












 
 
 
 
 
 
                 COURT
OF APPEALS
                  SECOND
DISTRICT OF TEXAS
                           FORT
WORTH
 
                                        NO.
2-04-356-CV
 
IN THE INTEREST OF                                                                            
 
R.T.H.                                                                                               
 
                                              ------------
 
           FROM
THE 231ST DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
Introduction and Procedural
Background




Appellant Steve H. appeals
the trial court=s order
denying his petition to modify an Agreed Order of Parentage[1]
as to R.T.H.  Appellant is a joint
managing conservator of R.T.H. along with R.T.H.=s mother, appellee Cynthia W., who has the exclusive right to
determine R.T.H.=s primary
residence within Tarrant County and contiguous counties.  Appellant did not seek a change in the joint
managing conservator status of the parties; instead, he sought to be named the
joint managing conservator with the exclusive right to determine R.T.H.=s primary residence.  In three
points, appellant contends that the trial court erred by denying his petition
because the retention of appellee as the parent with the exclusive right to
establish R.T.H.=s primary
residence is not supported by the evidence, is contrary to the law, and results
in a possession order that does not protect R.T.H.=s safety and well-being.
All three of appellant=s points are based on his contention that the trial court was
statutorily compelled to grant appellant the relief he sought because he
presented Acredible
evidence . . . of a history or pattern of past or present . . . physical . . .
abuse@ of appellant by appellee.  Tex. Fam. Code Ann. ' 153.004(b) (Vernon Supp. 2004-05). 
Section 153.004(b) of the family code provides that a trial court may not
Aappoint joint managing conservators
if credible evidence is presented of a history or pattern of past or present .
. . physical . . . abuse by one parent directed against the other parent.@  Id. (emphasis added). 
Factual Background




Appellant testified that on
March 19, 2000, appellee came to his apartment and assaulted him by Apunching [him] and grabbing [him] by the neck and scratching [him].@  On cross-examination,
appellant explained that appellee was trying to get in the door, and he was
trying to keep her out.  He pushed on the
door while appellee was in between the doorframe and the door, but he Adidn=t open [the
door] any wider than probably eight inches.@  R.T.H. did not see what
happened because he was in the bathroom at the time with appellant=s then-girlfriend.  Appellant
had instructed her to take R.T.H. to the bathroom because he was afraid
appellee would try to take R.T.H. 
Appellee was arrested and taken to jail. 
A magistrate issued a
protective order against appellee in favor of appellant, and the 324th District
Court of Tarrant County issued a subsequent protective order in which it found
that appellee had committed family violence. 
The district court later vacated the protective order and replaced it
with an agreed protective order that did not contain a finding of family
violence.  
Appellant also testified that
appellee assaulted him two other times, but he did not give any details
regarding these assaults, nor did he say when any of these assaults occurred. 




Appellee testified that when
she went to appellant=s apartment
on March 19, 2000, he tried to shut the door, and she tried to open it.  She was not able to get in the door.  According to appellee, appellant Awas pushing the door back on me, shoving me.@  When asked, ADid you shove back?@ and ADid you hit
back?@, appellee answered AYes.@  As a result, appellee pleaded no contest to
criminal trespass and was placed on deferred adjudication.  In the final social study prepared for the
court, the caseworker noted that appellee Aadmits hitting@ appellant
on March 19, 2000. 
Effect of Family Violence
Finding in Modification Proceeding
Appellant contends that the
trial court=s denial of
his motion to modify is contrary to family code section 153.004, which requires
the trial court to take a history of domestic violence into account when making
conservatorship and possession determinations. 
Tex. Fam. Code Ann. ' 153.004(b).  A single act of
violence or abuse can constitute a Ahistory@ of physical
abuse for purposes of section 153.004(b). 
In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex. App.CAmarillo 2004, no pet.).  But
section 153.004(b) prohibits the trial court from appointing joint
managing conservators Aif credible
evidence is presented of a history or pattern of past or present . . . physical
. . . abuse by one parent directed against the other parent.@  Tex. Fam. Code Ann. ' 153.004(b).  Here, the Agreed Order
of Parentage already named both parties joint managing conservators, and
appellant was seeking only to alter the designation of the parent with the
exclusive right to determine the child=s primary residence.




Family code section 156.101
provides that a trial court may modify an order appointing conservators and
establishing conditions of conservatorship if (1) modification would be in the
best interest of the child and (2) Athe circumstances of the child, a conservator, or other party affected
by the order have materially and substantially changed since the . . . date of
the rendition of the order.@  Id. ' 156.101(1)(A) (Vernon Supp. 2004-05). 
An order deferring adjudication of a joint managing conservator for an
offense involving family violence Ais a material and substantial change of circumstances sufficient to
justify . . . modification of an existing court order.A  Id. ' 156.1045(a) (Vernon 2002) (emphasis added).
Thus, if the trial court had
named appellant as the parent with the exclusive right to determine R.T.H.=s primary residence, evidence that appellee was placed on deferred
adjudication for the March 19, 2000 incident would be sufficient to support the
modification.  But section 156.1045 does
not compel the trial court to modify an existing order in such a
circumstance.  See id.  In a modification proceeding, the best
interest of the child must always be the trial court=s primary concern.  Id. '' 153.002 (Vernon 2002), 156.101; In re Hood, 113 S.W.3d 525,
529 (Tex. App.CHouston [1st
Dist.] 2003, orig. proceeding).




Here, the evidence supports
the trial court=s implied
finding that the denial of appellant=s petition is in R.T.H.=s best interest.[2]  Appellee presented evidence that she had
successfully completed her deferred adjudication community supervision and that
she had attended and successfully completed batterer=s intervention and parenting classes. 
The social study prepared for the court took the March 19, 2000 incident
into consideration in recommending that the parties= current conservatorship designations be retained.  Specifically, the caseworker concluded that
[R.T.H.]
should continue to live with his mother, with his father having generous
visitation.  He has lived with his mother
since his birth and now has a brother in his mother=s
home.  There should be very compelling
reasons to warrant moving a six year old child from the home he has always
lived in.  The allegations made by the
father are not substantial enough to warrant such a move, even though the
father wants to provide a home for him. 
The mother is currently more stable than she may have been in years,
having a husband, new baby, and being able to stay home with the children.
 
Thus, applying the appropriate standard of
review,[3]
we hold that the trial court did not abuse its discretion by denying appellant=s petition to modify the Agreed Order of Parentage. 
 




Conclusion
We overrule appellant=s three points and affirm the trial court=s judgment.
 
 
 
TERRIE LIVINGSTON
JUSTICE
 
PANEL F:    LIVINGSTON, HOLMAN, and GARDNER, JJ.
 
DELIVERED:  September 29, 2005




[1]In
addition to adjudicating R.T.H. the child of Steve H., the order established
terms and conditions of conservatorship of R.T.H.


[2]Appellant
does not challenge the evidence on best interest grounds, arguing instead that
the trial court was statutorily compelled to grant him the relief he requested.


[3]Gillespie
v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (holding that
judgment of trial court as to best interest of child in determining
conservatorship will not be reversed absent abuse of discretion); Seidel v.
Seidel, 10 S.W.3d 365, 368 (Tex. App.CDallas 1999, no pet.)
(reviewing trial court=s
denial of modification for abuse of discretion); see also In re
Z.B.P., 109 S.W.3d 772, 777 n.2 (Tex. App.CFort
Worth 2003, no pet.) (A[L]egal
and factual sufficiency are not independent grounds for review in modification
cases, but are only relevant factors in assessing whether the lower court
abused its discretion.@).


