Affirmed and Memorandum Opinion filed March 22, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00066-CV
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PAULINE BUI, Appellant
V.
DELFORD N. WILCOXSON, Appellee
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On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 97‑37663
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M E M O R A N D U M O P I N I O N
In this suit for modification of conservatorship, we determine whether the trial court abused its discretion by removing appellant Pauline Bui as sole managing conservator of the parties= children and ordering a joint managing conservatorship. Appellant argues the evidence is legally and factually insufficient because appellee Delford Wilcoxson failed to present direct evidence of circumstances existing when the original custody order was entered. We affirm.
I. Factual Background
Pauline Bui and Delford Wilcoxson are the parents of two minor children. In July 1997, the trial court entered an Agreed Order Establishing the Parent-Child Relationship (AAgreed Order@). In the Agreed Order, Pauline was appointed sole managing conservator of the children, and Delford was appointed possessory conservator. Approximately six years later, Delford filed a petition to modify the parent-child relationship, seeking joint managing conservatorship. Delford also requested that he be granted the right to establish the children=s primary residence. After a bench trial, the court removed Pauline as sole managing conservator, appointed Pauline and Delford as joint managing conservators, and awarded Delford the exclusive right to designate the children=s primary residence. This appeal followed.
II. Discussion
In her sole issue on appeal, Pauline argues the trial court abused its discretion because there was no evidence or factually insufficient evidence to prove a material and substantial change in circumstances.[1] According to Pauline, because Delford failed to demonstrate what conditions existed at the time the Agreed Order was entered, there can be no finding by the trial court that a material and substantial change has occurred. She contends this alleged lack of evidence is fatal to Delford=s petition to modify. Pauline further argues that at trial Delford=s complaints only focused on current conditions, Aespecially that [Pauline] is unpleasant to him.@ Pauline asserts that there is no indication this alleged condition was not present when the Agreed Order was entered. The record, however, reflects Delford relied on, among other things, Pauline=s frequent changes of address and employers following the Agreed Order, and her subsequent marriage, as material and substantial changes.
A. 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). 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, their demeanor and personalities, and can sense the Aforces and powers@ motivating them. Warchol v. Warchol, 853 S.W.2d 165, 168 (Tex. App.CBeaumont 1993, no writ); see also Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.CEl Paso 2000, no pet.).
The test for abuse of discretion is whether the court acted arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.CHouston [14th Dist.] 1999, no pet.). 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. Bates v. Tesar, 81 S.W.3d 411, 424 (Tex. App.CEl Paso 2002, no pet.). 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. Jenkins, 16 S.W.3d at 477. Under an abuse of discretion standard, legal and factual sufficiency challenges to the evidence are not independent grounds of error, but are merely factors in assessing whether the trial court abused its discretion.[2] In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.).
Pauline did not request findings of fact and conclusions of law. Generally, when the trial court does not issue findings and conclusions, all facts supported by the evidence and necessary to support the judgment are implied. Vickery v. Comm=n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). 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. Id.
B. Requirements for Modification
To support modification of an order regarding conservatorship, a trial court must find that the modification would be in the best interests of the children and, as it applies to this case, that the circumstances of the children, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order.[3] See Tex. Fam. Code Ann. ' 156.101(1) (Vernon Supp. 2004).[4] The party seeking modification has the burden to establish these elements. In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.CFort Worth 2002, pet. denied). The best interest of the child must be the court=s primary concern in such proceedings. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002); T.D.C., 91 S.W.3d at 873.
The requirement of a material and substantial change of circumstances under Section 156.101 rests on the doctrine of res judicata, establishing the best interests of the children at the time the original order was issued. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.CFort Worth 2003, no pet.). By requiring a material and substantial change, the statute works to prevent constant relitigation regarding the children. In re C.Q.T.M., 25 S.W.3d 730, 735 (Tex. App.CWaco 2000, pet. denied).
Some of the circumstances our courts have held as evidencing material and substantial changes are as follows: (1) the marriage, or remarriage, of one parent; (2) poisoning of the minds of the children by one parent; (3) one of the parties becoming an improper person for custody; (4) changes in the home surroundings; (5) one of the parents becoming unpleasant toward a child or other similar changes. Leonard v. Leonard, 218 S.W.2d 296, 301 (Tex. Civ. App.CSan Antonio 1949, no writ); see also C.Q.T.M., 25 S.W.3d at 735 (noting that evidence of a subsequent marriage to another can constitute a material change of circumstances).
C. Is the Evidence Legally and Factually Sufficient?
We first address Pauline=s argument that because Delford failed to offer direct evidence of the circumstances existing at the time the Agreed Order was entered, he failed to establish a material and substantial change had occurred.
Although it is well settled that a party moving to modify a custody order must establish that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed, the method of establishing any change is not prescribed by the Family Code. See T.A.B. v. W.L.B., 598 S.W.2d 936, 939 (Tex. Civ. App.CEl Paso 1980), writ ref=d n.r.e., 605 S.W.2d 695 (Tex. 1980) (per curiam). The requirement under the statute is only that a change must be shown. Id.; see Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2004). AAny method of proof which does that satisfies the [s]tatute.@ T.A.B., 598 S.W.2d at 939. Thus, when evidence is offered that shows new and different conduct or circumstances occurring subsequent to the rendition of the order to be modified, it can serve to establish a material and substantial change. Id. at 939B40; e.g., Chance v. Chance, 911 S.W.2d 40, 48B49 (Tex. App.CBeaumont 1995, writ denied) (examining evidence regarding events occurring subsequent to the divorce decree and finding it inferentially established the necessary proof for modification); see also C.Q.T.M., 25 S.W.3d at 734B35 (finding evidence of changed circumstances is generally relevant insofar as it reflects a change of circumstances after the date of rendition of the decree sought to be modified); Villarreal v. Villarreal, 684 S.W.2d 214, 218 (Tex. App.CCorpus Christi 1984, no writ) (AWhether there has been a material and substantial change of conditions affecting the child is normally to be determined by an examination of the evidence of changed circumstances occurring between the date of the order or judgment sought to be modified and the date of the motion to modify.@). In this case, after reviewing the record evidence, we conclude it is sufficient to show material and substantial changes occurred since the Agreed Order was entered, and therefore supports the trial court=s modification.
Pauline testified that she married Jameel Abu Jarad on July 27, 1997, a date subsequent to the Agreed Order. She stated Jarad left the United States in 2001 because he had been charged with theft of over $100,000 and was being sought by the police. She acknowledged there was a warrant out for his arrest. Pauline testified that Jarad could not reenter the United States legally, but acknowledged that she had not sought a divorce, injunction, or protective order regarding Jarad. Pauline also testified that her daughter slept with her and Jarad, and when asked whether she would be surprised if her daughter informed someone that she saw Pauline and Jarad performing a sex act, Pauline responded, ANo, I wouldn=t. She should be asleep, though.@
Pauline also admitted that in January of 2003, while she was in California, she smoked marijuana. Pauline testified that she would not be Asurprised@ if the children had seen her smoking it while there. Following this testimony, Delford=s counsel questioned Pauline regarding her residences since 1997 and established that Pauline had lived at six different locations subsequent to that time. It was also established that Pauline had several different employers following the Agreed Order and, at the time of the hearing, although she was working two part-time jobs, she was not employed full-time.
Delford testified that Acareerwise,@ prior to the Agreed Order, he was not Aset.@ He stated, however, that he became a police officer in December 1997 and had been working as an officer since that time. He also testified that he had purchased a house subsequent to the Agreed Order. Finally, Delford statedCand Pauline agreedCthat Pauline had cursed and insulted Delford while the children were present. All of these events occurred subsequent to July 23, 1997, the date the Agreed Order was entered.
We conclude this evidence is legally and factually sufficient to support the trial court=s order modifying conservatorship. See, e.g., T.A.B., 598 S.W.2d at 939B40 (upholding modification due primarily to evidence of mother=s Aquick marriage@ and change of residences, characterizing the mother=s lifestyle as unstable following divorce); see also Brown v. Brown, 500 S.W.2d 210, 215B16 (Tex. Civ. App.CTexarkana 1973, no writ) (holding that even controverted evidence of materially changed conditions binds appellate courts unless a clear abuse of discretion is apparent). We hold the trial court did not abuse its discretion and, accordingly, affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed March 22, 2005.
Panel consists of Justices Yates, Edelman, and Guzman.
[1] See Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2004).
[2] Because we apply an abuse of discretion standard to a modification suit, the traditional sufficiency standards of review overlap the abuse of discretion standard. See In re C.R.O., 96 S.W.3d 442, 447 (Tex. App.CAmarillo 2002, pet. denied).
[3] Pauline does not challenge the trial court’s determination that modification was in the children’s best interest.
[4] In his amended petition to modify, Delford also alleged that Pauline, as the conservator with the exclusive right to designate the children’s primary residence, had voluntarily relinquished primary care and possession of the children for at least six months. In its final order, however, the trial court concluded that there had been a material and substantial change in the “circumstances of the children and the conservators,” and neither party on appeal argues that Pauline had relinquished care and possession of the children for the requisite period of time. See Tex. Fam. Code Ann. ' 156.101(3).