
NO. 07-04-0559-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL A



JANUARY 30, 2006

______________________________



IN THE INTEREST OF M. W. S. H., A CHILD

_________________________________



FROM THE 316
TH
 DISTRICT COURT OF HUTCHINSON COUNTY;



NO. 32,711; HONORABLE JOHN LAGRONE, JUDGE

_______________________________





Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION
 

Appellant, Donald Scott Lowder, appeals an order denying his petition for modification of conservatorship granting Mandy Michelle Hanifin, appellee, the right to designate the primary residence of M.W.S.H., a child.   We affirm the trial court’s order.

Background

Lowder and Hanifin met during high school and dated for approximately four months.  During their dating relationship, Hanifin became pregnant and gave birth to M.W.S.H. in 1995; however, it was not determined that Lowder was the father until 1997.  In October 1998, an order was entered appointing Lowder and Hanifin joint managing conservators with Hanifin having the right to establish the child’s primary residence.  In 2004, appellant sought modification of the original order and sought to be designated the conservator with the right to establish M.W.S.H.’s primary residence.  After a hearing, the trial court determined that it was in the best interest of the child to maintain the original conservatorship and denied Lowder’s petition.  Lowder now appeals the court’s ruling by four issues.

Lowder contends that the trial court (1) abused its discretion in denying a modification of the conservatorship because the evidence established that a modification  would be a positive improvement for the child; (2) abused its discretion in denying a modification of the conservatorship because the evidence established that there had been a positive improvement in Lowder’s circumstances since the prior order; (3) erred in failing to make additional Findings of Fact and Conclusions of Law as requested by Lowder; and (4) erred in its Conclusions of Law because the evidence established that Hanifin’s circumstances have so significantly deteriorated as to require a modification of conservatorship.  We affirm.

Issues One and Two: Positive improvement in the circumstances of a party

A trial court's order modifying conservatorship will not be disturbed on appeal unless the complaining party can show an abuse of discretion.  
See
 
Gillespie v. Gillespie
, 644 S.W.2d 449, 451 (Tex. 1982).   The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner without reference to any guiding principles.  
Downer v. Aquamarine Operators, Inc.
, 701 S.W.2d 238, 242 (Tex. 1985). 

Lowder contends that a trial court may modify a conservatorship order if (1) the circumstances of the child or conservator has materially and substantially changed since the prior order, and (2) the modification would be a positive improvement for and in the best interest of the child.  
See
 Act of April 20, 1995, 74
th
 Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 173 
amended by
 Act of June 16, 2001, 77
th
 Leg., R.S., ch. 1289, § 5, 2001 Tex. Gen. Laws 3108, 3108-09.  However, prior to Lowder filing his petition, the applicable statute had been amended and no longer contained the “positive improvement” language.  
Id
.  We are to presume that an amended statute is prospective in its operation, and will be controlling in cases filed after the effective date.  
Tex. Gov’t Code Ann.
 § 311.022 (Vernon 2005); 
Bates v. Tesar
, 81 S.W.3d 411, 427 (Tex.App.–El Paso 2002, no pet.).  At the time of the hearing, the applicable statute allowed a trial court to modify an order of conservatorship if the modification would be in the best interest of the child and the 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.
(footnote: 1)   Act of June 16, 2001, 77
th
 Leg., R.S., ch. 1289, § 5, 2001 Tex. Gen. Laws 3108, 3108-09 (amended 2003) (current version at 
Tex. Fam. Code. Ann.
 § 156.101 (Vernon 2005)).  

In determining the best interest of the child, a trial court can consider factors such as the 
(a) desires of the child; (b) emotional and physical needs of the child now and in the future; (c) emotional and physical danger to the child now and in the future; (d) parental abilities of the individuals seeking custody; (e) plans for the child by these individuals; (f) stability of the home or proposed placement; and (g) acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one.  
See
 
Holley v. Adams
, 544 S.W.2d 367, 371-72 (Tex. 1976)
.

As evidence of the dangers to the child, Lowder contends that the child’s cousins have been abused, that Hanifin’s sibling is in prison, and that one of Hanifin’s boyfriends has abused M.W.S.H.  Lowder also contends that the environment is dangerous since M.W.S.H. required several visits to the emergency room.
(footnote: 2)  However, there is no evidence that the primary care givers (Hanifin and her parents) were in any way abusive of M.W.S.H. or tolerated others abusing any child in their presence.  In fact, the record shows that when Hanifin was informed of the boyfriend’s alleged abuse of M.W.S.H., Hanifin stopped associating with the boyfriend.   Though the visits to the emergency room are relevant to show Hanifin’s care of the child and the safety of the environment, 
see
 
Holley
, 544 S.W.2d at 371-72, it does not show abusive behavior.   Overall, there was conflicting evidence on whether the conditions in Hanifin’s residence were detrimental to the child.

Next, Lowder points to Hanifin’s sporadic employment record as a sign of instability; however, Hanifin explained the changes of employment as her attempts to spend time with M.W.S.H. as well as his two half-brothers and that she was currently working part time on the weekends in order to be able to spend time with the children.  Lowder further contends that five residential moves and Hanifin’s four relationships with men since the original order are indicative of the instability in the child’s present living conditions.  However, Lowder’s testimony reveals that in the same time period, Lowder has had three different employers, two relationships with females other than Hanifin,  and has moved twice with a third move planned for the month after the trial court hearing.  Finally, the trial court heard testimony that Lowder and the child’s stepmother would both work and that, if Lowder were awarded custody, would place the child in an after school program rather than being available to be with M.W.S.H. immediately after school.   Although Lowder portrays Hanifin’s life as unstable, there are several indicators that Hanifin is succeeding in raising M.W.S.H.  Hanifin’s neighbors testified that the child is well-mannered, clean, and helpful.  Some of the child’s teachers testified that the child is doing well in school, is a pleasant child, and that Hanifin is active in the child’s school and exhibits appropriate parental behavior.

Finally, the trial court received expert testimony.  The report of the investigator who conducted the court-ordered social study revealed that Lowder would provide a suitable home, and that he would financially be able to provide for the child.  Further, the investigator concluded that it was in the best interest of the child to relocate him to North Carolina.   However, M.W.S.H.’s counselor who had visited with the child on a professional level testified to the contrary.  The licensed professional counselor testified that his relationship with the child began because of anxiety experienced by the child arising from Lowder’s petition for modification and the uncertainty of the pending hearing.  The counselor concluded that it would be very detrimental to relocate the child to North Carolina.  

From the record, it is clear that the lifestyles of Lowder and Hanifin differ greatly, and that each has a different approach to raising children.  The record supports Lowder’s contentions that Hanifin is very dependent on others financially, and many times emotionally.  However, the record also shows that the child appears well adjusted socially and academically, and that Hanifin actively participates in M.W.S.H.’s life.  It is further evident from the record that the trial court was attentive and interjected its own questions to witnesses to elicit further information necessary to determine the best interest of the child.   The trial court is given wide latitude in determining the best interests of a minor child.  
Gillespie
, 644 S.W.2d at 451.  Further, the trial court is in the best position to observe the demeanor and personalities of the witnesses and can “feel” the forces, powers, and influences that cannot be discerned by merely reading the record.  
Bates
, 81 S.W.3d at 424.  The modification statute's requirement of a material and substantial change of circumstances is predicated upon the doctrine of 
res judicata
 as to the best interest of the child at the time of the original decree awarding conservatorship and consistent with a policy to prevent constant relitigation with respect to children.  
See
 
Watts v. Watts
, 563 S.W.2d 314, 316 (Tex.Civ.App.–Dallas 1978, writ ref'd n.r.e.), 
rev’d on other grounds
, 
Jones v. Cable
, 626 S.W.2d 734 (Tex. 1981).  Thus, we will not find an abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's decision.  
See
 
Bates
, 81 S.W.3d at 425. It is undisputed that Lowder would be able to provide a suitable home for the child.  Further, with the exception of some problems during the pendency of the petition for modification, the parties have abided by the original order by honoring exchanges of the child for visitation purposes with minimal disruptive behavior.  Therefore, we conclude that the trial court did not abuse its discretion in denying Lowder’s petition to modify conservatorship.  We overrule Lowder’s first two issues.

Issue Three: Failure to make Additional Findings of Fact and Conclusions of Law

Next, Lowder contends that the trial court erred as a matter of law in failing to make additional Findings of Fact and Conclusions of Law.  The record shows that after the original Findings of Fact and Conclusions of Law were filed, Lowder filed a request for Additional Findings of Fact and Conclusions of Law within the proscribed period.  
See
 
Tex. R. Civ. P.
 298.

If findings of fact and conclusions of law are properly requested, the trial court must prepare them.   
See
 
Tex. R. Civ. P.
 296
; 
Tenery v. Tenery
,
 932 S.W.2d 29, 30 (Tex.1996).  If a party makes request for additional findings and conclusions and the court fails to make such findings, its failure is tantamount to refusal. 
Rafferty v. Finstad
, 903 S.W.2d 374 (Tex.App.–Houston [1st Dist.] 1995, writ denied).  However, if the record shows that the complaining party did not suffer injury, the failure to make such additional findings does not require reversal.  
Tamez v. Tamez
, 822 S.W.2d 688, 692 (Tex.App.–Corpus Christi 1991, writ denied); 
see also
 
Huber v. Buder
,
 434 S.W.2d 177, 181 (Tex.Civ.App.–Fort Worth 1968, writ ref'd n.r.e.). 

A review of Lowder’s Request for Additional Findings of Fact and Conclusions of Law reveals that the additional requested findings were either requests to acknowledge undisputed facts
(footnote: 3) or were requests for the court to adopt Lowder’s position or view as to certain facts.
(footnote: 4)   The court does not commit error in refusing to make additional findings if the facts are undisputed. 
Rathmell v. Morrison
, 732 S.W.2d 6, 19 (Tex.App.–Houston [14
th
 Dist.] 1987, no writ).  Further, the court is not required to make findings contrary to, or inconsistent with, the original findings.  
Tamez
, 822 S.W.2d at 693.  The refusal of the trial court to make additional findings of fact and conclusions of law has not prevented Lowder from adequately presenting his issues on appeal.  Therefore, we conclude that the trial court did not err in failing to file additional findings of fact or conclusions of law.   We overrule Lowder’s third issue.

Issue Four: Trial Court’s Conclusion of Law

Lowder’s final issue is that “the Trial Court erred as a 
matter of law
 in its Conclusions of Law in finding that the Petition to Modify Conservatorship should be denied because as a 
matter of law
 Hanifin’s circumstances have significantly deteriorated since the entry of the prior decree.”  (Emphasis added).  We will construe Lowder’s issue as challenging legal sufficiency of the evidence supporting the trial court’s decision denying his request for modification.  
Wood v. O'Donnell
, 894 S.W.2d 555, 557 n.1 (Tex.App.–Fort Worth 1995, no writ) (We can construe issues broadly and liberally in the interest of justice).  In other words, Lowder challenges the trial court’s finding of no material and substantial change by claiming that there is “no evidence” that Hanifin’s circumstances have NOT significantly deteriorated.  

In determining a “no-evidence” issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.  
In re T.D.C.
, 91 S.W.3d 865, 872 (Tex.App.–Fort Worth 2002, pet. denied)
.  
Anything more than a scintilla of evidence is legally sufficient to support the trial court’s conclusion.  
Id
.   In a conservatorship modification action, a “threshold inquiry” of the trial court is whether the moving party has met the burden imposed upon him by the statute of showing a material and substantial change, otherwise the trial court must deny the motion to change the custody.  
Armstrong v. Armstrong
, 601 S.W.2d 724, 725-26 (Tex.Civ.App.–Beaumont 1980, writ ref’d n.r.e.); 
see also
 
Bates
, 81 S.W.3d at 421.  To show such a change, evidence must be tendered showing the circumstances at the time of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify.  
Watts
, 563 S.W.2d at 315.  Absent evidence of a material and substantial change of circumstances, the court does not reach the question of what is in the best interest of the child.  
Id
.

In this final issue, as presented, Lowder had the burden to show a material and substantial change in Hanifin’s circumstances.   Though Lowder produced evidence of Hanifin’s circumstances at the time of the modification hearing, Lowder did not present evidence of Hanifin’s circumstances existing at the time of the initial order.  Therefore, Lowder has failed to meet the trial court’s “threshold inquiry.”
(footnote: 5)   Hence, under this last issue, the trial court does not reach the second prong under section 156.101 of the Texas Family Code, and thus did not err in denying Lowder’s petition for modification.  
Id
.  We overrule Lowder’s fourth issue.

Conclusion

For the foregoing reasons, we affirm.  	



Mackey K. Hancock

                                      Justice





















FOOTNOTES
1: The statute also allows modification if the child is at least 12 years of age and has filed with the court, in writing, the name of the conservator who is the child's preference to have the exclusive right to determine the primary residence of the child; or if the conservator who has the exclusive right to establish the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.   
See
 
Tex. Fam. Code. Ann.
 § 156.101.  However, Lowder does not contend that these circumstances existed.


2: A review of the records show childhood illnesses or injuries caused by “a lack of supervision.”


3: For example, Lowder requested that the court acknowledge the undisputed fact that Lowder would provide the child with a stable home, and that Hanifin had changed addresses multiple times.


4: For example, Lowder requested that the court find that Lowder would provide an intellectually stimulating environment for the child, and that Hanifin had placed too much pressure on the child causing him to shut down emotionally.


5: Contrary to Lowder’s contention of deteriorating circumstances, Hanifin’s circumstances, at minimum, appeared to have improved from the time of the filing of the petition to modify until the time of the hearing on the motion.  At the time of the hearing, Hanifin was no longer unemployed and  had moved into her own residence instead of living with her parents.


