Cindy Sue (Smith) Bryan v. Horace Dale Smith ( 1994 )

CV3-435 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-435-CV



CINDY SUE (SMITH) BRYAN,

APPELLANT

vs.





HORACE DALE SMITH,

APPELLEE

FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT

NO. 11,188, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING

PER CURIAM

Cindy Sue (Smith) Bryan (appellant) appeals from the trial court's order in a suit affecting the parent-child relationship. Tex. Fam. Code Ann. § 14.08(c)(1) (West Supp. 1994) (Family Code). The order, resulting from a motion to modify filed by Horace Dale Smith (appellee), changed the managing conservator of Misti L. Smith and Carie R. Smith from appellant to appellee. Appellant brings two points of error: (1) the trial court abused its discretion in naming appellee as the managing conservator; and (2) the trial court abused its discretion in overruling appellant's uncontested and verified motion for new trial. We will reverse the trial court's judgment.

An order concerning the conservatorship of minor children may be modified only if: (1) there has been a material and substantial change since rendition of the prior order or decree sought to be modified; (2) retention of the present managing conservator would be injurious to the welfare of the children; and (3) the appointment of a new managing conservator would be a positive improvement for the children. Fam. Code § 14.08(c)(1). A trial court has broad discretion in deciding the issue of modification and its judgment will not be reversed except on a clear showing of an abuse of discretion. Doyen v. Doyen, 713 S.W.2d 370, 372 (Tex. App.--Beaumont 1986, no writ); Davis v. Duke, 537 S.W.2d 519, 521 (Tex. Civ. App.--Austin 1976, no writ). Nevertheless, all three prongs must be proven.

In a motion to modify conservatorship, the movant has the burden of proof to produce sufficient evidence to convince the trier of fact that a modification would be justified. See Ogrydziak v. Ogrydziak, 614 S.W.2d 474, 477 (Tex. Civ. App.--El Paso 1981, no writ); Kelly v. Novak, 606 S.W.2d 25, 30 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ). The burden of proof is by a preponderance of the evidence. See Fam. Code § 11.15(a) (West 1986); Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d 559, 560-61 (Tex. App.--Dallas 1982, no writ).

When no findings of fact or conclusions of law are requested or filed, we imply that the trial court made all necessary findings in support of its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). When a statement of facts is brought forward, implied findings may be challenged by legal and factual sufficiency points in the same way as written findings. Roberson, 768 S.W.2d 280. In determining a legal sufficiency question, an appellate court must consider only the evidence and inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If more than a scintilla of evidence supports the finding, the no-evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

As a preliminary matter, we note that appellee has not filed a reply brief. We may accept as correct any statement appellant makes in her brief concerning the facts or the record. Tex. R. App. P. 74(f). ⁽¹⁾ In her first point of error, ⁽²⁾ appellant argues that there was no evidence to support finding that a material change in circumstances had occurred such that her remaining managing conservator would harm the children, and that naming appellee as the sole managing conservator would be a positive improvement. ⁽³⁾ For these reasons, she argues that the trial court erred in modifying conservatorship.

We must agree. The record lacks even a scintilla of evidence to support the required findings to justify changing the managing conservator. Both parties admit to a pattern of bickering and petty harassment between them, with friends and relatives joining the fray. The parties agree that visitation problems have occurred. However, there is no evidence in the record that appellant's retention as managing conservator is harmful to the children. Further, the record contains no evidence that a change in conservatorship would be a positive improvement for the children. Appellant's re-marriage by itself cannot constitute harm or demonstrate that a change in conservatorship would be an improvement. See Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ).

Because there is no evidence to support the necessary findings required by section 14.08, we sustain appellant's first point of error. See Considine, 726 S.W.2d 256 (sustaining a no-evidence point and reversing trial court's order changing managing conservator).

In her second point of error, appellant contends that she was denied due process when the trial court overruled her motion for new trial because her motion for new trial was timely filed and introduced newly discovered evidence. In view of our disposition of appellant's first point of error, we need not discuss the second one.

We reverse the judgment of the trial court modifying the managing conservatorship and render judgment that the motion to modify be overruled.

Before Justices Powers, Aboussie and B. A. Smith

Reversed and Rendered

Filed: November 23, 1994

Do Not Publish

1. ¹  Even so, we have thoroughly examined the statement of facts and find nothing to contradict appellant's statements.

2. ²  Although appellant labels her first point of error as "abuse of discretion," the bulk of her argument is given in terms of "no evidence." Briefing rules are to be liberally construed. See Tex. R. App. P. 74(p). We will construe appellant's point to be that no evidence supports the implied findings.

3. ³  Appellant has waived one complaint about which she argues. She contends that the judge failed to consult with a child twelve or older. Fam. Code § 14.07(c) (West 1986). The statement of facts, however, shows that both parties acquiesced in the judge's decision to refrain from questioning the child. He stated that he would if either party insisted, but he did not want to. Neither party insisted.