IN THE INTEREST OF v. << (2010)

MEMORANDUM OPINION

Opinion By Justice Myers

In a family law case, the trial court signed an order granting a petition to modify the parent-child relationship filed by the mother of K.T.W., a minor child (Mother).   In four issues, Father challenges the trial court's modification order, claiming there was no material and substantial change in K.T.W.'s circumstances and the modification was not in the best interest of the child.   We reverse the trial court's modification order.

Background and Procedural History

K.T.W. was born on January 4, 2002, to Father and Mother, who were never married.   After Father was adjudicated the father of K.T.W., he was given possession of and access to K.T.W. according to a standard possession order.

On June 5, 2006, Father filed a motion to enforce his possession of and access to K.T.W. after he was allegedly denied access to the child on multiple occasions.   The matter was heard on July 13, 2006, and an enforcement order was signed on August 10, 2006.   The order provided for the exchange of K.T.W. to take place at a “midway point” point between Father's Houston residence and Mother's Dallas residence, which was determined in the order to be the “Centerville, TX to Buffalo, TX area.”   The enforcement order also provided that for parents who, as in this instance, resided over 100 miles apart, Father had the right to “possession of child [on the] 1st, 3rd, and 5th Fridays of each month beginning at 6 p.m. and returning the child the following Sunday by 6 p.m.” On November 6, 2007, Mother filed a petition to modify the child custody arrangement.   Mother alleged that K.T.W.'s circumstances had materially and substantially changed since the entry of the previous order.   She requested that Father's “terms and conditions for access to and possession of the child be modified ․ to reflect visitation in regard to the over 100 mile visitation,” and that, since Father resided in Houston, he should “be responsible for pickup and return for visitation of the child.”   Mother further pleaded that Father's “change of address had caused [her] to incur increased costs.”   Father answered and denied that there had been any “change of circumstances which would be grounds for any modification of the present Orders regarding access and possession.”

The hearing on Mother's motion to modify was held on May 9, 2008, and Mother and Father were the only witnesses who testified.   Mother testified that K.T.W. was now in school and was participating in sports and other extracurricular activities.   Mother noted her son's participation in Taekwondo, and claimed that the weekend visitation was causing K.T.W. to miss “testing with his classmates.”   She added that K.T.W. was able to do a “make up test” on the Friday after each weekend visit with Father, but that K.T.W. had “to test by himself.”   Apart from Taekwondo, Mother did not mention any particular school, extracurricular, or sports-related scheduling conflicts or difficulties.   She also claimed that frequent weekend travel was taking a toll on her son because he was “on the road ․ two and three times a month,” and that there had been occasions when Father had been late for scheduled meetings.   On cross-examination, Mother admitted that there had been no change in circumstances since the entry of the previous order apart from K.T.W. “getting older.”

Father testified that there had been no change in circumstances since the entry of the previous order.   He claimed he was driving the same distance as before, and that he had been late to scheduled pickups on two occasions.   He explained that in both instances he had unsuccessfully attempted to contact Mother by telephone to update her on the status of his arrival.   Father also testified that the existing custody arrangement appeared to be causing K.T.W. no difficulties.   When he was asked on cross-examination whether he believed it was in the child's best interest to be traveling for eight hours per weekend, three times per month, Father replied that the frequent visitation was very much in the child's best interest despite the travel required to accomplish it.   He also insisted that he had “always lived in Houston.”

Following the hearing, the trial court issued an “Order in Suit to Modify Parent-Child Relationship” on July 24, 2008, modifying the parent and child relationship.   Findings of fact and conclusions of law were signed on September 22, 2008.   The trial court's findings of fact and conclusions of law regarding “possession/access” of K.T.W. read, in part, as follows:

The Court finds that the following orders are in the best interest of the child in that Respondent, [Father] lives in the Houston, Texas area and Movant lives [in] ․ Allen, Texas ․ The Court finds that travel time for the child, [K.T.W.], should Respondent, [Father], choose to transport the child by motor vehicle to and from his right of possession as set forth in a Standard Possession schedule would not be in the best interest of the child.   The Court further finds that it is in the child's best interest for visitation to occur only one weekend per month considering the distance and travel time from Movant's residence to Respondent's residence in the Houston area.   The Court further finds that due to sporadic and unpredictable behavior associated with not consistently complying with the pickup and exchange of the child, i.e. being on time and location, for visitation, that pickup and return of the child shall be done by Respondent at Movant's house.   The Court finds that in the alternative, Respondent has the option to purchase airline tickets to fly the child to and from visitation․

After the trial court signed the modification order and the findings of fact and conclusions of law, Father perfected this appeal.   Mother did not file a brief.

Standard of Review

We evaluate most appealable issues in a family law case, including the issues in this case, under an abuse-of-discretion standard.  In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.-Dallas 2009, no pet.);  In re M.M.S., 256 S.W.3d 470, 476 (Tex.App.-Dallas 2008, no pet.).   A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles.  In re A.B.P., 291 S.W.3d at 95.   To determine whether the trial court abused its discretion in a family law case, we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in its exercise of that discretion.   Id. In this case, we conduct the applicable sufficiency review with regard to Father's third and fourth issues because our resolution of these issues is dispositive.

Applicable Law

Section 156.101 of the family code provides that a trial court may modify an order that provides for possession of or access to a child if (1) the modification is in the child's best interest, and (2) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the order's rendition.   See Tex. Fam.Code Ann. § 156.101(a) (Vernon Supp.2009).   The party moving for modification has the burden of proving a material and substantial change in circumstances.  In re A.B.P., 291 S.W.3d at 95;  In re Knott, 118 S.W.3d 899, 902 (Tex.App.-Texarkana 2003, no pet.).

To demonstrate that a material and substantial change of circumstances has occurred, the evidence must show what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify.  In re A.B.P., 291 S.W.3d at 95 (citing In re C.C.J., 244 S.W.3d 911, 919 (Tex.App.-Dallas 2008, no pet.)).  “In other words, ‘the record must contain both historical and current evidence of the relevant circumstances,’ otherwise ‘the court has nothing to compare and cannot determine whether a change has occurred.’ ”  In re A.B.P., 291 S.W.3d at 95 (quoting Zeifman v. Michels, 212 S.W.3d 582, 594 n.2 (Tex.App.-Austin 2006, pet. denied)).   In addition, the best interest of the child is always the primary consideration in determining issues relating to possession of or access to a child.   See Tex. Fam.Code Ann. § 153.002. A court may not modify an order providing custody, possession, or visitation unless the modification is in the best interest of the child.  In re M.M.S., 256 S.W.3d at 476 (citing Tex. Fam.Code Ann. § 156.101).

Discussion

In issues three and four, Father claims the trial court abused its discretion in signing the modification order because the record is devoid of evidence that the modification order was in the best interest of the child.

Pursuant to the modification order, the trial court reduced K.T.W.'s visitation with Father to only one weekend per month.   To support the change, the trial court found the limitation was in K.T.W.'s best interest because of the “distance and travel time” from Mother's residence to Father's residence.   The record of the May 2008 hearing, however, shows that Father had lived in Houston continuously since 2002, when K.T.W. was born.   Moreover, while Mother noted that she had moved to Allen from McKinney, Texas prior to the hearing, she agreed the move actually reduced the distance between her and Father.   Mother also testified regarding alleged hardships in weekend travel and scheduling K.T.W.'s Taekwondo classes, but her testimony showed the Taekwondo lessons had been successfully rearranged to accommodate the visitation schedule.   There is no other evidence regarding any extracurricular, sports, or school-related scheduling conflicts or difficulties.   Mother acknowledged that the only change in K.T.W.'s circumstances since the entry of the previous order was that he had grown older.   As for the “sporadic and unpredictable behavior” noted in the trial court's findings, the evidence showed that Father had been late to pre-arranged pick-ups on two occasions, and that on each occasion he attempted, without success, to contact Mother to update her on the status of his arrival.  “The Texas Legislature has specifically stated that it is the public policy of the state to ‘encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.’ ”  In re M.M.S., 256 S.W.3d at 476 (quoting Tex. Fam.Code Ann. § 153.251).  “To achieve this end, the legislature established a presumption that a standard possession order provides the reasonable minimum possession of a child for a parent named as a joint managing conservator, as in the case here, and such order is in the best interest of the child.”   See In re M.M.S., 256 S.W.3d at 476 (citing Tex. Fam.Code Ann § 153.252).   Given this policy and the absence of any evidence to support a finding that it was in the best interest of K.T.W. to limit his weekend contact with Father to only one weekend per month, we conclude the trial court abused its discretion in modifying the possession and visitation provisions of the previous order.   See M.M.S., 256 S.W.3d at 476-77 (concluding there was no evidence to support court's order limiting father's periods of weekend possession to only once a month).   We therefore resolve Father's third and fourth issues in his favor.   Because of our resolution of these issues, it is unnecessary for us to address Father's first and second issues.   We reverse the trial court's “Order in Suit to Modify Parent-Child Relationship” and remand this cause to the trial court for entry of an order consistent with this opinion.

081416F.P05

LANA MYERS JUSTICE