Monica Murray v. Cornelius Pappion--Appeal from 301st District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-082-CV

MONICA MURRAY,

Appellant

v.

CORNELIUS PAPPION,

Appellee

From the 301st District Court

Dallas County, Texas

Trial Court # 92-15407-T

O P I N I O N

Appellant Murray appeals from an order of the trial court denying her motion to modify the sole managing conservatorship of her seven year old son.

In 1989, Appellant, age 18, began dating appellee Cornelius Pappion, age 23. As a result of their relationship, Ethan Pappion was born September 6, 1991. The trial court appointed appellant as managing conservator of the child and appellee as possessory conservator on August 24, 1993. In June 1998, appellant married Scott Murray. On August 11, 1998, the trial court granted a motion to modify filed by appellee and appointed him managing conservator. On September 14, 1998, appellant filed a motion to modify seeking appointment as managing conservator of her son. Trial was on August 27, 1999, resulting in denial of appellant s motion to modify.

Appellant appeals on one issue: Whether the trial court abused its discretion and committed error in denying appellant s motion to modify the sole managing conservatorship of the minor child herein.

Section 156.101 Texas Family Code: Grounds for Modification of Sole Managing Conservatorship provides:

(a) The Court may modify an order that designates a sole managing conservator of a child of any age if:

(1) the circumstances of a child, the sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order, and

(2) the appointment of the new sole managing conservator would be a positive improvement for the child.

The trial court has broad discretion in deciding the issue of modification and its judgment will not be reversed except on a clear showing of abuse of discretion. Doyan v. Doyan, 713 S.W.2d 370, 372 (Tex. App. Beaumont 1986, no writ); Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. App. Dallas 1981, no writ); Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966).

A trial court as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex. App. Houston [1st Dist.] 1994, no writ); Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955); McGallard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

Abuse of discretion is determined by whether the court acted without reference to any guiding principles, in other words, whether the act was arbitrary or unreasonable. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939); Worford v. Worford, 801 S.W.2d 108, 109 (Tex. 1990).

In this case, no findings of fact or conclusions of law were requested or filed. It is therefore implied that the trial court made all findings necessary to support its judgment. Worford, supra, p. 109.

The child was born in September 1991; Appellant was appointed managing conservator in August 1993; Appellant married Scott Murray in June 1998; Appellee was appointed managing conservator in August 1998; and in September 1998, appellant filed this motion to modify. Trial was had in August 1999, resulting in denial of appellant s motion.

Appellant contends the trial court abused its discretion in not granting her motion to modify; that the circumstances of the child have materially and substantially changed since the August 1998 order granting appellee managing conservatorship; and that appointment of appellant would be a positive improvement for the child.

Appellant asserts that she has proved the existence of a change of circumstances. She asserts there is evidence the child has grown angry and defiant, suffers mood swings and acts out at school since living with appellee. However, the evidence also shows that as early as two years before the August 1998 order, the child had begun a pattern of aggressiveness at school, and that he had begun acting out as early as preschool. There is also evidence the child showed signs of depression prior to appellee s obtaining custody.

Appellant asserts her now stable marriage to Mr. Murray provides better living conditions for the child. But appellant and Murray were married prior to the August 1998 order. As such, no material or substantial change exists because of this fact.

Appellant, citing Dr. Goldman s report (a psychiatrist employed by appellant), asserts appellee is not consistent with follow through. Nevertheless, Dr. Goldman s report reflects that the child s behavior has improved.

Appellant asserts the child has been tardy for school many times since living with appellee after the August 1998 order. However, the child s teachers report that his attendance was average to above average.

Appellant contends that evidence of recent ecopresis (inability to control bowels) results from stress and anxiety and is a change in circumstances. There is evidence that the child has no problems controlling his bowels. However, even if he did, this does not necessarily constitute a material and substantial change in the child s circumstances.

The record contains much evidence that the child had significant problems prior to the August 1998 order. The trial court presumed finding that there had been no change was not arbitrary, unreasonable, or an abuse of discretion.

Appellant contends she has proven that her appointment as new managing conservator of the child would be a positive improvement for the child. She asserts that her stable marriage to Scott Murray, that the fact she and Mr. Murray have had a baby, and that Dr. Goldman is of the opinion the child would be better off going back to her custody establishes this. There is also evidence that the contrary is true. Additionally, the trial court did not have to believe Dr. Goldman. Dr. Goldman based his testimony and report on his interview with appellant and the child. He never spoke with appellee and testified he had done only one child custody evaluation prior to this case.

Under the authorities cited, the trial court was authorized to believe that appellant had not proven that a material and substantial change of circumstances had occurred since rendition of the August 1998 order, or that the appointment of appellant as managing conservator would be a positive improvement for the child.

The trial court did not abuse its discretion in denying the motion to modify.

The order of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 6, 2000

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