Sherry Lynn Diers v. Gary Wayne Diers ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-97-00610-CV



Sherry Lynn Diers, Appellant

v.

Gary Wayne Diers, Appellee



FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT NO. 93V-174, HONORABLE DAN R. BECK, JUDGE PRESIDING

Following a bench trial, the trial judge modified the conservatorship orders in the Diers' final decree of divorce from a sole managing conservatorship to a joint managing conservatorship and gave Mr. Diers the exclusive right to establish the primary residence of their minor child. We will affirm the trial-court judgment.

Background and Procedural History

Sherry Lynn Diers and Gary Wayne Diers divorced October 3, 1993. During their marriage, Sherry and Gary had one child, Garrett Wayne, born in October of 1989. The original decree of divorce appointed Sherry sole managing conservator and Gary possessory conservator. As part of the decree of divorce, Sherry and Gary agreed that the primary residence of Garrett would be with Sherry and that Gary would have possession of Garrett under a standard possession order. The parties further agreed that Gary would pay $1,000 per month in support and provide health insurance for Garrett. The parties also agreed that Sherry and Garrett would live in Fayette County or its contiguous counties, so long as Garrett was entitled to support. Gary and Sherry further agreed that if Sherry moved from Fayette County or its contiguous counties, she would be obligated to pay the reasonable cost of transportation for access and visitation periods with Gary.

For a brief period immediately following the divorce, Gary and Sherry amicably managed their respective possessions of Garrett. Eventually, however, Gary and Sherry's ability to interact deteriorated, and on August 18, 1995, Gary filed a Motion to Modify in Suit Affecting Parent-Child Relationship seeking appointment as the sole managing conservator or in the alternative, appointment as a joint managing conservator. Following a bench trial on February 24, 1997, the trial court signed an order on September 16, 1997 which granted Gary's motion. The order appointed Gary and Sherry joint managing conservators of Garrett; ordered that Garrett's primary residence shall be in Fayette County; gave Gary the exclusive right to establish the primary physical residence of Garrett; and ordered Sherry to pay child support of $372.18 per month. Sherry brings this appeal asserting five points of error.

Discussion and Holdings

In a modification proceeding, the trial court may modify a sole managing conservatorship to a joint managing conservatorship if the court finds that 1) the circumstances of the child or sole managing conservator have materially and substantially changed since the rendition of the original order; 2) the retention of a sole managing conservatorship would be detrimental to the welfare of the child; and 3) the appointment of the parents as joint managing conservators would be a positive improvement for and in the best interest of the child. Tex. Fam Code Ann. § 156.104(a) (West 1996). Because there were no findings of fact or conclusions of law requested or filed, it is implied that the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). When the implied findings are supported by the evidence, the appellate court must uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We review the trial court's determination of conservatorship under an abuse of discretion standard. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Doyle, 955 S.W.2d at 479 (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)).

In her first point of error, Sherry contends that the trial court erred by applying "an erroneous standard" in modifying custody and appointing Gary and Sherry joint managing conservators. Sherry contends that the trial court erroneously applied section 156.101 ⁽¹⁾ of the Family Code rather than section 156.104. We note that the only indication that the trial court applied section 156.101 is a letter from the trial court to counsel regarding his proposed ruling. The trial court's letter does not constitute findings of fact and conclusions of law. Mondragon v. Austin, 954 S.W.2d 191, 193 (Tex. App.--Austin, 1997, pet. denied). Even if this Court considered the trial court's letter, we are not bound by an incorrect statement of the law. Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App.--Beaumont 1996, writ denied) (trial court's incorrect reason for its decision is not reversible error); Ace Drug Marts, Inc. v. Sterling, 502 S.W.2d 935, 940 (Tex. Civ. App.--Corpus Christi 1974, writ ref'd n.r.e.). A trial court cannot abuse its discretion if it reaches a correct result, even for the wrong reasons. Hawthorne, 917 S.W.2d at 931; Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App.--Dallas 1992, no writ). We overrule point of error one.

In her second point of error, Sherry challenges the legal and factual sufficiency of the evidence to support the trial court's finding that there was a "material and substantial change" to support the appointment of Gary as a joint managing conservator. We note, however, that Sherry's own pleadings allege a material and substantial change had occurred. Although Sherry makes both legal and factual sufficiency challenges to the evidence, such challenges are not independent grounds of error under an abuse of discretion standard, but rather are relevant factors in assessing whether the trial court abused its discretion. Doyle, 955 S.W.2d at 479. Accordingly, we will construe her sufficiency of the evidence points as asserting an abuse of discretion and review the evidence as it is relevant to whether the trial court abused its discretion in modifying the original decree.  

According to the evidence, the primary issue regarding conservatorship was Gary and Sherry's increasing inability to communicate and cooperate regarding Garrett's care and activities. Both Gary and Sherry testified that immediately after the divorce, they were able to communicate regarding their respective possessions of Garrett. Sherry testified that by late spring of 1995, however, they were unable to communicate or agree on "nothing" regarding Garrett. Since the time of the divorce, Gary and Sherry could not agree on Garrett's participation in sports, clothes he should wear, or his religious activities. According to Gary, Sherry avoided talking with him about Garrett's activities and schedule.

At the time of the divorce, Gary and Sherry both lived in La Grange. During the summer of 1995, Sherry moved to Sealy, which is an approximately 50-55 minute drive from La Grange, even though she had worked in La Grange for three years and continued working there despite her move. Although allowed by the original decree, the move to Sealy created greater distance for Gary to travel to visit Garrett and to participate in his activities. After Gary filed his motion to modify, Sherry enrolled Garrett in activities such as soccer, swimming lessons and karate in Bellville, Katy and Houston, which further hindered Gary's ability to be involved in Garrett's life. Gary testified that the activities in which Garrett participates in other cities--baseball, basketball, soccer and karate--are available in La Grange. According to Gary, Garrett was required to travel almost 800 miles a month. Before moving to Sealy, Garrett had lived in La Grange the first four years of his life. The move to Sealy also thwarted Garrett's frequent visitation with his paternal grandmother who lives five miles from Gary.

Sherry testified that at the time of the divorce she had a furnished house, no debt on her vehicle, and approximately $5,000 in debt on furniture. Sherry also testified that she earns approximately $28,000 per year and at the time of trial owed approximately $45,000 in credit card debt. Gary earns between $70,000 and $80,000 a year.

The trial court acting as fact-finder is the sole judge of the credibility of the witnesses and is permitted to believe or disbelieve any evidence. Burtch v. Burtch, 972 S.W.2d 882, 888-89 (Tex. App.--Austin 1998, no pet.). The trial court could have concluded based on the evidence that Sherry's move, the increased travel for Garrett, and the increased hostility and inability of Gary and Sherry to cooperate and communicate after an initial period of amicably communicating, constituted a substantial and material change of circumstances. Accordingly, given the evidence presented and the deference given to a trial court's determinations of credibility and demeanor, we cannot conclude the trial court abused its discretion in finding that there were substantial and material changes in Garrett's or Sherry's circumstances since the rendition of the original decree. We overrule her second point of error.

In her third point of error, Sherry challenges the sufficiency of the evidence to support the trial court's conclusion that appointing Gary a joint managing conservator would be a positive improvement for Garrett. According to the evidence, Gary has a close relationship with Garrett. Gary is very involved with Garrett's sports and church activities. Although Gary travels with his work, he is always within two hours of La Grange. Gary's mother lives nearby and is able to assist Gary in caring for Garrett. Gary also testified that he has several family members and other people in La Grange on whom he can rely to help care for Garrett if necessary. Because Sherry works in La Grange, if Garrett lives in La Grange and participates in sports and other extracurricular activities in La Grange without having to travel to Bellville and Houston, Garrett will have less travel time between periods of the parties' possessions and both parents will be able to participate easily in his activities. Given the evidence presented and the deference given to a trial court's determinations of credibility and demeanor, we are unable to say the trial court abused its discretion in finding that appointing Gary a joint managing conservator would be a positive improvement for Garrett. Point of error three is overruled.

Sherry argues in her fourth point of error that there is no evidence that the retention of sole managing conservatorship would be detrimental to Garrett. Given the distance for Garrett to travel to see Gary and the distance to many of Garrett's activities, even from his home with Sherry in Sealy, the court could decide Garrett will travel much less if he lives with Gary in La Grange. According to the evidence, Gary and Sherry's exchanges of Garrett are plagued with disputes. For example, Sherry required that she, Sherry's teenage son, or her partially handicapped mother who lives in Houston, must supervise Gary when he picked up Garrett at school. In four years Gary had never failed to pick up Garrett or arrange for someone to do so. Each time, Sherry or her family member would change Garrett's clothes and retain his books and homework. Once he picked up Garrett when Sherry was late and she raced her car up a one-way street to catch him, blocked Gary's car, yelled at Gary, and took Garrett's backpack. Gary testified that Sherry would change Garrett's clothes into something inappropriate, she would not send other clothes with him, and she would not allow Garret to take his backpack and homework with him to Gary's residence. As a result, she prevented Gary from helping or being involved with Garrett's school work. Gary also testified that Sherry would not keep Gary adequately informed regarding Garrett's activities. She refused to tell him about the school open house or other events, refused to return his calls and would not relay information he requested about Garrett. As the judge of the credibility and demeanor of the witnesses, the trial court could have concluded that Gary wanted to be actively involved in Garrett's life, that Garrett should not be deprived of a relationship with his father, and that Sherry's actions were calculated to hinder Garrett's relationship with his father. See Furrer v. Furrer, 267 S.W.2d 226, 227 (Tex. Civ. App.--Austin 1954, no writ) (best interest of the child is to know and be with each of its parents). The trial court could have concluded that the problems between Gary and Sherry were negatively impacting Garrett. Under the evidence presented, we cannot say the trial court abused its discretion in finding that retention of sole managing conservatorship would be detrimental for Garrett. We overrule Sherry's fourth point of error.

Conclusion

Because we have overruled each of Sherry's points of error, we do not reach her conditional point of error. ⁽²⁾ We affirm the trial-court judgment.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Jones and Yeakel

Affirmed

Filed: July 15, 1999

Do Not Publish

1. Section 156.101(a) provides that the court may modify an order that designates a sole managing conservator of a child of any age if:

(1) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; and

(2) the appointment of the new sole managing conservator would be a positive improvement for the child.

Tex. Fam. Code Ann. § 156.101(a) (West 1996).

2. Even if the parties stipulated to an agreement, as Sherry contends, ordering an injunction as a term or condition of conservatorship remains a decision for the trial court.

ty and demeanor, we are unable to say the trial court abused its discretion in finding that appointing Gary a joint managing conservator would be a positive improvement for Garrett. Point of error three is overruled.

Sherry argues in her fourth point of error that there is no evidence that the retention of sole managing conservatorship would be detrimental to Garrett. Given the distance for Garrett to travel to see Gary and the distance to many of Garrett's activities, even from his home with Sherry in Sealy, the court could decide Garrett will travel much less if he lives with Gary in La Grange. According to the evidence, Gary and Sherry's exchanges of Garrett are plagued with disputes. For example, Sherry required that she, Sherry's teenage son, or her partially handicapped mother who lives in Houston, must supervise Gar