Katherine Rogers Mitchell v. Raymond Kyle Flanagin--Appeal from 53rd District Court of Travis County

Mitchell v. Flanagin TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00726-CV
Katherine Rogers Mitchell, Appellant
v.
Raymond Kyle Flanagin, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 93-02618, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

 

Appellant Katherine Mitchell appeals the trial court's order removing her as sole managing conservator and appointing appellee Kyle Flanagin sole managing conservator of the parties' three boys. The court ordered that custody be modified following a jury trial. On appeal, Katherine challenges the evidentiary support for the order. We will affirm the order of the trial court.

In six points of error, Mitchell attacks the legal and factual sufficiency of the evidence to support the three findings required to change sole managing conservatorship. The trial court may modify a decree designating a sole managing conservator if (1) the circumstances of the child, sole managing conservator, or possessory conservator have materially and substantially changed since the date the divorce decree was rendered; (2) the retention of the present sole managing conservator would be injurious to the child's welfare; and (3) the appointment of the new sole managing conservator would be a positive improvement for the child. Tex. Fam. Code Ann. 14.08(c) (West Supp. 1995). (1)

In this case, the jury was asked the single question whether Mitchell should be removed as sole managing conservator and Flanagin be appointed sole managing conservator. The court instructed the jury that a decree designating a sole managing conservator could not be modified unless the three required factors were established. The court also instructed the jury that an affirmative answer must be based on a preponderance of the evidence. The jury answered the question affirmatively.

The court cannot render a decree that contravenes the jury's verdict on the issue of changing sole managing conservatorship, which is binding rather than merely advisory. Tex. Fam. Code Ann. 11.13 (West 1986 & Supp. 1995); Shannon v. Newman, 400 S.W.2d 861, 861 (Tex. Civ. App.--Amarillo 1966, no writ). The court must render judgment in accordance with a verdict determining whose custody will best serve the child's interests when the verdict is supported by evidence of probative force. Shannon, 400 S.W.2d at 861. By affirmatively finding that the managing conservatorship should be changed, the jury necessarily found that each of the three factors was established by a preponderance of the evidence. Considine v. Considine, 726 S.W.2d 253, 255 (Tex. App.--Austin 1987, no writ). We may review the jury's verdict for legally and factually sufficient evidence. Shannon, 400 S.W.2d at 861; see Thompson v. Uzzell, 541 S.W.2d 499, 501 (Tex. Civ. App.--Tyler 1976, no writ).

In her first two points of error, Mitchell attacks the sufficiency of the evidence to support the finding that the circumstances of either the children, herself, or Flanagin had materially changed since the decree was rendered. To prove that a material change of circumstances has occurred, the movant must establish the conditions that existed when the prior order was rendered and show what material changes have occurred up to the date the motion to modify was filed. Considine, 726 S.W.2d at 255; Gibbs v. Greenwood, 651 S.W.2d 377, 379 (Tex. App.--Austin 1983, no writ).

We review Mitchell's no-evidence challenge by considering only the evidence and inferences that tend to support the finding and disregarding any evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 822 (Tex. 1965). If any probative evidence supports the finding, it must be upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989). To review Mitchell's factual-sufficiency challenge, we consider all the evidence and will set aside the finding only if the evidence supporting it is so weak, or the evidence to the contrary so overwhelming, as to make it clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); West v. Watkins, 594 S.W.2d 800, 802 (Tex. Civ. App.--San Antonio 1980. writ ref'd n.r.e.).

In August 1992, before the parties divorced, they had agreed that Mitchell and the boys would move from Houston to Austin for Mitchell to study at the University of Texas (UT). UT had granted Mitchell a two-year fellowship to obtain a master's degree in French. The parties were divorced by a decree signed June 15, 1993. The decree appointed Mitchell sole managing conservator of the three boys, but accorded Flanagin possession every other weekend, over spring break, and, during 1993, over Thanksgiving and the post-Christmas vacation. Flanagin moved to modify conservatorship in November 1993, at which time Stuart was twelve, Tom was ten, and Will was four years of age. The modification hearing occurred in August 1994.

At the modification hearing, testimony was elicited as to statements made to the trial court at the divorce hearing. Mitchell had stated at the divorce hearing that UT granted her two years of financial aid for her master's degree, the terms of which allowed her to concentrate on her studies the first year. In return for the aid, UT expected her to teach classes the second year, which began in the fall of 1993. She was not free to work for anybody else under the terms of the financial aid. Mitchell stated at the divorce hearing that she would be a salaried teaching assistant for the school year beginning 1993 and that she hoped to be an assistant instructor if she later decided to pursue a doctorate. She stated that she would like to pursue a doctorate, and that if she did, she would return to Houston and attend Rice University. It would take five years to obtain both a master's and a doctorate degree. Mitchell testified that she would be in Austin attending UT until at least 1994.

Testimony at the modification hearing also focused on the expectations the parties had at the time of the divorce hearing. Mitchell testified that one reason she chose UT over other schools was that Flanagin could more easily be with the boys. UT's location in Austin was the best for their family compared to other schools she had considered, such as the University of Toronto. Mitchell thought that UT was more convenient for Flanagin and considered it important for the family to be near each other. Mitchell stated that, when the divorce decree was rendered, she had a teaching assistantship for the upcoming fall, she expected to be in Austin fulfilling the assistantship, and her goal for the future was to complete her master's degree at UT.

Testimony was adduced at the hearing on the parties' actions since the divorce and on Mitchell's plans for the future. During the summer of 1993, Mitchell undertook six weeks of intensive training in French at Middlebury College in Vermont. Mitchell testified that she first thought she had a chance to go to Paris while at Middlebury. When she had applied to Middlebury for financial aid in January 1993, however, Mitchell indicated that she tentatively planned to participate in Middlebury's year-long study-abroad program.

The divorce decree required Mitchell to notify Flanagin in writing thirty days before she changed residence or, if she could not have known that early, five days after she knew of the change. Mitchell obtained passport photos and passports in July 1993, applied for her visa on August 10, and received the visa on August 14. Mitchell told Flanagin on August 16 that she and the boys would spend the upcoming school year in Paris. The four departed for Paris on September 2 or 3, 1993, and returned to Texas at the end of the school year. Mitchell did not allow Kyle to see the boys off at the airport when they left. During their stay in Paris, Flanagin visited the boys for a week in April 1994.

Mitchell stated at the modification hearing that she planned to complete her master's degree at UT and then to pursue her doctorate. At the time of the modification hearing, she had done half the work toward the master's degree and she could expect to spend at least three years working on her doctorate. The classes she had taken in France did not count toward the completion of her master's degree from UT nor did they provide any prerequisites for a doctorate. Her plans as to when she would pursue the doctorate were uncertain because she might have to work before she could continue. Mitchell ultimately hoped to teach at the college level. Mitchell affirmed that she wanted to be free to pursue her graduate degree at the best possible school. She would like to study for her doctorate at the University of Toronto, Stanford University, or Yale University.

Mitchell was not contractually obligated to work for UT during the school year beginning September 1994, but she was currently proceeding on the understanding that she would. It was her plan to stay in Austin for the coming school year, and she did not plan to leave. Mitchell testified that she was willing to commit not to move again without giving Flanagin notice, meeting with him, and trying to discuss the issues involved. She would not move if she believed that it was not in the children's best interest. Mitchell testified that, when she left for France, she never intended to stay longer than nine months.

A friend Mitchell had made in Paris, Victoria Moussaron, testified that while in Paris Mitchell told her that she wanted to work on a doctorate and that they discussed several possible schools, including UT. Mitchell expressed her desire to continue her studies in Paris, if possible.

Flanagin testified to his belief that Mitchell was again planning to leave to pursue her doctorate, possibly for a number of years. He could not predict where she would work and at which university she would eventually establish tenure.

A change in the children's home surroundings can be a material change of conditions that will authorize a modification of conservatorship. Leonard v. Leonard, 218 S.W.2d 296, 301 (Tex. Civ. App.--San Antonio 1949, no writ). The testimony showed that when the trial court rendered the divorce decree, all those involved expected Mitchell to live in Austin and to complete her master's degree. Mitchell had asserted that she would attend UT in Austin until at least 1994. Such expectations could reasonably have formed part of the basis on which the trial court awarded Mitchell sole managing conservatorship. Contrary to Mitchell's assertions, however, she took the boys from Austin to Paris within three months after the divorce decree was rendered and remained there about nine months.

An adult person's future conduct may well be measured by his recent deliberate past conduct as it may be related to the same or a similar situation. De Llano v. Moran, 333 S.W.2d 359, 361 (Tex. 1960); Wallace v. Fitch, 533 S.W.2d 164, 167 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ). Mitchell never testified at the modification hearing that she would pursue her doctorate at UT. The testimony instead showed that Mitchell's plans for the future were unsettled, but that two significant determinants were her financial condition and her desire to study at the best possible school, including a school in Paris. The jury had the opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, and to assess the physical, mental, moral, and emotional needs of the children. Wallace, 533 S.W.2d at 168. Mitchell's deliberate decision to take the boys to Paris for the school year was some evidence of a material change in the expectations on which the original decree had been granted. See O. v. P., 560 S.W.2d 122, 126 (Tex. Civ. App.--Fort Worth 1977, no writ). All the testimony, considered together, was not so weak that a finding of material change was unjust. We therefore overrule points one and two.

In points of error three and four, Mitchell challenges the legal and factual sufficiency of the evidence to support the finding that retaining her as the sole managing conservator would be injurious to the children's welfare. In points five and six, she challenges the legal and factual sufficiency of the evidence to support the finding that appointing Flanagin as sole managing conservator would be a positive improvement for the children.

Mitchell testified that spending the school year in Paris benefitted the boys in many ways and was in no way harmful to them. While taking the boys with her strained her time and money, she believed it was better for the boys to go with her. They learned to speak French, made friends who were French, learned to ride the Paris subway and to find their way around the city, and became more self-confident. Victoria Moussaron also testified that the boys functioned well in French and exhibited self-reliance. Mitchell agreed that she took the boys to Paris knowing that they were still traumatized by the recent divorce. She stated that the boys missed Kyle while they were in Paris. Mitchell bought Flanagin's ticket to Paris for spring break under court order.

Mitchell maintained that making Flanagin managing conservator would not be a positive improvement for the boys because he did not act with their best interests in mind. After Flanagin learned that Mitchell was spending the summer of 1993 at Middlebury, he did not pick the boys up until about seven days after his visitation had started, leaving them with Mitchell's mother and sister. Flanagin explained that he had been angry at Mitchell for matters related to the divorce and that he thought she might not go to Middlebury if he did not take the boys for the summer. On hearing from Mitchell's mother and sister that the boys felt abandoned, however, Flanagin picked the boys up and kept them for the summer. Flanagin also admitted that during the most recent summer, he had spanked Tom with a belt one morning when Tom refused to go to school. He realized that physical discipline was inappropriate now that the boys were more independent and testified that he no longer intended to use it. Flanagin wrote the boys once while they were in Paris, but called them almost every week.

Mitchell described her relationship with the boys as very open and herself as being in touch with their interests. She stated that the boys were more comfortable with her than with Flanagin. The hours she would work as a teaching assistant were flexible, allowing her to minimize the time the boys would spend alone. She would be able to adapt her schedule to their needs, such as picking them up and being home after school. While she was currently living in a single room near UT, she planned to move into the same apartment for the school year that she had lived in before going to Paris. Mitchell had sold her car before leaving for Paris and did not know when she would get a new car. Her salary as a teaching assistant was $1,000 a month, and she had applied to UT for a loan for the upcoming year.

Flanagin testified that he had lived in the neighborhood of Houston Heights for almost ten years, and in the particular house in that neighborhood for the past year and one half. The three boys had all grown up in that neighborhood and the older two had attended the schools there. The same kindergarten teacher who had taught the two older boys would also be teaching the youngest in the fall. All three sons had been accepted into accelerated school programs. Flanagin had arranged for a woman who lived next door to the elementary school to take Will to school, where she worked as a volunteer. Will would stay at her house after school until Flanagin picked him up after work. The older boys would take school buses or carpool to and from school; they would either stay by themselves or participate in an after-school program until Flanagin returned from work. The older boys both had friends that attended the schools in the neighborhood. They had played baseball every year except the one they spent in France.

Flanagin worked as a project manager for a company that builds electrical equipment. He worked five days a week, from 8 a.m. to 5 p.m. and earned $40,000 a year plus incentive pay. He had been employed by the same company since 1982, was happy in his work, and considered his employment stable. His business trips were minimal. Flanagin's father, stepmother, and two siblings with their children also lived in Houston.

Flanagin viewed the possibility that the boys would be away from him while Mitchell was working on her doctorate and establishing tenure as bad for the boys. He did not think that he could maintain his relationship with them over a long distance. Flanagin believed that his oldest boy, who was starting high school the next fall, needed a stable place to stay and finish high school. He thought that children needed both their parents and that teen-aged boys particularly needed the guidance of a father. Given the potential for children to get into trouble, the need for both parents was strong. Flanagin made an effort to do a lot of things the boys liked over the most recent summer, such as fishing, crabbing, and camping. He did not think that the time the boys spent abroad benefitted his relationship with them, and he thought that the boys needed to spend time with him more than they needed to learn French.

Moussaron testified that Mitchell did nothing that exposed the children to danger during their stay in Paris, that Mitchell was a nurturing mother whose care was good for the children, and that she always tried to do what was best for them.

The evidence shows that, while Mitchell and the boys spent the school year in Paris, Flanagin was unable to see the boys every other weekend as set out in the divorce decree. Flanagin testified that the boys' time abroad was not beneficial to his relationship with them. Mitchell's effective deprivation of beneficial time Flanagin and the boys could have spent together is some evidence of circumstances injurious to the boys. See Guy v. Stubberfield, 666 S.W.2d 176, 180 (Tex. App.--Dallas 1983, no writ). Mitchell's taking the boys to Paris when they were still traumatized by the divorce is further evidence of injurious circumstances. Although Mitchell testified at the modification hearing that she planned to stay in Austin for the next school year, her plans as to where and when she would pursue her doctorate were uncertain. She did not necessarily plan to stay at UT and did not exclude the possibility of choosing to study in Connecticut, Toronto, or Paris. Mitchell's commitment to obtaining a doctorate under these circumstances fairly raises the inference that she and the boys would move some distance from Flanagin in the near future. Her future conduct may be gauged by her recent actions in taking the boys to Paris. De Llano, 333 S.W.2d at 361; Wallace, 533 S.W.2d at 167. Mitchell's belief that the nine months in Paris was in no measure harmful to the boys enhances the likelihood that she would be willing to move away again.

The jury, again, was entitled to observe and evaluate the parties' personalities, weigh their testimony, and assess the needs of the children. Wallace, 533 S.W.2d at 168. In view of the likelihood that Mitchell would move again, with the changes a move would entail, we determine that some evidence supports the finding that retaining Mitchell as managing conservator would be injurious to the boys' welfare. We believe that all the circumstances taken together provide sufficient evidence that retaining Mitchell as managing conservator would be injurious to the children's welfare.

The uncertainty of Mitchell's living arrangements stands in contrast to the stability of Flanagin's. Living with Flanagin, the boys would be in a familiar neighborhood and school system and would see their old friends. It was not foreseeable that Flanagin's living arrangements would change. The continuity in living arrangements Flanagin offered the boys is some evidence that making him managing conservator would be a positive improvement. The likelihood that Flanagin would be an absentee father rather than one actively involved in his boys' lives through their teen-age years is additional evidence that appointing him managing conservator would be a positive improvement. Even considering Flanagin's failure to pick the boys up on time for their first summer visitation, we cannot say that the finding that Flanagin's appointment would be a positive improvement is so weak or so against the great weight of the evidence as to be manifestly unjust. We therefore overrule points three through six.

In point of error seven, Mitchell argues that the trial court erred in denying her motion for directed verdict. At the close of Flanagin's case-in-chief, Mitchell moved for directed verdict on the issues that retaining Mitchell as managing conservator would be injurious to the children's welfare and that appointing Flanagin as managing conservator would be a positive improvement for the children. Mitchell failed to renew her motion at the close of all the evidence, thereby waiving any error. Buckner v. Buckner, 815 S.W.2d 877, 879 (Tex. App.--Tyler 1991, no writ). In any event, we have determined that some evidence exists on these two issues. We overrule point seven.

We affirm the order of the trial court.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: August 30, 1995

Do Not Publish

1. The seventh-fourth legislature has repealed and recodified this section without substantive change. Because the new law does not apply to proceedings pending on April 20, 1995, we cite to the former Title Two of the Family Code. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, sec. 1, 156.01, 1995 Tex. Sess. Law Serv. 113, 173 (West).