Landon Tilfford Turnbow v. Lisa Alexander

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-179-CV LANDON TILFFORD TURNBOW, APPELLANT vs. LISA ALEXANDER, APPELLEE FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. 58,147-A, HONORABLE ROYAL HART, JUDGE PER CURIAM Appellant Landon Tilfford Turnbow appeals from an order of the district court of Tom Green County that modified a prior order in a suit affecting the parent-child relationship. We will affirm the order of the district court. Turnbow and appellee Lisa Alexander were divorced in 1985. In February 1990, the district court appointed the parties joint managing conservators of their child, Landa Shae Turnbow. See Tex. Fam. Code Ann. § 14.021 (Supp. 1991). The order issued at that time ("the February 1990 order") stated that Landa "shall continue to attend school at Day Elementary School, San Angelo, Texas, or such other school within the San Angelo Independent School District, as may be required by the school district, until further order of this Court." In September 1990, Alexander filed a motion to modify prior order in suit affecting the parent-child relationship seeking a change in Landa's school. After a hearing, the district court issued its order granting the motion and allowing Alexander to enroll Landa in the Wall Independent School District. The district court filed findings of fact and conclusions of law stating: FINDINGS OF FACT . . . . 10. The prior order of the Court with regard to the child's attending school was, under existing circumstances, unworkable and inappropriate as alleged by [Alexander] in her Motion to Modify. . . . . CONCLUSIONS OF LAW . . . . 3. The best interest of the child would be served by allowing [Alexander] to enroll the child in the Wall Independent School District as requested in [Alexander's] Motion to Modify. Texas Fam. Code Ann. § 14.081(c) (Supp. 1991) allows a court to modify the terms of an existing joint conservatorship decree, after a hearing, if: (1)(A) the circumstances of the child or one or both joint managing conservators have materially and substantially changed since the rendition of the decree to be modified; or (B) the decree has become unworkable or inappropriate under existing circumstances; and (2) a modification of the terms and conditions of the decree would be a positive improvement for and in the best interest of the child. The trial court has wide discretion with respect to custody, control, possession, and visitation matters involving the child. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). Thus, an appellate court will reverse the trial court judgment only if it appears from the record as a whole that the court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Billeaud v. Billeaud, 697 S.W.2d 652, 653 (Tex. App. 1985, no writ). We may not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App. 1986, writ ref'd n.r.e.). In his first two points of error, Turnbow contends that the district court erred in modifying the February 1990 order because there had been no change of circumstances since entry of that order and because the evidence was legally and factually insufficient to support the finding "that the prior order was (had become) unworkable and inappropriate under existing circumstances." We understand Turnbow to argue that § 14.081(c)(1)(B) requires proof of some change since entry of the order to be modified and that Alexander did not meet her burden of proof. Because she relied on § 14.081(c)(1)(B), Alexander did not have to prove a material and substantial change of circumstances since entry of the February 1990 order. Under § 14.081(c)(1)(B), a trial court may modify the terms and conditions of an order that provides for joint conservatorship when the decree has become unworkable or inappropriate under existing circumstances, if the court finds the modification would be a positive improvement for and in the best interest of the child. Nothing further need be shown. See Boney v. Boney, 458 S.W.2d 907, 911 (Tex. 1970); In Interest of R.N.C., 768 S.W.2d 516, 517-18 (Tex. App. 1989, no writ); Maixner v. Maixner, 641 S.W.2d 374, 377 (Tex. App. 1982, no writ). Alexander testified that she lives in Wall, thirteen miles from San Angelo; that the distance from her house to Day Elementary School is twenty-three miles; that she drives Landa to and from school; and that the school in Wall is two miles from her house. Under the terms of the February 1990 order, Alexander has possession of Landa at all times except "during each four . . . day period when [Turnbow] is off duty from the San Angelo Fire Department" and during one weekend period when Turnbow is off duty each month. The evidence showed that since October 1989, the time of the last hearing, Landa has spent more school days with Alexander than with Turnbow. Alexander testified as to the number of miles she drove between her house and the school each month and to the fact that the mileage "start[ed] going back up" in September. She testified further that when the trial court entered the previous order she was unemployed but now cares for children in her home. Her husband remains unemployed. Turnbow testified that he is a paramedic with the San Angelo Fire Department and is also completing a nursing degree at Angelo State University; that his family helps with child care, including taking Landa to and from school; and that he "can't do the driving." At the time of the hearing, Turnbow was in classes or clinics each Tuesday and Thursday beginning at 6:30 a.m. Day Elementary School is two blocks from his house, four blocks from his mother's house, and approximately a mile from his grandmother's house. When Alexander moved to Wall, Landa was in pre-school. Based on our review of the record, we conclude that the trial court has not abused its discretion. There is sufficient evidence to support the finding of fact number ten. See Boney, 458 S.W.2d at 911; Maixner, 641 S.W.2d at 377. We overrule points of error one and two. In point of error three, Turnbow contends that the evidence was legally and factually insufficient to support the finding that the modification was in Landa's best interest. (1) In deciding a legal sufficiency point, we must consider only the evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). To determine whether the evidence was factually sufficient, this Court must consider and weigh all the evidence, and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). Alexander testified that, in her opinion, Wall has adequate facilities for Landa; that she would not be harmed by attending school in Wall; that Landa has friends who go to school there; and that, until recently, she was doing well at Day Elementary. Alexander testified further that going to a school closer to Wall was in Landa's best interest. Turnbow testified that he was satisfied with Day Elementary; that Landa has done well there; and that he spends a lot of time with Landa on her school work and would not be able to do so if Landa went to school in Wall. He testified additionally that there was no reason for a change in schools and that a change would not be in Landa's best interest. (2) Based on the review of the record before this Court, we determine that there was some evidence to support a finding that the modification was in Landa's best interest. We conclude further that the finding is not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, the trial court did not abuse its discretion in determining that it was in Landa's best interest that she attend school in Wall. We overrule point of error three. The order of the trial court is affirmed. [Before Chief Justice Carroll, Justices Aboussie and Kidd] Affirmed Filed: November 27, 1991 [Do Not Publish] 1. 1 Turnbow does not complain of a failure to find that the modification would be a positive improvement for Landa. § 14.081(c)(2). In the absence of a finding, this Court will presume that the trial court found this element in support of the judgment. Tex. R. Civ. P. Ann. 299 (Supp. 1991). 2. 2 In his brief, Turnbow also refers to evidence presented at the hearing on his motion for new trial and motion for temporary orders pending appeal. This testimony is not relevant to our consideration of Turnbow's points of error.