In the Interest of J. D. C., a child--Appeal from County Court at Law of Cherokee County

NO. 12-03-00262-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST APPEAL FROM THE

OF J.D.C., COUNTY COURT AT LAW

A CHILD CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Gary M. Clark, an inmate proceeding pro se, appeals the trial court s order modifying the parent-child relationship. Clark raises six issues on appeal. We reverse and remand.

Background

Clark and Lisa Ann Satterwhite were married on March 31, 1991. On October 25, 1995, Clark was convicted of sexual assault of a child and sentenced to imprisonment for twenty years. On May 30, 1996, Clark and Satterwhite s child, J.D.C., was born.

On November 14, 1997, Satterwhite filed her original petition for divorce in the County Court at Law of Cherokee County, Texas. The trial court signed the final divorce decree on January 16, 1998. Pursuant to the final divorce decree, Satterwhite was appointed sole managing conservator of J.D.C., while Clark was appointed possessory conservator of J.D.C. Clark was awarded visitation with J.D.C. in accordance with a standard possession order. // Clark was further ordered to pay two hundred dollars per month in child support, with the first payment due the thirtieth day after Clark is released from prison. Moreover, Clark was ordered to provide health insurance for J.D.C.

On October 30, 2002, Satterwhite filed a petition to modify the parent-child relationship. By her petition, Satterwhite sought to modify the accrual date of Clark s child support obligation and deny Clark s visitation rights or otherwise restrict them by requiring that Clark be supervised during any visitation. On May 14, 2003, the trial court signed an order modifying Clark s child support obligation by ordering that child support begin to accrue as of November 1, 2002. The trial court vacated its previous orders concerning Clark s visitation rights and, by way of its new order, provided for restricted access to J.D.C. at Kids Connection in Tyler, Texas. The new order also provided that Clark s visitation with J.D.C. be supervised and, further, that Clark be required to give Satterwhite at least forty-eight hours advance notice of his intent to exercise his visitation rights. Clark timely filed this appeal.

Subject Matter Jurisdiction

In his first issue, Clark argues that the trial court lacked subject matter jurisdiction over the instant case and erred in failing to rule on Clark s pleading, in which he questioned the court s jurisdiction. Clark further argues that the trial court erred by failing to rule on his affirmative defenses. Moreover, Clark argues that the trial court erred in not granting summary judgment.

As to Clark s contentions that the trial court failed to rule on matters he brought before it, such is not the case. In its findings of fact and conclusions of law, the trial court found that it has jurisdiction of the instant case and of all parties and, further, that no other court has continuing, exclusive jurisdiction of the instant case. Moreover, by proceeding to trial, the trial court implicitly denied all of Clark s motions, requests, and affirmative defenses. See, e.g., In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (By proceeding to trial without issuing the bench warrant the appellant had requested, it is clear that the trial court implicitly denied the appellant s request). Finally, we cannot conclude that the trial court erred in not granting summary judgment in Clark s favor inasmuch as there is no indication in the record that Clark filed a motion for summary judgment. See Tex. R. Civ. P. 166a(a).

Similarly, Clark s contention that the trial court lacked subject matter jurisdiction is without merit. A court with continuing, exclusive jurisdiction retains such jurisdiction of the parties and may modify an order that provides for the conservatorship, support, or possession of and access to a child. See Tex. Fam. Code Ann. 155.002, 156.001 (Vernon 2002). A court acquires continuing, exclusive jurisdiction over the matters provided for in the Texas Family Code in connection with a child on the rendition of a final order. See Tex. Fam. Code Ann. 155.001(a) (Vernon 2002). The record reflects that the trial court that signed the order from which this appeal arises is the same court that signed the final divorce decree that ended Clark and Satterwhite s marriage and set forth the parameters for the conservatorship, possession, and support of J.D.C. Therefore, since the final divorce decree signed by the trial court was a matter provided for by the Texas Family Code in connection with J.D.C., the trial court retained continuing, exclusive jurisdiction to modify the provisions of its order relating to J.D.C. s conservatorship, support, or possession. Clark s first issue is overruled.

Access to Courts

In his second issue, Clark argues that the trial court erred in not allowing him to participate in proceedings by appearing in person or by other means. // Specifically, Clark argues that even though he timely submitted a motion for a bench warrant, the trial court failed to rule on his requests and never provided any alternative means of participation for him. We review the trial court s denial of Clark s request for a bench warrant for abuse of discretion. See Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex. App. Corpus Christi 1997, no pet.).

It is well established that litigants cannot be denied access to the courts simply because they are inmates. See Z.L.T., 124 S.W.3d at 165 (citing Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). However, an inmate does not have an absolute right to appear in person in every court proceeding. Z.L.T., 124 S.W.3d at 165. Instead, the inmate s right of access to the courts must be weighed against the protection of our correctional system s integrity. Id. Following the Seventh Circuit s decision in Stone v. Morris, 546 F.2d 730, 735-36 (5th Cir. 1976), Texas courts have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate s request for a bench warrant. Z.L.T., 124 S.W.3d at 165. These factors include (1) the cost and inconvenience of transporting the prisoner to the courtroom, (2) the security risk the prisoner presents to the court and public, (3) whether the prisoner s claims are substantial, (4) whether the matter s resolution can reasonably be delayed until the prisoner s release, (5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means, (6) whether the prisoner s presence is important in judging his demeanor and credibility, (7) whether the trial is to the court or a jury, and (8) the prisoner s probability of success on the merits. See id. at 165-66.

Yet, in general, the rules of appellate procedure place the burden on litigants to identify with sufficient specificity the grounds for a ruling they seek. Id. at 166; see also Tex. R. Civ. P. 21; Tex. R. App. P. 33.1(a)(1)(A). A litigant s status as an inmate does not alter such a burden. See Z.L.T., 124 S.W.3d at 166. The central issue is the trial court s responsibility to independently inquire into relevant facts not provided by the moving party. Id.

Here, Clark s request for a bench warrant included no information by which the trial court could assess the necessity of his appearance. Although Clark listed the Stone factors in his request, he failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system. Clark bore the burden to establish his right to relief. Z.L.T., 124 S.W.3d at 166; Shul v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App. San Antonio 1999, pet. denied). Clark did not meet his burden. Therefore, the trial court did not abuse its discretion by overruling his request for a bench warrant. Clark s second issue is overruled.

Modification of Child Support

In his third issue, Clark argues that the evidence was neither legally nor factually sufficient to support the trial court s order modifying child support. We review a trial court's decision to grant or deny a motion to modify child support payments under an abuse of discretion standard. SeeHoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex. App. Corpus Christi 1991, writ denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. See In re A.D.H., 979 S.W.2d 445, 446 (Tex. App. Beaumont 1998, no pet.) (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991)). Under the abuse of discretion standard, legal and factual sufficiency of the evidence, although not independent grounds for asserting error, are relevant factors in assessing whether the trial court abused its discretion. See Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App. Dallas 1999, no pet.). Findings of fact entered in a case tried to a court are of the same force and dignity as a jury s verdict upon special issues. Id. Therefore, we apply the same standards in reviewing the legal and factual sufficiency of the evidence supporting the trial court's fact findings as we do when reviewing the legal and factual sufficiency of the evidence supporting a jury's answer to a special issue. Id. (citing Rapp Collins Worldwide, Inc. v. Mohr, 982 S.W.2d 478, 481 (Tex. App. Dallas 1998, no pet.)).

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the finding, considering only the evidence and inferences that support the finding, and disregarding all evidence and inferences to the contrary. Id. We will uphold the trial court's finding if more than a scintilla of evidence exists to support it. Id. In reviewing a challenge to the factual sufficiency of the evidence, we examine all of the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. We do not review a trial court s conclusions of law for factual sufficiency, but rather we evaluate the trial court s legal conclusions independently to determine whether the trial court correctly drew such legal conclusions from the facts. Id.

A trial court may modify an order that provides for the support of a child if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order s rendition. See Tex. Fam. Code Ann. 156.401(a)(1) (Vernon 2002). Proof of change of circumstance warranting modification of a child support order must not be merely of change, but of material and substantial change. See Cannon v. Cannon, 646 S.W.2d 295, 296 (Tex. App. Tyler 1983, no writ). The burden to prove such a material and substantial change in circumstances by a preponderance of the evidence rests upon the movant. Id.

In the case at hand, in its findings of fact, the trial court found that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of rendition of the order to be modified. At the hearing on her motion to modify, with reference to the issue of child support, Satterwhite testified that she was not represented by an attorney at the time the final divorce decree was entered and that it was her understanding at that time that because Clark was incarcerated, she could not ask that child support accrue during the period of his incarceration. Satterwhite has cited no authority, nor are we aware of any such authority, supporting the proposition that a movant s realization that she is entitled to greater relief under the law than she was originally granted under an order in a suit affecting the parent-child relationship amounts to sufficient change in circumstances to warrant modification of that order under the family code. While the trial court is afforded great discretion to modify a child support order, it abuses such discretion when its factual finding as to material and substantial change in circumstance is not supported by legally sufficient evidence. See Seidel, 10 S.W.3d at 368. We conclude that the evidence of record in the instant case does not support that there existed a material and substantial change in circumstances of the child, a conservator, or other party affected by the court s order. Therefore, we hold that the trial court abused its discretion in modifying Clark s child support obligation. Clark s third issue is sustained. //

Disposition

Having sustained Clark s third issue, we reverse the trial court s order in suit to modify parent-child relationship signed on May 14, 2003 and remand the cause to the trial court for further consideration consistent with this opinion.

SAM GRIFFITH

Justice

Opinion delivered January 19, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)