
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-00-00389-CV


David P. Ditraglia, Appellant


v.


Anna Marie Romano, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 93-15405, HONORABLE MARGARET COOPER, JUDGE PRESIDING


 David P. Ditraglia ("Ditraglia") seeks reversal of the district court's order denying
his motion for modification of joint managing conservatorship as it relates to his daughter, Maya
Rose Ditraglia ("Maya").  We will affirm.


BACKGROUND
	Ditraglia and Anna Marie Romano ("Romano") divorced in 1994.  The original
divorce decree, filed on March 1, 1994, authorized joint managing conservatorship of their two
daughters, Elena Catherine Ditraglia ("Elena") and Maya.  At the time of the divorce, Elena was
nine years old and Maya was five years old.  In addition to joint custody, possession was also split
between the parents, both of whom lived in Austin, where the children attended private school. 
Ditraglia later moved to Wimberley.  On July 1, 1998, pursuant to agreement between the parents,
the district court rendered an order modifying the divorce decree.  The order did not change the
original conservatorship orders, but specified that "Maya Rose Ditraglia will attend Matthews
Elementary School in the Austin Independent School District beginning August 1, 1998," and
provided that when both children attained high school age, they would be able to choose which
high school they would attend.  More precisely, "if the children specifically request a desire to
attend high school in the Wimberley School District, mother will not object and in like manner,
if the children express a specific desire to attend high school in the Austin Independent School
District, then father will not object."  Upon reaching high school age, Elena elected to attend high
school in Wimberley, which necessitated a possessory change from Romano's home to Ditraglia's
household.(1)  Maya, by then a nine-year-old third-grader, became distressed about being separated
from her sister, with whom she had a close relationship.  Ditraglia filed a petition to modify the
prior possession order, conservatorship duties, and child support with respect to both Elena and
Maya.  Romano did not object to the possession modification pertaining to Elena, but contested
the changes as to Maya.  Upon completion of the appropriate hearings, the district court modified
the order as to the possession of Elena, but refused any modification as to Maya.  Ditraglia
appeals.  Ditraglia argues that the trial court abused its discretion when it denied the motion to
modify the prior possession order with respect to Maya.


DISCUSSION
	The Texas Family Code allows the court to modify the terms and conditions of a
joint managing conservatorship if:


(1)(A)  the circumstances of the child or of one or both of the joint managing
conservators have materially and substantially changed since the rendition of the
order; or 


(B)	the order has become unworkable or inappropriate under the existing
circumstance; and


(2)	a modification of the terms and conditions of the order would be a positive
improvement for and in the best interest of the child.



Tex. Fam. Code Ann. § 156.202 (West 1996).  The party moving to modify the joint
conservatorship order has the burden of proving that the requirements have been met.  Considine
v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ).

	Upon review, the district court is given wide latitude in determining the best interest
of the child and will be reversed in such cases only when it has abused its discretion. Gillespie
v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).  A district court abuses its discretion only when
it acts in an unreasonable or arbitrary manner, or when it acts without reference to any guiding
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  This
Court may not reverse for abuse of discretion merely because we disagree with a decision of the
district court.  Id. at 242.

	In its amended findings of fact and conclusions of law, the district court found that:
(1) there had been no material or significant change in circumstances of the children or their
parents; (2) the previous order had not become unworkable or inappropriate, with respect to
Maya; and (3) modification of the order would not be in Maya's best interest.  See Tex. Fam.
Code Ann. § 156.202.  Ditraglia failed to meet his burden of proof as the moving party, with
respect to Maya.  See Considine, 726 S.W.2d at 255.  On appeal, Ditraglia argues that the current
conservatorship order pertaining to Maya has become unworkable or inappropriate and is against
her best interest.


Unworkable or Inappropriate
	The court may modify the terms and conditions of a joint managing conservatorship
if the order has become unworkable or inappropriate under the existing circumstances.  Tex. Fam. 
Code Ann. § 156.202(1)(B).  An order has become unworkable or inappropriate when compliance
with its terms detrimentally affects the health, education, and welfare of the child.  Bohls v. Bohls,
188 S.W.2d. 1003, 1005 (Tex. Civ. App.--Austin 1945, no writ) (modifying possession because
previous order had caused child noticeable nervousness, difficulty in eating and sleeping, and
inability to adequately complete school work).  Courts have also ruled that changed circumstances
that would injuriously affect the child's best interest or create an unstable environment for the
child also may render a possession order unworkable or inappropriate.  See Brown v. Brown, 500
S.W.2d 210, 215-16 (Tex. Civ. App.--Texarkana 1973, no writ) (changing possession because
mother had mentally and physically abused her children); see also Eason v. Eason, 860 S.W.2d
187, 190-91 (Tex. App.--Houston [14th Dist.] 1993, no writ) (holding that child moving nine
times within four years and mother's cohabitation with two men out of wedlock detrimentally
affected child's welfare and justified possession modification).

	Ditraglia has not asserted facts that show detriment to Maya's health, education,
and welfare.  Rather, he presents evidence that the previous order has become unworkable or
inappropriate for him due to additional time and expense incurred since his move to Wimberley. 
Although Maya may miss Elena when they are not together, there is no evidence that those
feelings have detrimentally affected her health or welfare.  She is still doing well in school.  She
appears happy when playing with friends and is now more outgoing in class than when she began
attending Matthews Elementary.  Ditraglia testified in the district court that when he has
possession of Maya, it is necessary for him to wake her at 5:00 a.m., and she is gone from the
house for twelve to fourteen hours on weekdays due to travel between Wimberley and her school
in Austin.  He asserts that it is not in Maya's best interest for her to maintain such a schedule, but
no evidence was presented to show that her routine has detrimentally affected her health or
welfare.

	Furthermore, Ditragila alleges that there was no evidence showing that the current
order was workable; however, this is not the standard.  The party seeking to modify the order has
the burden to show that the present order is unworkable.  Considine, 726 S.W.2d at 255.  "Under
the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error,
but are relevant factors in assessing whether the trial court abused its discretion."  Doyle v. Doyle,
955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet).  Since Ditraglia has not presented
evidence that would impeach the district court's findings, we are bound to accept those findings
as true.  Berner v. Berner, 146 S.W.2d 1017, 1020 (Tex. Civ. App.--Galveston 1941, writ
dism'd).


Positive Improvement and Best Interest of the Child
	Even if the current order had become unworkable, any modification would also
have to be a positive improvement for and in the best interest of Maya.  Tex. Fam. Code Ann.
§ 156.202(2).  A finding that an order is unworkable is not itself enough because, "[t]he best
interest of the child shall always be the primary consideration of the court in determining issues
of conservatorship and possession of and access to the child."  Tex. Fam. Code Ann. § 153.002
(West 1996).  Ditraglia argues that the current order violates public policy because it splits the two
girls and is therefore not in the best interest of Maya.(2)
	Courts have held that, absent clear and compelling reasons, children of the same
marriage should not be separated.  See Beasley v. Beasley, 304 S.W.2d 158, 161 (Tex. Civ.
App.--Dallas 1957, writ ref'd n.r.e.); O. v. P., 560 S.W.2d 122, 127 (Tex. Civ. App.--Fort
Worth 1977, no writ).  However, jurisdictions have split on this matter.  In MacDonald v.
MacDonald, the court ruled that split custody was simply one factor of many to balance when
determining the best interest of the child.  821 S.W.2d 458, 463 (Tex. App.--Houston [14th Dist.]
1992, no writ).  Other factors to consider include: the present and future emotional and physical
needs of the child, the stability of each parent's home, and the present and future emotional and
physical danger to the child.  Id. at 461.  The court of appeals reasoned that the Texas Family
Code "does not require a party to show clear and compelling reasons for splitting custody nor does
it require a party to prove by clear and convincing evidence that a split custody is proper," but it
does always require the courts to consider the best interest of the child as the top priority when
reviewing requests regarding conservatorship, possession, and access to the child.  Id. at 463.  We
agree with this line of reasoning.

	Although the sisters have a close relationship, they are separated from one another
only a few days of the week.  They will still have enough time together to continue their close
relationship with one another.  Maya is a straight-A student in her present school.  Moving a child
in the middle of the school year is generally not in the best interest of the child.  No evidence was
presented to suggest that Romano's home is an unstable environment in which to raise a child, and
there was no indication that Maya would face present or future physical danger by continuing to
live with her mother.

	Furthermore, we note that the 1998 modified order was agreed upon by Romano
and Ditraglia.  That order clearly stated that Maya would attend Matthews Elementary School and
both girls would have the choice of which high school to attend.  Apparently, both parents agreed
to such an order because they believed it would be in the best interest of their children to choose
for themselves where to attend high school.  Inherent in such an agreement is the possibility that
the girls would be separated by the time they reached high school.

	Ditraglia has not presented evidence to controvert the trial court's finding that
changing possession of Maya would not be a positive improvement or in her best interest.  We do
not find that the trial court abused its discretion in refusing to change Maya's primary residence
from her mother's home to her father's home.


CONCLUSION
	Having found that the district court did not abuse its discretion in refusing to modify
the order in regards to Maya, we affirm the district court's judgment.



  
					Mack Kidd, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed:   November 30, 2000

Publish


1.        Ditraglia had remarried, and he and his new wife were willing to have Elena live with them
while she attended high school.
2.        We note that Maya turned ten on October 20, 2000.  When a "child is ten years of age or
older, the child may, by writing filed with the court, choose the managing conservator, subject
to the approval of the court."  Tex. Fam. Code Ann. § 153.008 (West Supp. 2000).  Furthermore,
in a non-jury trial, "when the issue of managing conservatorship is contested, on the application
of a party, the court shall interview a child ten years of age or older. . . .  Interviewing a child
does not diminish the discretion of the court."  Id.  § 153.009(b) (West Supp. 2000).


on 1941, writ
dism'd).


Positive Improvement and Best Interest of the Child
	Even if the current order had become unworkable, any modification would also
have to be a positive improvement for and in the best interest of Maya.  Tex. Fam. Code Ann.
§ 156.202(2).  A finding that an order is unworkable is not itself enough because, "[t]he best
interest of the child shall always be the primary consideration of the court in determining issues
of conservatorship and possession of and access to the child."