Opinion
NO. 09-11-00368-CV
05-31-2012
IN THE INTEREST OF J.G.M.
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 27688
MEMORANDUM OPINION
This appeal is from an order granting summary judgment in favor of the father, N.M., in a suit affecting the parent-child relationship, and from an order setting out reimbursement to the father. N.M. and S.M. divorced in 2007. The divorce decree appointed the parents joint managing conservators of J.G.M. and gave S.M. the right to designate the child's primary residence within 100 miles of Jasper County, Texas. N.M. was given visitation rights under a standard possession order. N.M. filed a "Petition to Modify Parent-Child Relationship and for Enforcement of Property Division and Possession and Access." He requested that he be named primary managing conservator of the child, and that S.M. be denied access to the child or be given only limited access with supervised visitation. S.M. filed a counter-petition for modification. Temporary orders were entered; the trial court ordered that the child's primary residence would be with N.M. Subject to certain conditions, S.M.'s access to the child would be under a standard visitation order. The temporary orders were to apply until the court entered further orders or a final order. N.M. filed a motion for summary judgment, which the trial court granted. S.M. appeals from the summary judgment. N.M. also appeals with a cross-point.
MOTION FOR SUMMARY JUDGMENT
The party seeking modification of an order establishing conservatorship has the burden to establish by a preponderance of the evidence that modification would be in the best interest of the child, and that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition. See Tex. Fam. Code Ann. § 156.101 (West Supp. 2011); Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied). Both N.M. and S.M. pleaded that a material and substantial change in circumstances had occurred.
S.M. argues that N.M.'s pleading is a no-evidence motion for summary judgment. N.M. contends his motion for summary judgment combines both traditional and no-evidence motions. See Tex. R. Civ. P. 166a(c), (i). The Rules of Civil Procedure do not prohibit a party from filing in a single motion a request for a traditional summary judgment and a request for a no-evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). N.M. asserts that in a single pleading he filed a Rule 166a(i) no-evidence motion in response to S.M.'s counter-petition for modification and a Rule 166a(c) motion on his own modification petition. His pleading begins with a no-evidence motion setting out the challenged elements. In the motion's next section, entitled "[N.M.'s] Petition to Modify," N.M. submits evidence "to support his petition." The trial court granted the relief requested after consideration of "the proper summary judgment evidence."
Under Rule 166a(i) a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166(a)(i). The trial court may grant a no-evidence motion for summary judgment unless the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the elements challenged by the motion. See id.; Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Ridgway, 135 S.W.3d at 601.
The first part of N.M.'s pleading, the no-evidence motion, sets out the elements that must be proved in a petition to modify, and then states the elements he challenges as having no supporting evidence. S.M.'s response references her testimony at other hearings and asks the Court to take judicial notice of her testimony. The hearings are not in the record. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (affidavits outside the record not considered by appellate court unless for purpose of determining trial court's jurisdiction). S.M. did not raise a fact issue on the elements challenged by N.M. in his no-evidence motion for summary judgment. The trial court did not err in granting a no-evidence summary judgment on S.M.'s modification petition.
To prevail on a Rule 166a(c) motion for summary judgment, the movant has the burden of proving that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); see Tex. R. Civ. P. 166a(c). The evidence that N.M. produced establishes that entitlement. N.M. attached a 2008 mental health evaluation of N.M., S.M., and J.G.M. conducted by Jeanne Upchurch, Ph.D., LPC; a May 2011 affidavit from V. Jean Stanley; a May 2011 affidavit from Joe McCracken, licensed professional counselor; and N.M.'s affidavit.
In his affidavit, N.M. stated that J.G.M. has lived primarily with N.M. since June 6, 2008. From September 2006 to June 2008, J.G.M. lived with his mother. N.M. described the strained relationship between himself and S.M., and he indicated she has frequently leveled accusations at him, none of which were found to be true. N.M. referenced the many court hearings in this case. He recounts the improvement that J.G.M. has made while in his care.
Upchurch's report states that the evaluation "was requested on all parties due to the excessive judicial nature of this case." The report is highly unfavorable to S.M. Dr. Upchurch recommended that J.G.M. remain in the custody of N.M. with standard visitation for S.M. Stanley recommended to the trial court that N.M. be the primary managing conservator, that S.M. be the possessory conservator, and that S.M. be given a modified standard visitation schedule with summer breaks to extend not longer than three weeks at a time. Joe McCracken, the licensed professional counselor who had been J.G.M.'s counselor since July 2008, recommended that J.G.M. reside with his father as primary conservator and have standard visitation with his mother. S.M. did not attach summary judgment evidence to her response. The trial court properly granted summary judgment in favor of N.M. We overrule S.M.'s issues one, two, and three.
In issue four, S.M. contends that the trial court erred in granting the summary judgment on the issue of a geographic restriction. There is no geographic restriction in the summary judgment order. The final order contains a provision giving N.M. the right to designate the child's primary residence without regard to geographic location. This provision is authorized by section 153.134 of the Texas Family Code. See Tex. Fam. Code Ann. §153.134 (West 2008). Although S.M. requested a jury trial on the modification petition, she did not ask the trial court to impose a specific geographical restriction. Her pleadings do not raise the issue. See Tex. R. Civ. P. 278; Webb v.Glenbrook Owners Ass'n, Inc., 298 S.W.3d 374, 380 (Tex. App.—Dallas 2009, no pet.). The trial court did not err. Issue four is overruled.
In issue five, S.M. argues the trial court erred in denying her motion to interview J.G.M. in chambers. Section 153.009 of the Family Code requires that the trial judge, upon motion of a party in a non-jury trial or hearing at which conservatorship is at issue, interview a child who is at least twelve years of age in chambers to determine the child's preference for the person with the right to designate his primary residence. See Tex. Fam. Code Ann. § 153.009 (West 2008). S.M. presented her motion on the same date as the hearing on the summary judgment motion. Under the circumstances of this case, the trial court could reasonably conclude S.M.'s motion was not timely and was made for purpose of delay. We overrule issue five.
N.M.'S CROSS-POINT
The divorce decree ordered that the parties' residence be sold. N.M. filed a motion to appoint a receiver to sell the residence. The trial court appointed a receiver. The house was sold to N.M. After a hearing, the trial court signed an order disbursing the funds. N.M. appeals from the trial court's order.
N.M. argues that, in contravention of the divorce decree, the trial court failed to credit N.M. for the payments he made on the house note. N.M. contends the divorce decree, dated September 25, 2007, provides that he is to be reimbursed for payments made on the house note after the date of divorce. He contends that the divorce occurred on April 20, 2007, the date of the divorce hearing, and that he should be reimbursed for the house-note payments he made thereafter from May 2007 until the date of the sale of the house. We do not have a record of the divorce hearing.
S.M. argues the divorce decree is ambiguous. She contends paragraph 3 requires that N.M. be reimbursed for the house payments he made after she moved out of the house, while paragraph 4 requires him to be reimbursed for all payments he made after the date of divorce.
A court should construe a divorce decree "as a whole to harmonize and give effect to the entire decree." Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003). If, when read as a whole, the divorce decree is unambiguous as to the property's disposition, the court "'must effectuate the order in light of the literal language used.'" Id. (quoting Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)). Whether a decree is ambiguous is a question of law. Id. We do not read paragraph 3 as contradicting paragraph 4. The decree provides that N.M. is to be reimbursed or credited for house payments he made after the divorce.
We have reviewed the record, including the divorce decree, the hearing on the motion to disburse, and the trial judge's letter to the parties explaining the calculations for disbursement. The calculations in the letter to the parties, as reflected in the final order, do not credit N.M. with all the house note payments N.M. made after the divorce. We sustain N.M.'s cross-point, we reverse the judgment on this cross-point only, and remand the case to the trial court for correction of the reimbursement amounts to N.M. for his payments on the house note.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
_________________________
DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.