Opinion
No. 05-08-00623-CV
Opinion issued June 1, 2009.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-50087-06.
MEMORANDUM OPINION
W.R. (Father) appeals the trial court's order denying his petition to modify the agreed divorce decree and name him primary managing conservator with the exclusive right to designate the primary residence of the children, sixteen-year-old K.N.R. (Son) and fourteen-year-old V.M.R. (Daughter). In four issues, Father contends the trial court abused its discretion by relying on family code section 156.102 instead of section 156.101 to make its determination, the evidence is legally and factually insufficient to support the trial court's order, and the trial court abused its discretion by ordering Father to pay Mother's attorney's fees. For the following reasons, we affirm.
Father and Mother signed a mediated settlement agreement (MSA) on June 9, 2006 and were divorced in July 2006. The agreed divorce decree appointed Father and Mother joint managing conservators of the children and designated Mother as the parent with exclusive right to designate the primary residence of the children. Approximately four months after Father and Mother signed the MSA, Father filed a petition to modify the parent-child relationship asking the trial court to declare him the parent with the exclusive right to designate the residence of the children. As required by section 156.102 of the family code, Father attached an affidavit to support his allegation that the circumstances of the children had materially and substantially changed since rendition of the decree. See Tex. Fam. Code Ann. § 156.102 (Vernon 2008). In the affidavit filed in support of his October 6, 2006 petition to modify, Father stated he had "serious and immediate concerns about [the children's] physical and emotional health and well-being while in [Mother's] care, custody, and control." Father related incidents he claimed caused him concern about Mother's mental stability. He also attached V.M.R.'s affidavit dated August 31, 2006 in which she stated she wanted to live with Father. Mother filed a response denying Father's allegations.
On October 16, 2007, the parties filed a Rule 11 agreement in which they agreed to reset the hearing to November 14, 2007. On November 5, 2007, Father filed a first amended petition to modify reiterating his request for relief and adding allegations that the children had filed affidavits stating that they preferred to live with him. This time, however, Father's amended petition stated he sought relief under section 156.101. See Tex. Fam. Code Ann. § 156.101 (Vernon 2008).
After a two-day hearing, the trial court denied Father's petition to modify and ordered he pay Mother's attorney's fees in the amount of $15,000. Father filed a motion for new trial, which the trial court denied. This appeal followed.
We review a trial court's decision to deny or grant a petition to modify a prior order of conservatorship under an abuse of discretion standard. See In re B.N.B., 246 S.W.3d 403, 405 (Tex.App. 2008, no pet.); Peck v. Peck, 172 S.W.3d 26, 32-33 (Tex.App. 2005, pet. denied). Because the trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel forces, powers, and influences that cannot be discerned by merely reading the record, the court has wide latitude in determining the best interests of minor children. See Tex. Fam. Code Ann. § 153.002 (Vernon 2008) ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child"); In re A.R. 236 S.W.3d 460, 479-80 (Tex.App. 2007, no pet.) (citing In the Interest of T —, 715 S.W.2d 416, 418 (Tex.App. 1986, no writ)); Peck, 172 S.W.3d at 33. The trial court abuses its discretion if it acts without reference to any guiding rules or principles, in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Peck, 172 S.W.3d at 33.
In his first two issues, Father contends the trial court abused its discretion when it applied the wrong provision of the family code when ruling on his petition to modify. Father concedes his original petition to modify was filed under section 156.102 which, under the facts of this case, requires Father to show his children's present environment may endanger their physical health or significantly impair the children's emotional development. Nevertheless, Father contends that, because he filed an amended petition to modify under section 156.101, he was required to show only that the modification was in the best interest of the children. He argues the trial court "disregarded the stated preferences of both teenage children . . . and based [its] ruling not on a preponderance of the evidence as to the best interests of the children, but instead demanded that [Father] meet a higher standard of proof based upon the Court's own continuing reliance upon its ongoing erroneous interpretation of Section 156.102."
At the hearing, the trial judge stated he believed section 156.102 controlled this case because Father initially filed his petition within one year of the signing of the MSA. The trial court explained that policy disfavors petitions to modify filed within one year of a final decree absent extraordinary circumstances because it is difficult on the children, emotionally difficult on all of the parties, and raises the costs of litigation. The trial court further noted it did not believe a party should be allowed to file a petition to modify within one year, prolong the final hearing until after the year has passed through procedural maneuvering, and then amend his petition to seek relief under a different statutory provision that provides a lower burden of proof because to do so would undermine the legislative intent in enacting the statute. Although the trial court stated on the record that Father had not carried his burden under section 156.102, it also concluded Father did not carry his burden under section 156.101. The trial court acknowledged the affidavits of the children expressing their desire to live with Father, but ultimately concluded it was "not in these children's best interest that this motion to modify be granted."
After reviewing the record in this case, we conclude we need not decide whether a party, who files a motion or petition to modify under section 156.102 and, one year later, files an amended motion or petition under section 156.101, may prevail by showing the modification was in the best interest of the children and not that the child's present environment may endanger his physical health or significantly impair the child's emotional development. In this case, the written order denying Father's petition to modify does not state which provision the trial court considered when ruling on Father's petition. Although the trial court stated on the record that Father had not carried his burden under section 156.102, the court also stated Father did not carry his burden under section 156.101. Because the record shows that the trial court considered both provisions when ruling on Father's petition, we conclude Father's complaint-that the higher section 156.102 standard was erroneously applied instead of the lower section 156.101 standard-lacks merit. We overrule issues one and two.
In his third issue, Father complains the evidence is legally and factually insufficient to support the trial court's order. Father contends he offered more than sufficient evidence to support a modification under section 156.101. Because the trial judge denied Father's petition under both sections 156.101 and 156.102, we will review the legal and factual sufficiency of the evidence under section 156.101. If we conclude that the evidence is sufficient to support the trial judge's denial of Father's petition under section 156.101, which carries the lesser burden of proof, we need not consider the evidence under the more heightened burden of section 156.102.
When, as in this case, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings to support the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); In re B.N.B., 246 S.W.3d at 406. If a reporter's record is included in the record on appeal, the implied findings may be challenged for legal and factual sufficiency. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam); In re B.N.B., 246 S.W.3d at 406. Legal and factual insufficiency are not independent grounds for asserting error; they are merely relevant factors in assessing whether a trial court abused its discretion. In re B.N.B., 246 S.W.3d at 405; Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App. 2004, no pet.). In a legal sufficiency review, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In a factual sufficiency review, we view the evidence in a neutral light and ask whether the evidence supporting the verdict is so outweighed by the contrary evidence as to render the verdict manifestly unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Under section 156.101, Father was required to prove the modification would be in the best interests of the children. Tex. Fam. Code Ann. § 156.101. In addition to proving the modification would be in the best interests of the children, Father had to prove either (1) the circumstances of the children had materially and substantially changed, (2) the children were at least 12 years of age and had filed in writing their preference to live with him, or (3) Mother's voluntary relinquishment of the children to him. See Tex. Fam. Code Ann. § 156.101(1)-(3). We agree Father produced evidence of at least one of the additional factors when he filed the children's affidavits in which they stated their preference to live with him. Thus, we need only address whether Father established the modification would be in the best interest of the children.
In determining whether a modification is in a child's best interest, the trial may consider a number of non-exclusive factors. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see In re J.A., 109 S.W.3d 869, 876-77 (Tex.App. 2003, pet. denied). These include (1) the child's desire, (2) the child's emotional and physical needs now and in the future, (3) any emotional and physical danger to the child now and in the future, (4) the parental abilities of the individual seeking primary possession, (5) the programs available to assist the individual to promote the child's best interest, (6) the plans for the child by the individual seeking primary possession, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. Proof of best interest is not limited to these specific factors, nor do all factors always apply in every case. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The focus is on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App. 1995, no writ). In the specific context of modification of conservatorship, courts also consider the child's need for stability and the need to prevent constant litigation regarding conservatorship of the child. In re M.P.B. 257 S.W.3d 804, 813-14 (Tex.App. 2008, no pet.). The trial court is in the best position to observe the witnesses and their demeanor and, therefore, is given great latitude when determining the best interests of the children. Garner v. Garner, 200 S.W.3d 303, 310 (Tex.App. 2006, no pet.). The trial court does not abuse its discretion if there is some probative and substantive evidence to support the trial court's decision or if the evidence is conflicting. In re M.J., 227 S.W.3d 786, 793 (Tex.App. 2006, pet. denied). At the hearing, the trial court sustained objections to testimony or evidence relating to events occurring before the June 2006 MSA was signed. Because Father does not challenge this ruling, we look only to the evidence in the record regarding events occurring after that date. Father, Mother, both children, and several deposition witnesses testified. According to Father, there were "multiple incidents" that caused him to file the petition to modify, including that Mother told the children Father was abusive and an alcoholic and she would not have enough money to live on if the children went to live with Father. In addition, Father said he became concerned when Daughter called him while he was in Las Vegas on a golfing trip, "about 9:00 o'clock Las Vegas time, which makes it about 11:00 o'clock Dallas time." Daughter said she and Mother had an argument and, although Daughter wanted to spend the night at her friend's house, Mother would not let her do so. Father admitted he told Daughter "if she won't let you go [to the friend's house] and you're worried, call 911." Mother asked to speak to Father and, while they were talking to him, Daughter ran to the friend's apartment. Father then spoke to the friend's father around 12:30 or 1:00 a.m. Dallas time to say Daughter had his permission to spend the night at their apartment.
Father also testified Mother had enrolled the children in a free lunch program at school and they did not like it because they had to stand in a different line in the cafeteria. He felt the children had become "scapegoats" for Mother's mental issues which he described as being "bipolar" and "off her meds." He conceded he had told "anybody that asks" that Mother is bipolar and off her meds. He also admitted telling the children their mother had been diagnosed as bipolar. Father denied being an alcoholic. He described Son as bright but lacking in "structure or incentive to do well in school under the current living conditions" and Daughter as fairly intelligent and strong willed. Because Father believed Mother posed a danger to the children, he agreed to pay for a "psych evaluation."
Mother was concerned about the children living with Father because Father traveled frequently and she believed he had a drinking problem as well as anger issues. She did not believe Father would hurt the children physically but thought that emotionally "there could be some consequences." In addition, Mother was concerned because Father did not make any of the children's appointments with doctors, dentists, and therapists and was not used to getting them to their appointments. In fact, he asked Mother not to make any appointments while the children were with him. Mother admitted having an argument with Daughter that resulted in Daughter running to her friend's apartment and spending the night. She conceded she and Daughter would often "butt heads" but said it was because they were so much alike and had many common interests. Mother said she loved both her children equally.
Mother told the court the most recent diagnosis she received from a mental healthcare professional was that she suffered from "adjustment disorder" due to the "life changes" she was going through. In particular, she noted going through the divorce, changing jobs, and moving had created stress in her life. She recently moved the children and herself to an apartment not far from Father's house so the children were within walking distance of him. She described it as a "nice situation for everybody" and believed they all were doing better in the months prior to the hearing. Mother admitted she attended Al-Anon meetings to help her deal with Father's issues, went to counseling, and prayed for support and guidance.
Daughter told the trial court she signed the affidavit to live with Father because she felt it would be "an easier life" and she would not have to deal with Mother "blaming [her] for stuff." Daughter said Mother was not happy. Daughter admitted Mother had not done anything to physically hurt her but said she now had a closer relationship with Father. She was angry with Mother over the incident at her friend's apartment but conceded she did not talk to Mother about it. During the hearing, Son told the court Mother always had time to spend with the children and his relationship with her was very close. He signed an affidavit requesting to live with Father because he wanted a chance to spend time with Father and get close to him. Son never felt he or his sister were in danger or threatened while with Mother. They were treated equally and fairly. Son felt comfortable living with Mother and described it as "a nice life."
Dr. Barry Coakley was appointed by the trial court to conduct a psychological evaluation of Mother. According to Dr. Coakley's initial report, no previous diagnosis by any of Mother's doctors or counselors indicated she was bipolar. Although one doctor's records mentioned a bipolar diagnosis, nothing in that doctor's record supported it. Dr. Coakley met several times with Mother in conducting his parenting assessment. Dr. Coakley did not have any data that concerned him or led him to having concerns. In his subsequent report, amended after receiving additional records and testimony, he noted Mother's history contained data that supported a potential bipolar diagnosis and data that did not. Dr. Coakley was not able to state whether he believed Mother was bipolar because to do that, he would "have to have full access to [Father], and I would have to assess the validity of what he tells me, and the only way I can do that is to do an assessment on [Father], also." He thought "it would be a very good idea for both of these parents to be willing to deal with the concerns of the other . . . that's the only way this family is ever gonna be able to function." Dr. Coakley finished by stating
Mom seems to be coping reasonably well with this process, and this is an extremely stressful process. I don't see anything that I'm concerned about in how — in Mom's demeanor these days . . . So, Mom seems — seems okay.
After hearing this and other evidence, the trial court denied Father's petition to modify. We have reviewed the entire record and have considered the facts and circumstances of this case. We have considered, among other things, Mother's parenting abilities, the stability of children's home, and whether the record shows any evidence of emotional and physical danger to the children now and/or in the future. In addition, we have reviewed the record to determine whether there is evidence to reflect any acts or omissions by Mother to indicate the existing parent-child relationships are not proper ones. After doing so, we cannot conclude the trial court abused its discretion in denying Father's petition to modify. See In re M.J., 227 S.W.3d at 793 (trial court does not abuse its discretion if there is some probative and substantive evidence to support trial court's decision or if evidence is conflicting). Because we conclude the trial court did not abuse its discretion in denying Father's petition under section 156.101, we need not consider the evidence under the more heightened burden of section 156.102. We overrule Father's third issue.
In his final issue, Father contends the trial court abused its discretion in ordering him to pay Mother's attorney's fees of $15,000 as a sanction under section 156.005 because his petition to modify was neither frivolous nor lacking in basis in law or fact.
With respect to attorney's fees, the trial court's order states:
Attorney's Fees
The Court finds that $15,000.00 is a reasonable and necessary attorney fee for [Mother], in this action and should be paid by [Father].
THEREFORE, IT IS ORDERED that good cause exists to award [Mother] judgment in the amount of $15,000.00 for attorney's fees incurred by [Mother], with interest at six (6%) percent per year compounded annually from the date the judgment is signed until paid. The judgment, for which let execution issue, is awarded against [Father]. [Father] is ORDERED to pay the attorney's fees judgment in the amount of $15,000.00 to [Mother] at [Mother's address] by cash, cashier's check, or money order on or before the thirtieth (30th) day after entry of this order. [Mother] may enforce this judgment by any means available for the enforcement of a judgment for debt.
The trial court may award reasonable attorney's fees and costs in a family law case. See Tex. Fam. Code Ann. § 106.002 (Vernon 2008) ("In a suit under this title, the court may render judgment for reasonable attorney's fees and expenses. . . ."); Diamond v. San Soucie, 239 S.W.3d 428, 431 (Tex.App. 2007, no pet.). An award of attorney's fees in a suit affecting the parent-child relationship is within the discretion of the trial court. See Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). The trial court does not abuse its discretion when an award of attorney's fees is supported by the evidence. Tull v. Tull, 159 S.W.3d 758, 760 (Tex.App. 2005, no pet.).
At trial, Father did not object to or controvert the clear and direct testimony of Mother's attorney regarding the amount, necessity, or reasonableness of the fees. Likewise, on appeal, Father does not challenge the reasonableness of the attorney's fees awarded nor does he challenge the award under section 106.002. Rather, he only claims the trial court abused its discretion in sanctioning him for a frivolous filing.
After reviewing the record, we cannot conclude the trial court abused its discretion in awarding Mother $15,000 in attorney's fees. Although the trial court discussed sanctions and whether Father filed a frivolous pleading, nothing in the trial court's order states the attorney's fees award was a sanction nor does the order reference section 156.005. Mother's counsel testified, without objection, that he was a licensed attorney, he was familiar with the charges for a family law practitioner in the area, and believed his hourly rate of $200 was a reasonable rate and was "customarily charged" in Collin County. He stated Mother owed him $19,500 and offered, again without objection, two exhibits: his fee agreement signed by Mother and a detailed billing statement. Father's attorney did not cross examine Mother's attorney or offer rebuttal on the subject of attorney's fees. Furthermore, the evidence shows Mother was named the primary managing conservator with the exclusive right to designate the primary residence of the children in the divorce decree. Within several months, Father filed a petition to modify but ultimately did not prevail. Thus, Mother was the prevailing party. Under these facts and circumstances, we cannot conclude the trial court abused its discretion in ordering Father to pay Mother's attorney's fees. See In re M.A.N.M., 231 S.W.3d 562, 566 (Tex.App. 2007, no pet.) (in context of attorney's fees, prevailing party is typically party who either successfully prosecutes action or successfully defends against it, prevailing on main issue, citing Jakab v. Gran Villa Townhouses Homeowners Ass'n, Inc., 149 S.W.3d 863, 867 (Tex.App. 2004, no pet.)). We overrule Father's final issue.
We affirm the trial court's order.