his fiancée, but the specific provisions of that order are not in the record before us.
[5] Although Johns-Adams has requested the trial transcript be supplemented with these orders, they have not yet been received by this court. These post-judgment orders were issued as a part of the trial court=s continuing, exclusive jurisdiction over the child and in connection with issues arising after the trial court had issued its order to modify the parent-child relationship at issue in this appeal, and according to Johns-Adams, concerned disputes about the payment of child support and violations of a temporary injunction. Because we have no jurisdiction to consider these rulings, we need not wait for the supplemental records to render our decision.