Loretta Jean Gallegos v. Javier Jose Gallegos--Appeal from 77th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-95-270-CV

LORETTA JEAN GALLEGOS,

Appellant

v.

JAVIER JOSE GALLEGOS,

Appellee

From the 77th District Court

Freestone County, Texas

Trial Court # 91-201-B

O P I N I O N

Appellant Loretta Gallegos appeals from an order of the trial court modifying child conservatorship and child support.

Loretta Gallegos and Appellee Javier Jose Gallegos were divorced in September 1991. The decree appointed them joint-managing conservators of their three children, ages 10, 5, and 4. Appellant was given primary custody and control of the children. Appellee was ordered to pay $400 per month child support.

On December 22, 1994, Appellee filed a motion to modify custody alleging a change of circumstances since the date of the divorce; that the original order was unworkable or inappropriate under existing circumstances; and sought to be appointed sole managing conservator of the three children. On January 6, 1995, Appellant filed a motion to modify and increase child support payments.

The case was tried to the court who, by order of August 17, 1995, continued the parties as joint-managing conservators in name; gave Appellee possession of the children every weekend from 4:00 p.m. on Friday until 6:00 p.m. on Sunday; plus Monday through Thursday of each week from 4:00 p.m. until 8:00 p.m.; plus 30 days in July (except for one weekend); and every other Thanksgiving and Christmas.

The court also removed Appellee's existing $400 per month child support obligation and decreed that no monthly support would be paid.

Appellant appeals on two points of error:

Point 1: "The court abused its discretion in effecting a de facto modification of conservatorship."

Point 2: "The trial court abused it discretion in failing to render Appellee's support obligation at $850 per month, which was mandated as a matter of law on uncontroverted evidence, or, alternatively, the court's failure was against the great weight and preponderance of the evidence."

The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in similar circumstances does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).

The evidence reflected that for about two years after the divorce, Appellee had standard visitation with the children plus a great deal more time by agreement of Appellant. Appellee remarried and after his remarriage his visitation was pretty-well restricted by Appellant to the standard visitation in the divorce decree.

Appellee was earning $28,000 per year at the time of the divorce, and earning about $45,600 at the time of the modification hearing. Appellant testified she would be receptive for Appellee and his wife to receive more time with the children.

Appellant is a nurse and was working some 64 hours per week and made nearly $50,000 during the year prior to the hearing. Appellant works 40 hours per week in the local hospital and has been going to Houston on weekends working two 12-hour shifts there. She testified that, if her child support from Appellee could be increased by $400 per month, the extra $400 would enable her to stop going to Houston.

The trial court found that the circumstances of the children and one or more of the joint-managing conservators had materially and substantially changed since the divorce; that the decree was unworkable or inappropriate under the existing circumstances; and that modification would be in the best interest of the children.

The court then awarded Appellee possession of the children every weekend, Friday at 4:00 p.m. until Sunday at 6:00 p.m.; Monday through Thursday from 4:00 p.m. until 8:00 p.m.; and stated that as a result of Appellee's increased visitation there will be no child support; that Appellee shall continue to maintain medical and dental insurance on the children; and Appellant was ordered to pay 100% of any uninsured medical and dental bills.

Appellant had sought to be named managing conservator. Had this occurred Appellant would have been appointed possessory conservator with considerable more time with the children than she received under the trial court's order.

The trial court, by its order, left the parties as joint-managing conservators in name, but accomplished a de facto modification of conservatorship by removing all practical visitation from Appellant and giving virtually all of the children's free time to Appellee, totally removing Appellee's obligation to pay any child support and, as noted, leaving Appellant with less time than she would have had under Family Code guidelines as a possessory conservator of the children.

Applying the law cited, supra, to the facts herein, we conclude that the trial court's order was unreasonable.

We sustain Appellant's points. The trial court's modificatiom order is vacated; the parties' September 1991 order is reinstated; and Appellee's and Appellant's motions for modification are remanded to the trial court for another trial.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Reversed and remanded with instructions

Opinion delivered and filed June 12, 1996

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