Affirmed and Memorandum Opinion filed May 31, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-00740-CV
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IN THE INTEREST OF A.A.M. AND C.E.M., Minor Children
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 03-00158
M E M O R A N D U M O P I N I O N
This is an appeal from the trial court=s order transferring the right to designate the primary residence of the minor children A.A.M. and C.E.M. from their mother, appellant Cynthia Moore n/k/a Cynthia Williams, to their father, appellee James Moore. We affirm the trial court=s judgment.
I. Factual and Procedural Background
On December 4, 2003, the trial court signed an agreed decree of divorce ending the Moore marriage. Pursuant to the agreed decree, Cynthia and James were appointed joint managing conservators of their two children, A.A.M. and C.E.M.. Cynthia was given the right to determine the children=s primary residence. The decree included a standard possession order and ordered James to pay child support in the amount of $150 per month.
Only a few months later, on February 20, 2004, Cynthia filed a filed a petition to modify the parent-child relationship, alleging that there had been a material and substantial change in circumstances since the date of the divorce and sought an increase in child support. James filed a general denial and a counter-petition in which he asked the trial to court to grant him the right to designate the children=s primary residence and order Cynthia to pay child support. James=s pleadings included a request for temporary orders and were supported by an affidavit in accordance with Texas Family Code section 156.102. See Tex. Fam. Code Ann. ' 156.102 (Vernon Supp. 2006) (governing suits to modify the designation of the person having the exclusive right to designate the primary residence of a child filed within one year of a previous designation).
After a three-day hearing, the trial court issued a temporary order transferring the right to designate the primary residence of the children from Cynthia to James and ordered Cynthia to pay child support. A nonjury trial on the merits began on April 1, 2005.
A large portion of the testimony at trial centered around the many arguments and disputes that James and Cynthia had when transferring possession of the children. These disputes were typically verbal and often within earshot of the children. For instance, James testified that the first such incident occurred in December 2003, shortly after he moved into an apartment following the divorce. He testified that Cynthia showed up at the apartment while the children were inside and began yelling and cursing at him about his recent move. According to James, the children were afraid and skittish after this incident.
James also testified that in May 2004, Cynthia slapped him and hit him in the back of the head because she believed he was fifteen minutes late returning the children. According to James, he had arrived at Cynthia=s home to return the children at 6:00 p.m. as required, but Cynthia was not there, so he returned fifteen minutes later. James filed a police report concerning this incident, but charges were not filed.
James further testified that while he was returning the children on Father=s Day of 2004, he was physically attackedCin the children=s presenceCby Cynthia or by Cynthia=s mother or sister. The incident left a scratch on James=s neck that was photographed and admitted as evidence at trial. According to James, this altercation lasted nearly two hours. He testified that he could not leave the premises on this occasion because Cynthia=s sister blocked his truck with her vehicle. Cynthia offered the testimony of her brother-in-law, Sheriff Dwayne Benn, that none of the four visitation exchanges he witnessed were confrontational.
James also testified that in May 2004, the children told him that Cynthia had moved from her home at 404 San Jacinto to a new home. James testified that Cynthia did not inform him of this move until June 2004, and instead continued to transfer possession of the children at the 404 San Jacinto residence during May and June. Although Cynthia admitted she initially did not inform James that she had sold the home at 404 San Jacinto, she contends the sale occurred in July 2004, and testified she did not give James notice of the move because the children were in his possession that month.
Regarding the children=s safety and welfare, James testified that he observed and videotaped the children being left alone at Horace Williams=s[1] apartment. It is undisputed that Williams has a prior felony conviction for possession of marijuana; however, the conviction is twenty-five years old. Cynthia admitted that the children were left alone in Williams=s apartment for ten minutes on occasions when Williams needed to go to work and Cynthia had yet to return to the apartment. James also observed and videotaped Cynthia leaving the children at a swimming pool without parental supervision; Cynthia testified that she had asked another woman at the pool to watch the children while she went to the bathroom.
James also offered more specific testimony concerning the children=s physical and emotional well-being. According to James, he learned that A.A.M. had told Cynthia that she wanted to live with her father, and Cynthia had responded by hitting A.A.M. in the mouth. James testified that after this incident he decided to take the children to counseling. When the children began living with James, they began counseling sessions with Carol Stevens,[2] a licensed professional counselor and social worker.
Stevens testified that by the time of trial she had seen each child ten times. According to Stevens, the children told her things which caused her to be concerned for their emotional well-being, but not their physical safety, when they were with their mother. Specifically, she said that Cynthia questioned A.A.M. at length about her desire to live with her father. Stevens also echoed James=s testimony about an incident in which Cynthia struck A.A.M., reopening a prior wound to her lip, and threw C.E.M. onto a sofa. Ms. Stevens contacted Child Protective Services after she learned of these allegations. Cynthia denied slapping A.A.M. on the face or throwing C.E.M. CPS concluded that the risk factors to the children were controlled and closed its investigation.
On April 29, 2005, the trial court found that a modification was in the best interest of the children. Accordingly, it entered an order transferring to James the exclusive right to establish the primary residence of the children and requiring Cynthia to pay child support and provide medical support. No findings of fact were requested or entered, and Cynthia timely filed a notice of appeal.
II. Issues Presented
In her first issue, Cynthia challenges the legal and factual sufficiency of the evidence to support the trial court=s implied findings that (a) the children=s living environment with her had a detrimental effect on the their emotional welfare, and (b) the best interests of the children required a change in the terms of the joint managing conservatorship.[3] In her second issue, Cynthia contends that the trial court had Ainsufficient information for a proper exercise of discretion.@
III. Analysis
A. Standards of Review
Because the sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases, appellate courts employ a hybrid analysis. In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Under the overarching standard, the question of conservatorship of a child is left to the sound discretion of the trial court when it sits as trier of fact. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.CAustin 2006, pet. denied). The trial court is in the best position to observe the demeanor and personalities of the witnesses and can Afeel@ the forces, powers, and influences that cannot be discerned by merely reading the record. Id.
Within this overarching standard, we engage in a two‑pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion, and (2) erred in its application of discretion. See id. at 588. The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed infra. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, the appellate court must conclude that the trial court=s decision was neither arbitrary nor unreasonable. Id. Thus, we resolve the second question by determining whether the trial court=s findings constitute an abuse of discretion.
Because our inquiry both begins and ends with the abuse of discretion standard, we begin by describing this standard of review, and then discuss the legal and factual sufficiency standards of review that pertain to the question of whether the trial court had sufficient information on which to exercise its discretion. We then set forth the law governing the modification at issue before analyzing appellant=s issues.
1. Abuse of Discretion
A trial court=s order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). The fact that a trial court may decide a matter within its discretionary authority in a different manner from an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 241B42. Thus, 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. Id.
2. Legal Sufficiency
Because the appellant attacks the legal sufficiency of an adverse finding on an issue on which she did not have the burden of proof, she must demonstrate on appeal that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The evidence is legally insufficient only if (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 trial court=s exercise of discretion, we consider evidence and inferences 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).
3. Factual Sufficiency
In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752B53 (Tex. App.CHouston [14th Dist.] 2005, no pet.). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex. App.CEl Paso 1998, no pet.). When findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Reach Group, L.L.C., v. Angelina Group, 173 S.W.3d 834, 837 (Tex. App.CHouston [14th Dist.] 2005, no pet.). In the absence of findings and conclusions, the judgment of the trial court implies all necessary fact findings in support of the judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83B84 (Tex. 1992). As the reviewing court, we cannot substitute our conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court=s findings. See id.
4. Governing Law
A trial court may modify an order that provides for the appointment of a conservator of a child if modification would be in the best interest of the child. Tex. Fam.Code Ann. '' 156.101, 153.002 (Vernon 2006); In the Interest of V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). In addition to this primary requirement, the circumstances of the child, a conservator, or other party affected by the existing order must have materially and substantially changed since the rendition of the order before a modification will be warranted. See Tex. Fam.Code Ann. ' 156.101 (Vernon 2006).
In determining the child=s best interest, courts may consider, inter alia:
(a) the desires of the child,
(b) the emotional and physical needs of the child now and in the future,
(c) the emotional and physical danger to the child now and in the future,
(d) the parental abilities of the individuals seeking custody,
(e) the programs available to assist these individuals to promote the best interest of the child,
(f) the plans for the child by these individuals or by the agency seeking custody,
(g) the stability of the home or proposed placement,
(h) the acts or omissions of the parent which may indicate that the existing parent‑child relationship is not a proper one, and
(i) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976).
B. Sufficiency of the Evidence
Section 156.102 of the Texas Family Code requires an affidavit to be filed by the person seeking modification if it has been less than a year since the order was rendered. Tex. Fam. Code Ann. ' 156.102 (Vernon 2006). This affidavit, as is relevant to this case, must contain an allegation, supported by facts, that the child=s present environment may endanger the child=s physical health or significantly impair the child=s emotional development. See id. Cynthia does not dispute that James complied with this requirement.
Similarly, Cynthia does not challenge the trial court=s express or implied finding that the circumstances of a party affected by the order have materially and substantially changed since the final divorce decree was signed on December 4, 2003. Instead, she contends that the evidence does not support the trial court=s finding that the children=s living environment with her Ahad a detrimental affect [sic] on the children=s emotional welfare.@ We disagree.
First, the trial court heard Carol Stevens testify that she was concerned for the children=s emotional well-being when they were with their mother. In particular, Stevens testified that Cynthia questioned A.A.M. at length about her desire to live with her dad and other issues. Ms. Stevens also echoed James=s testimony that Cynthia slapped A.A.M. and threw C.E.M. onto a couch. Pictures that the children drew for Ms. Stevens, which were entered into evidence, depicted Cynthia hitting them and drinking beer.
In addition, James testified extensively about arguments the children witnessed and overheard during custody exchanges. According to James, A.A.M. told him that Cynthia struck her, causing a prior injury to bleed. Finally, James described instances in which the children had been left without parental supervision at a swimming pool, and had been left without any adult supervision at Horace Williams=s apartment.
Under the applicable standard of review, we conclude there is sufficient evidence to sustain the trial court=s determination that the children=s living environment with Cynthia had a detrimental affect on their emotional welfare. We therefore overrule Cynthia=s first and second issues in part, and turn our attention to the trial court=s assessment of the best interests of the children.
C. Application of Best Interest Factors
Because findings of fact and conclusions of law were neither requested nor filed, we presume that the trial court made all necessary findings to support its judgment. Heine, 835 S.W.2d at 83B84.
We begin our analysis by addressing the first Holley factor, the desires of the children. Although Cynthia testified that the children told her they wanted to live with her, Carol Stevens testified that A.A.M. and C.E.M. told her they preferred living with their father. Stevens also testified that Cynthia and sometimes Horace Williams questioned the children about this issue, but the children feared their mother=s response to hearing their preference. Ms. Stevens stated that behavior such as Cynthia=s questioning caused her concern for the children=s emotional well-being. She further opined that children should be able to love one parent without having to justify that to the other.
We next consider the emotional or physical needs of the children. The record indicates that Cynthia had previously been held in contempt for nonpayment of child support, although she brought the payments current after she sold the house at 404 San Jacinto. In addition, James testified that at least on one occasion, Cynthia did not provide the children with adequate clothing and did not feed them adequately on other occasions. The testimony concerning James=s care of the children showed no such deficiencies. Thus, the trial court could have inferred that James is better able to meet the children=s emotional and physical needs.
There was also testimony that if the children were to resume living with their mother, they would have to attend school in the Cy-Fair district, rather than the LaPorte district in which they had attended school when they last lived with their mother. The trial court reasonably could have considered this an additional destabilizing influence that could have a detrimental affect on the children=s social and academic development.
Moreover, Horace Williams testified that Cynthia is forbidden by court order from driving, and she relies on Williams and her sister for transportation. This is further evidence from which the trial court could reasonably conclude that James, who is under no such restrictions, is better able to meet the children=s needs.
The trial court may also have considered the emotional and physical danger to the children now and in the future. In addition to Stevens=s testimony that she was concerned for the children=s emotional well-being, James produced evidence that Cynthia had left the children without parental supervision at a swimming pool, and had left them completely unattended at Horace Williams=s home.
The trial court also heard evidence that Cynthia moved without giving notice of the move as required by the final divorce decree.
Considered together, the evidence weighs strongly in James=s favor. On this record, which includes the trial court=s implied findings of fact, we cannot say that the trial court abused its discretion by awarding James the right to designate the children=s primary residence. To the contrary, the record supports the determination that this modification is in the best interest of the children.
Accordingly, we overrule appellant=s issues and affirm the trial court=s judgment.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed May 31, 2007.
Panel consists of Justices Anderson, Hudson, and Guzman.
[1] Horace Williams was Cynthia=s boyfriend during the summer of 2004 and Cynthia=s husband at the time of trial.
[2] This person=s name is also spelled ACarole Stephens@ in the record.
[3] Although Cynthia=s stated issues present challenges to Afindings of fact@ contained in the trial court=s modification order, findings of fact are required to be filed separately from and not recited in a judgment. Tex. R. Civ. P. 299a. In the absence of a requirement that specific findings of fact be included in the trial court=s order, findings included in a judgment cannot form the basis of a claim on appeal. Frommer v. Frommer, 981 S.W.2d 811, 813B14 (Tex. App.CHouston [1st Dist.] 1998 pet. dism=d); see also In re E.A.C., 162 S.W.3d 438, 442 (Tex. App.CDallas 2005, no pet.) (AThe legislature made it clear in enacting the family code that, unless expressly provided otherwise, suits affecting the parent-child relationship are to be governed by the same rules of procedure as those generally applied in other civil cases.@) (citing Tex. Fam. Code Ann. ' 109.002(a) (Vernon Supp. 2006)). Moreover, even if the recitation of this finding were sufficient to preserve a complaint on appeal, the particular language that Cynthia challenges appears to address a requirement for modification that was formerly found in section 156.104 of the Family Code, but that was eliminated by an amendment in 2001. Compare Act approved April 24, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws, 113, 173B74, amended by Act approved June 16, 2001, 77th Leg., R.S., ch. 289, ' 8, 2001 Tex. Gen. Laws 3108, 3110 (permitting modification of custody when, inter alia, retention of a sole managing conservatorship would be detrimental to the welfare of the child) (emphasis added) with Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006) (permitting modification of prior court order if circumstances have substantially changed and the modification would be in the child=s best interest, but containing no requirement that the trial court find current conditions have a detrimental effect on the child=s welfare). Nevertheless, because much of Cynthia=s argument implies a challenge to the sufficiency of the evidence supporting the implied finding that the modification is in the children=s best interest, we interpret her stated issues to present this argument.