concurring.
I concur with the result reached by the majority but disagree with the standards used to reach that result.
Section 14.033(k) of the Family Code contains the following language:
(k) Rebuttable Presumption. In any suit affecting the parent-child relationship, there is a rebuttable presumption that the “standard order” set forth in this section provides reasonable minimum possession of a child for a parent named as a possessory conservator and that the order is in the best interest of the child.
Tex.Fam.Code Ann. § 14.033(k) (Vernon Supp.1991) (emphasis added).
This section and this rebuttable presumption is applicable to the present case. Suit affecting the parent-child relationship is defined in Section 11.01(5) of the Family Code to mean a suit brought under that subtitle in which the appointment of a managing conservator or possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought. Tex.Fam.Code Ann. § 11.01(5) (Vernon Supp.1991). A motion to modify a divorce decree falls within that definition. Leonard v. Paxson, 654 S.W.2d 440 (Tex.1983); Rogers v. Rogers, 536 S.W.2d 442 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ).
A rebuttable presumption holds good until evidence contrary to it is introduced. This presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the presumed fact. See Black’s Law Dictionary 1267 (6th ed.1990). The majority has cited this presumption but then upheld a decision against Mark Prause because he did not provide evidence that the change would be in the best interest of the child. Because Mark Prause sought the standard visitation, the Legislature has provided that there is a rebuttable presumption that the standard visitation is in the best interest of the child. Thus, Prause could prevail without introducing any evidence on this issue. The majority’s reliance upon MacCallum v. MacCallum, 801 S.W.2d 579 (Tex.App.—Corpus Christi 1990, writ denied), is misguided because in MacCallum, the father was not seeking visitation under the standard order. The party against whom a presumption operates has the burden of producing evidence on the issue. See McGuire v. Brown, 580 S.W.2d 425, 431 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.).
Although the trial court has wide discretion in determining the best interest of the child, it cannot act without reference to any guiding rules and principles, or in an arbitrary or unreasonable manner. It would be an abuse of discretion for the trial court to ignore the statutory presumption.
The Legislature recognized in Tex.Fam. Code Ann. § 14.032(b) (Vernon Supp.1991) that a change of age from being under three years of age1 to being older than three years of age can be a material and substantial change justifying a change in visitation. See also Horne v. Harwell, 533 S.W.2d 450 (Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.).
In the absence of specific findings of fact and conclusions of law, there is a presumption that the trial judge found every fact necessary to sustain the judgment, and the trial court’s decision must be upheld on any legal theory that is supported by the record. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962). Jill Prause did offer testimony in rebuttal to the presumption concerning the home environment of Mark Prause, his consumption of alcoholic beverages in the presence of the child, his tendency to become violent when consuming alcoholic beverages and his keeping of a pit bull dog with a propensity for being vicious. In absence of findings of fact and conclusions of law, we must presume that the trial court found this evidence sufficient to rebut the presumption favoring *389standard visitation, cur with the majority For this reason, I con-
. In the present case, the trial judge noted on the docket that "Child still under age of 5 yrs.”