Opinion issued June 27, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00668-CV
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MARJORIE CHAMPENOY, Appellant
V.
AARON CHAMPENOY, Appellee
On Appeal from the 257th District
Harris County, Texas
Trial Court Case No. 2010-19801
MEMORANDUM OPINION
Appellant, Marjorie Champenoy, challenges the trial court’s order
modifying a divorce decree to appoint appellee, Aaron Champenoy, sole managing
conservator of their child. 1 In four issues, Marjorie contends that the trial court
erred in (1) not determining the adequacy of facts in support of Aaron’s Petition to
Modify; (2) granting a change of custody when Aaron failed to show a change in
circumstances; (3) not making findings of fact and conclusions of law to support its
award of child support of $542 per month; and (4) denying her motion for a new
trial.
We affirm.
Background
Marjorie and Aaron Champenoy married in 2004, had one child, and
divorced in 2010. The divorce decree appointed Marjorie and Aaron joint
managing conservators of the child and gave Marjorie the exclusive right to
establish the child’s primary residence. Soon after Marjorie and the child moved
to Nevada in January 2011, Aaron filed a petition to modify the parent-child
relationship, alleging a material and substantial change of circumstances and the
child’s “present circumstances may significantly impair [her] physical health or
emotional development.2 Aaron sought to be appointed sole managing conservator
of the child.
1
A motion to modify the parent-child relationship is a suit affecting the parent-child
relationship (“SAPCR”). See TEX. FAM. CODE ANN. § 101.032(a) (Vernon 2008).
2
See TEX. FAM. CODE ANN. § 156.102 (Vernon Supp. 2012).
2
After a hearing, the trial court granted a temporary modification of the
divorce decree. It ordered that Marjorie and Aaron remain joint managing
conservators, but limited Marjorie’s exclusive right to designate the primary
residence of the child to Harris County, Texas. Marjorie later filed a counter-
petition to modify the parent-child relationship, alleging material and substantial
changes in circumstance and seeking appointment as sole managing conservator.
After a bench trial, the trial court found that the material allegations in
Aaron’s petition were true and the requested modification was in the child’s best
interest. In its final order, the trial court appointed Aaron as sole managing
conservator and Marjorie as parent possessory conservator. Marjorie requested
findings of fact and conclusions of law, and she filed a motion for new trial, which
the trial court denied.
Standard of Review
Trial courts have wide discretion regarding custody, control, possession,
support, and visitation matters involving children. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—
Houston [1st Dist.] 1993, writ denied). We review a trial court’s decision on
custody, control, possession, and visitation matters for an abuse of discretion; and
we reverse a trial court’s order only if we determine, from reviewing the record as
a whole, that the trial court’s decision was arbitrary and unreasonable. Patterson v.
3
Brist, 236 S.W.3d 238, 239–40 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d)
(citing Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.]
2001, no pet.)). We also apply the abuse of discretion standard to review a trial
court’s determination of conservatorship and denial of a motion for new trial. In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie, 644 S.W.2d at 451)
(determination of conservatorship); see Cliff v. Huggins, 724 S.W.2d 778, 778–79
(Tex. 1987) (denial of a motion for new trial). We view the evidence in the light
most favorable to the trial court’s decision and indulge every legal presumption in
favor of its judgment. Holley, 864 S.W.2d at 706. We will reverse only if the trial
court abused its discretion by acting without reference to any guiding rules or
principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Legal- and factual-insufficiency challenges are not independent grounds for
asserting error in custody determinations, but are relevant factors in determining
whether the trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749,
753 (Tex. App.—Dallas 2004, no pet.). To determine if the trial court abused its
discretion, we consider whether the trial court had sufficient evidence on which to
exercise its discretion and erred in its exercise of that discretion. In re H.N.T., 367
S.W.3d 901, 903 (Tex. App.—Dallas 2012, no pet.). There is no abuse of
discretion if some evidence of a substantive and probative character supports the
4
decision, and we will not substitute our judgment for that of the trial court. Holley,
864 S.W.2d at 706.
Sufficiency of Aaron’s Affidavit
In her second issue, Marjorie argues that the trial court erred in granting
Aaron’s petition to modify because his affidavit, attached to the petition, did not
contain the allegations required for modification. See TEX. FAM. CODE ANN. §
156.102 (Vernon Supp. 2012). And she asserts that the trial court erred in not first
making a determination that the facts were adequate to support the allegations
before it conducted a hearing. See id.
Section 156.102 provides:
(a) If a suit seeking to modify the designation of the person having the
exclusive right to designate the primary residence of a child is filed
not later than one year after the earlier of the date of the rendition of
the order or the date of the signing of a mediated or collaborative law
settlement agreement on which the order is based, the person filing the
suit shall execute and attach an affidavit as provided by Subsection
(b).
(b) The affidavit must contain, along with supporting facts, at least
one of the following allegations:
(1) that the child’s present environment may endanger the
child’s physical health or significantly impair the child’s
emotional development;
(2) that the person who has the exclusive right to designate the
primary residence of the child is the person seeking or
consenting to the modification and the modification is in the
best interest of the child; or
5
(3) that the person who has the exclusive right to designate the
primary residence of the child has voluntarily relinquished the
primary care and possession of the child for at least six months
and the modification is in the best interest of the child.
(c) The court shall deny the relief sought and refuse to schedule a
hearing for modification under this section unless the court
determines, on the basis of the affidavit, that facts adequate to support
an allegation listed in Subsection (b) are stated in the affidavit. If the
court determines that the facts stated are adequate to support an
allegation, the court shall set a time and place for the hearing.
Id.
An examination of Aaron’s affidavit reveals that it contained the allegations
required by 156.102(b)(1). In the affidavit, Aaron testified to facts about
Marjorie’s multiple changes of residence and romantic partners, including two
engagements within a few months, erratic behavior, and possible dependency on
prescription drugs. Aaron then stated:
I believe that my daughter’s present environment at her mother’s
home may endanger her physical health or significantly impair her
emotional development. I believe that my daughter’s physical health
and emotional development will be impaired if my ex-wife continues
to have the right to establish our daughter’s residence.
Thus, Aaron’s affidavit meets the statutory requirements. See TEX. FAM. CODE
ANN. § 156.102(a), (b).
Marjorie also argues that Aaron’s affidavit is technically deficient and “not
even an affidavit” because he only claimed a “strong belief,” “perjury will not
attach to it,” and certain facts alleged by him occurred before the entry of the
6
divorce decree. In support of her argument, Marjorie relies on Humphreys v.
Caldwell, 888 S.W.2d 469 (Tex. 1994). In Humphreys, the Texas Supreme Court
held that to be legally sufficient, an affidavit must positively and unqualifiedly
represent the facts as disclosed in the affidavit to be true and within the affiant’s
personal knowledge. Id. at 470. The court noted that the affiant stated that his
testimony was based on his “own personal knowledge and/or knowledge which he
has been able to acquire upon inquiry.” Id. The court explained that this statement
failed “to unequivocally show that th[e] [two affidavits] are based on personal
knowledge.” Id. And the affiant provided no representation that the facts
disclosed were true. Id. Here, Aaron’s affidavit is distinguishable from those in
Humphreys because Aaron unequivocally states that “[t]he facts stated in this
affidavit are within my personal knowledge and are true and correct.” Aaron used
the phrase “I strongly believe” in a general opening paragraph of his affidavit that
was followed by specific facts. Aaron swore that the facts were within his personal
knowledge and were true and correct. We conclude that Aaron’s affidavit is
legally sufficient and meets the requirements of section 156.102.
To evaluate the sufficiency of the supporting affidavit required by section
156.102(b), the trial court was required to look at the sworn facts and determine
whether, if true, they justified a hearing on the petition to modify. In re A.L.W.,
356 S.W.3d 564, 566 (Tex. App.—Texarkana 2011, no pet.); Burkhart v. Burkhart,
7
960 S.W.2d 321, 323 (Tex. App.—Houston [1st. Dist] 1997, pet. denied). Aaron
was entitled to a hearing on his motion to modify if he swore to facts adequate to
support a finding that the child’s physical health “may be endangered” or her
“emotional development significantly impaired by the present environment.” See
In re A.L.W., 356 S.W.3d at 566.
If no affidavit is filed or if a filed affidavit is insufficient, section 156.102(c)
requires a trial court to deny a motion to modify and refuse to schedule a hearing
on its merits. See TEX. FAM. CODE ANN. §156.102(c). However, a trial court is not
required to make a specific finding on the record that the affidavit is sufficient to
warrant a hearing; and, here, the fact that the court set the hearing is, itself, proof
that it considered Aaron’s affidavit adequate. See In re A.L.W., 356 S.W.3d at
566–67; In re S.A.E., No. 06–08–00139–CV, 2009 WL 2060087 (Tex. App.—
Texarkana July 17, 2009, no pet.) (mem. op.); In re C.L.L., No. 12-06-00007- CV,
2007 WL 2045241, at *3 (Tex. App.—Tyler July 18, 2007, no pet.) (mem. op)
(trial court setting and hearing a motion to modify, constitutes proof that trial court
regarded affidavit as adequate). Even if the trial court had erroneously conducted a
hearing, any error would be harmless if the testimony admitted during the hearing
would support an allegation that the child’s environment may significantly impair
her emotional development, In re A.L.W., 356 S.W.3d at 567; In re A.C.S., 157
S.W.3d 9, 18–19 (Tex. App.—Waco 2004, no pet.).
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We overrule Marjorie’s second issue.
Material and Substantial Change of Circumstances
In her first issue, Marjorie argues that the trial court erred in granting
Aaron’s request to modify custody because he “admitted” in his testimony that
there was no change in circumstance and failed to “prove” a change in
circumstance. 3 Aaron asserts in response that he presented evidence of a material
and substantial change in circumstances and this was supported by Marjorie’s
testimony. And Aaron asserts that Marjorie judicially admitted to a change in
circumstance by seeking her own modification and independently pleading that
there was a material and substantial change in circumstance.
A trial court may modify a conservatorship order if modification would be in
the best interest of the child and the circumstances of the child, a conservator, or
other person affected by the order have materially and substantially changed since
the date of the rendition of the prior order. See TEX. FAM. CODE ANN.
3
Marjorie argues that in order to modify the child’s custody designation in the
divorce decree, Aaron had to show that modification would be a “positive
improvement for the child” in addition to a material and substantial change of
circumstance. However, section 156.202, which provided for modification of joint
managing conservatorship, has been repealed, and section 156.101 wasrewritten in
2001. Act of May 22, 2001, 77th Leg., R.S., ch. 1289, §§ 5, 12, 2001 Tex. Gen.
Laws 3108, 3111. Before 2001, a movant was required to show a material and
substantial change in circumstances as well as positive improvement for the child.
See In re V.L.K., 279 S.W.3d 338, 342 (Tex. 2000). The current version of section
156.101 no longer includes the requirement of “positive improvement for the
child.” See Lenz v. Lenz, 79 S.W.3d 10, 12 n.1 (Tex. 2002). Accordingly, we
conduct our analysis under the current version of section 156.101.
9
§ 156.101(a)(1)(A) (Vernon Supp. 2012). In determining whether a material and
substantial change of circumstances has occurred, the fact finder is not confined to
rigid or definite guidelines; instead, the determination is fact-specific and must be
made according to the circumstances as they arise. In re A.L.E., 279 S.W.3d 424,
428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Material changes may
include (1) the marriage of one of the parties; (2) “poisoning” of a child’s mind by
one of the parties; (3) change in the home surroundings; (4) mistreatment of a child
by a parent or step-parent; or (5) a parent’s becoming an improper person to
exercise custody. Arrendondo v. Betancourt, 383 S.W.3d 730, 734–35 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). A course of conduct by one parent that
hampers a child’s opportunity to associate favorably with the other parent may
suffice as grounds for re-designating managing conservators. Id. at 735. Such a
material and substantial change in circumstances may be established by either
direct or circumstantial evidence. In re A.L.E., 279 S.W.3d at 429.
Without any specific citation to the record, Marjorie asserts that Aaron
“admitted” in his testimony that there was no substantial change in circumstances
and he failed to “prove” a substantial change of circumstances between the divorce
decree and the filing of the petition to modify. Marjorie’s own trial testimony
conclusively established changed circumstances sufficient to support the
modification in Aaron’s favor. She testified that she lived in three different
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residences in a four-month period; she had been engaged to two different men with
only three months separating the engagements; she was unemployed since she had
been ordered to move back to Houston; and she kept the child out of school for
three days, which constituted “unexcused absences.” This testimony alone was
sufficient to establish changed circumstances.
Additionally, Aaron offered sufficient evidence of a substantive and
probative character to support the trial court’s modification of the divorce decree.
At trial, Aaron testified that since the entry of the divorce decree he had remarried
and had another child, Marjorie had lived in five different residences, the longest
period of time being eight months after the trial court entered temporary orders
requiring her to bring the child back to Harris County, she had been engaged to
two different men, was unemployed, and moved to Nevada with the child. We
conclude that at least some evidence of a substantial and probative character exists
to support the trial court’s finding of a material and substantial change in
circumstances since the divorce decree. See Valdez v. Valdez, 930 S.W.2d 725,
731 (Tex. App.—Houston [1st Dist.] 1996, no writ).
We overrule Marjorie’s first issue.
Findings of Fact and Conclusions of Law
In her third issue, Marjorie argues that the trial court abused its discretion in
modifying child support because it “deviated from the child support guidelines”
11
and did not make findings of fact and conclusions of law “to explain why it
deviated from the Child Support Guidelines.” A trial court is required to make
specific findings if “the amount of child support ordered by the court varies from
the amount computed by applying the percentage guidelines under [Family Code]
Section[s] 154.125 or 154.129 as applicable” or if a party “files a written request
with the court not later than 10 days after the date of the hearing.” TEX. FAM.
CODE ANN. § 154.130(a)(1), (3) (Vernon Supp. 2012). Because Marjorie made a
timely request for findings of fact and conclusions of law, the trial court was
required to make them. 4 However, the trial court did not vary from the child
support guidelines here, and it made the findings of fact and conclusions of law
required by section 154.130 in the modification order.
Section 154.130 provides:
(b) If findings are required by this section, the court shall state
whether the application of the guidelines would be unjust or
inappropriate and shall state the following in the child support order:
“(1) the net resources of the obligor per month are
$_______;
4
Aaron argues that Marjorie has waived this issue because she failed to notify the
trial court that it had not made the requested findings by filing a “Notice of Past
Due Findings of Fact and Conclusions of Law.” See TEX. R. CIV. P. 297.
However, section 154.130 states that the statutory requirement of entry of findings
and conclusions by the trial court is “[w]ithout regard to Rules 296 through 299,
Texas Rules of Civil Procedure.” TEX. FAM. CODE ANN. § 154.130(a) (Vernon
Supp. 2012). Therefore, Marjorie was not required to notify the trial court of any
past due findings. Regardless, the trial court made the findings required by section
154.130 in the modification order.
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“2) the net resources of the oblige per month are
$_______;
“(3) the percentage applied to the obligor’s net resources
for child support is _______%; and
“(4) if applicable, the specific reason that the amount of
child support per month ordered by the court varies from the amount
computed by applying the percentage guidelines under Section
154.125 or 154.129, as applicable.”
TEX. FAM. CODE ANN. § 154.130.
In the modification order, the trial court found that Marjorie had not
provided the court with tax returns or a financial information statement. See TEX.
FAM. CODE ANN. § 154.063 (Vernon 2008). The court noted that it was basing its
child support determination on the percentage guidelines, Marjorie’s net resources
per month were $2,710.57, and Aaron’s net resources per month were $2,375.00.
The trial court stated that the percentage applied to the first $7,500 of Marjorie’s
net resources was twenty percent. Thus, the trial court made the findings of fact
and conclusions of law required by section 154.130, and Marjorie was not entitled
to any separate findings. See Evans v. Evans, 14 S.W.3d 343, 347 (Tex. App.—
Houston [14th Dist.] 2000, no pet.).
We overrule Marjorie’s third issue.
Motion for New Trial
In her fourth issue, Marjorie argues that the trial court abused its discretion
in denying her Motion for New Trial because she “point[ed] out to the trial court
13
its error.” Having concluded that there was some evidence of a substantial and
probative character to support the trial court’s finding of material and substantial
change in circumstance, we conclude that the trial court did not abuse its discretion
in denying Marjorie’s motion for new trial.
We overrule Marjorie’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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Marjorie Champenoy v. Aaron Champenoy
Combined Opinion