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Docket Number

No. 07-95-0026-CV.

Attorney(S)

Owen, Lyle, Voss Owen, P.C., Rudd F. Owen, Kregg Hukill, Plainview, for appellant. Shelton Jones, Jennifer C. Beedy, Lubbock, for appellee.

Judges

Brian Patrick Quinn

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Smart Summary

Case Summary: In the Matter of the Marriage of Karen Lynn Chandler and Billy John Stewart Chandler; In the Interest of Ash-Leah Kristina Chandler, a Minor Child

Factual and Procedural Background

Karen Lynn Haffner (formerly Chandler) and Billy Chandler divorced on July 13, 1992. At that time their daughter, Ash-Leah (then six years old), was placed in the mother's custody as managing conservator; Billy Chandler was named possessory conservator. Approximately seventeen months after the divorce, Chandler moved to modify the conservatorship and to replace Ms. Haffner as the child's primary caretaker. The trial court granted Chandler's motion and divested Ms. Haffner of the managing conservatorship. Ms. Haffner appealed, challenging the legal and factual sufficiency of the evidence supporting the modification. The Court of Appeals affirmed the trial court's judgment.

Legal Issues Presented

Whether the trial court's findings supporting the modification of conservatorship were supported by legally sufficient evidence.
Whether the trial court's findings supporting the modification of conservatorship were supported by factually sufficient evidence.
Whether the statutory guidelines for modifying a sole managing conservatorship (Tex. Fam. Code Ann. § 14.08(c) and best-interest considerations in § 14.07(a)) were satisfied by the evidence presented.

Arguments of the Parties

Appellant's Arguments (Karen Lynn Haffner)

Ms. Haffner contended that the evidence was legally and factually insufficient to support the trial court's findings and the resulting modification.
She asserted that her living situation had improved since the immediate post-divorce period and offered photographs of the child interacting with step-siblings and the step-father to support that claim.
She placed blame for difficulties in the post-divorce relationship on Chandler's intractability, implying that many adverse impressions were attributable to him rather than to her parental fitness.

Appellee's Arguments (Billy Chandler)

Chandler presented evidence that, since Ms. Haffner received managerial custody, the child experienced instability: multiple moves (at least four placements), residence with an aunt in Alvarado for four months, and periods when Chandler was prevented from communicating with the child because Ms. Haffner refused to disclose the child's location.
Chandler described deficient living conditions while the child was with the mother: crowded sleeping arrangements, times without electricity, and living with mixed step-siblings, and suggested the child appeared malnourished and underdressed.
He pointed to Ms. Haffner's cohabitation, subsequent pregnancy by her partner, and marriage as material changes; the resulting larger household and divided attention were presented as detrimental to the child's welfare.
Chandler alleged and offered testimony of the mother's antagonistic conduct toward him and conduct obstructing his access to the child: statements that he would never see the child again, disposal of gifts from paternal relatives, refusal to release the child on at least one occasion despite a police officer's involvement, and sending the child away in response to an alleged threat (which Ms. Haffner later admitted had not been carried out).
Chandler and other witnesses (including his mother and sister) testified that the child exhibited regression, mood swings, pleas to remain with Chandler, and behaviors indicating distress at returning to the mother's care.
Chandler argued that placing the child in his care would reduce overcrowding, instability, hostility, and competition for affection, thereby serving the child's best interests.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wood v. O'Donnell	Supports that modification of custody lies within trial court discretion and establishes customary standard of review.	The court noted the usual abuse-of-discretion standard from Wood but explained that because appellant did not assert abuse of discretion, the court limited review to legal and factual sufficiency of findings.
Randle v. Randle	Also supports that custody modification ordinarily rests within trial court discretion; referenced regarding best-interest consideration.	Used with Wood to describe the customary standard of review and to emphasize that best interests must be the primary consideration; guided the court's approach to sufficiency review here.
In re the Marriage of Hamer	Explains that the exercise of trial court discretion withstands appellate scrutiny unless clearly abused.	Reiterated the general abuse-of-discretion rule while noting the appellant did not raise abuse as a ground of reversal.
Eason v. Eason	Recognizes the state's interest in a stable home environment; repeated changes can justify redesignation of conservator.	Used to support the proposition that instability and repeated moving are proper considerations in modifying conservatorship.
Jeffers v. Wallace	Holds that not every changed circumstance warrants modification but changes injurious to the child's best interest may suffice.	Court relied on Jeffers to explain that courts must develop common-law application of statutory elements and to identify the class of changes that can support modification.
Brown v. Brown	Holds that changes which injuriously affect the child's best interest are sufficient to require modification.	Supported the court's conclusion that the types of changes shown (instability, mistreatment, or harmful conditions) can justify redesignation.
Neal v. Neal	Affirms the state's paramount interest in fostering a stable home environment for children.	Reinforced the court's emphasis on stability as a controlling state interest when considering custody changes.
Scroggins v. Scroggins	Example of where repeated moving and adjustment problems justified modification.	Used as an example to show that repeated changes in a child's routine may be injurious and justify redesignation.
Guy v. Stubberfield	Course of conduct by a conservator that hampers the child's opportunities to associate with the other parent can constitute grounds for modification.	Supported the court's consideration of testimony alleging the mother's obstruction of the father's access to the child.
Gunther v. Gunther	Emphasizes necessity that children know, love, and be with each parent.	Applied to bolster the proposition that unwarranted interference with parent-child association is objectionable and relevant to conservatorship decisions.
McLeod v. McLeod	Warns against implanting in a child's mind hatred or malice toward a parent; supports child's right to parental influence without denigration.	The court quoted McLeod to illustrate the legal principle that parents should refrain from causing children to hate the other parent and that this principle is relevant to conservatorship determinations.
Reagan v. Vaughn	Describes interests protected by allowing offspring legal remedies related to the parent-child relationship (example of legal recognition of those interests).	Cited as an illustrative source recognizing the importance of protecting parent-child relationships in law.
Villarreal v. Villarreal	Establishes that a party need not present expert medical or psychological testimony to carry a burden in custody-related matters.	The court cited Villarreal to reject the suggestion that Chandler needed expert testimony to prove the child's regression or harm.
Raw Hide Oil Gas, Inc. v. Maxus Exploration Co.	Explains the tests for legally and factually sufficient evidence.	The court invoked Raw Hide to apply the legal and factual sufficiency tests and to conclude that the trial court's findings had more than a scintilla of evidence and were not so overwhelmed by contrary evidence as to be unjust.

Court's Reasoning and Analysis

The court began by identifying the usual standard of review for custody modifications: such decisions ordinarily rest within the trial court's discretion and will be sustained absent a clear abuse of that discretion. However, the opinion noted that Ms. Haffner did not assert in her points of error that the trial court abused its discretion. Consequently, the appellate court restricted its review to the legal and factual sufficiency of the trial court's findings.

The court then articulated the statutory framework governing modification of a sole managing conservatorship: under Tex. Fam. Code Ann. § 14.08(c)(1), a prior appointment stands unless (1) there has been a material and substantial change in circumstances of the child or a parent, (2) retaining the status quo potentially harms the child's welfare, and (3) appointing a new managing conservator would be a positive improvement. The court also emphasized that any change must further the best interests of the child per § 14.07(a).

Because the Family Code does not define the statutory elements in detail, the court relied on judicially developed principles. It recognized that not every change justifies modification but that changes which negatively affect the child's best interests (remarriage, mistreatment, poisoning the child's mind against a parent, repeated moves, and conduct obstructing access to the other parent) may constitute sufficient grounds.

Applying those guidelines to the record, the court summarized the evidence supporting the trial court's findings: since obtaining custody, Ms. Haffner moved the child at least four times (including a four-month placement with an aunt in Alvarado during which the mother refused to disclose the child's location), subjected the child to cramped and unstable living conditions (sleeping arrangements on couches or floors, an apartment with electricity disconnected), cohabited and later married a new partner and had another child, and divided her attention among a larger blended household. The record included testimony alleging active interference with the father's access (threats that the child would never see him again, disposal of gifts, refusal to release the child when requested), and witness accounts and professional-observation–type testimony that the child exhibited regression, mood swings, and distress at returning to the mother's care.

The court found these circumstances, if accepted, to be materially and substantially changed circumstances that were injurious to the child's welfare. The court accepted Chandler's testimony that placing the child in his environment would reduce overcrowding, competition for affection, instability, and hostility, and that he had taken steps (completed nursing school, begun a career, arranged a private room and access to relatives) to provide a stable environment. The court noted that the record did include conflicting evidence offered by Ms. Haffner, but emphasized that credibility and weight of conflicting testimony are matters for the fact finder. Because the trial court's findings were supported by more than a scintilla of evidence and the contrary evidence did not overwhelm the findings, the court concluded the findings were both legally and factually sufficient. The court also relied on precedent establishing that expert testimony was not required to prove the child's regression.

Holding and Implications

AFFIRMED. The Court of Appeals overruled each of Ms. Haffner's eight points of error and affirmed the trial court's judgment divesting her of the managing conservatorship of Ash-Leah Kristina Chandler.

Implications: The direct effect of the decision is that the trial court's modification of conservatorship stands and Billy Chandler was designated the parent better able to supply the environment serving the child's best interests. The opinion applies established statutory criteria and prior decisions regarding material and substantial change, harm to the child's welfare, and improvement in appointing a new managing conservator; it does not announce a new rule of law or depart from the precedents cited. The court explicitly exercised a sufficiency review (legal and factual) rather than reversing on an abuse-of-discretion ground because the appellant did not contest abuse of discretion in her points of error.

This summary is confined to and faithful to the contents of the provided opinion. No information not contained in the opinion has been added.

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In the Matter of the MARRIAGE OF Karen Lynn CHANDLER and Billy John Stewart Chandler and in the Interest of Ash-Leah Kristina Chandler, a Minor Child.

QUINN, Justice.

Karen Lynn Haffner (formerly Chandler and referred to herein as Ms. Haffner) appeals from an order divesting her of managing conservatorship over her daughter, Ash-Leah Kristina Chandler (Ash-Leah). Through eight points of error, she attacks the legal and factual sufficiency of the evidence underlying the modification. We conclude that the trial court's findings are both legally and factually sufficient and that it did not abuse its discretion in arriving at the result it did. We further overrule each point of error and affirm the judgment.

Background

Ms. Haffner and Billy Chandler (Chandler) divorced on July 13, 1992. At the time, the couple had a six year old child, Ash-Leah, over whom the mother was appointed managing conservator. Chandler received appointment as the child's possessory conservator but moved to change the designation approximately seventeen months later. He sought to replace Ms. Haffner as the child's primary caretaker. The court granted Chandler's motion and Ms. Haffner appealed.

Standard of Review

Normally, whether to modify custody over a child lies within the trial court's sound discretion. Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App. — Fort Worth 1995, no writ); Randle v. Randle, 700 S.W.2d 314, 315 (Tex.App. — Houston [1st Dist.] 1985, no writ). The exercise of discretion will withstand appellate scrutiny except when clearly abused. In re the Marriage of Hamer, 906 S.W.2d 263, 265 (Tex.App. — Amarillo 1995, no writ); Wood v. O'Donnell, 894 S.W.2d at 556; Eason v. Eason, 860 S.W.2d 187, 191 (Tex.App. — Houston [14th Dist.] 1993, no writ). Yet, at bar, Ms. Haffner does not contend that the court so acted. Instead, she avers that various of its findings lacked legal and factual evidentiary support. Thus, we do not review this appeal under the customary standard mentioned in Wood or Randle but simply decide if the court's findings were supported by legally and factually sufficient evidence.

Left for another day is the issue of whether those appealing questions controlled by the abuse of discretion standard actually present basis to secure reversal when they fail to argue, through point of error, that the discretion was indeed abused.

Guidelines Applicable to Changing Conservatorship

The pivotal guidelines which the court must heed in deciding whether to modify custody are found in the Texas Family Code. They dictate that an order appointing a sole managing conservator must stand as originally executed unless 1) the circumstances of the child, managing conservator, or possessory conservator materially and substantially change, 2) retaining the status quo potentially harms the child's welfare, and 3) appointing a new managing conservator constitutes a positive improvement. Tex.Fam. Code Ann. § 14.08(c)(1) (Vernon Supp. 1995); Wood v. O'Donnell, 894 S.W.2d at 556; Randle v. Randle, 700 S.W.2d at 315. Moreover, the change must further the best interests of the child. Id. at 14.07(a) (stating that the best interests of the child shall always be the primary consideration in determining matters of conservatorship, support and access); Randle v. Randle, 700 S.W.2d at 315.

Though now creatures of statute, the elements expressed in s 14.08(c) of the Family Code went undefined by the legislature. So, courts have been left to develop a body of common law construing them. For instance, they recognize that not every changed circumstance warrants modification. Jeffers v. Wallace, 615 S.W.2d 252, 253-54 (Tex.Civ.App. — Dallas 1981, no writ). Yet, many deem changes which may injuriously affect the child's best interest sufficient to require modification. Id.; Brown v. Brown, 500 S.W.2d 210, 216 (Tex.Civ.App. — Texarkana 1973, no writ). Those include, among other things, remarriage by a parent, poisoning the child's mind against a parent, or mistreatment of the child by a parent or step-parent. Jeffers v. Wallace, 615 S.W.2d at 253-54; Brown v. Brown, 500 S.W.2d at 215-16.

Additionally, the state maintains a paramount interest in fostering a stable home environment for children. Eason v. Eason, 860 S.W.2d 187, 190-91 (Tex.App. — Houston [14th Dist.] 1993, no writ); Neal v. Neal, 606 S.W.2d 729, 731 (Tex.Civ.App. — Beaumont 1980, writ ref'd n.r.e.). To bolster this interest, jurists also hold that repeated changes in the child's home environment supply ground for redesignating managing conservators. E.g., Eason v. Eason, supra (child moving nine times within four years and mother's co-habitation with several men out of wedlock); Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex.App. — Houston [1st Dist.] 1988, no writ) (child moving several times and adjusting to presence of new sibling); Randle v. Randle, 700 S.W.2d at 316-17 (holding that repeated change in the child's routine was injurious to the child's welfare).

Similarly, a course of conduct pursued by the manager which hampers the ward's opportunities to favorably associate with the other parent may also suffice. E.g., Guy v. Stubberfield, 666 S.W.2d 176, 179 (Tex.App. — Dallas 1983, no writ) (parent refusing to abide by a custody arrangement previously agreed to); Gunther v. Gunther, 478 S.W.2d 821, 829-30 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ ref'd n.r.e.) (stating that "it is certainly necessary that children know, love, and be with each of their parents"); McLeod v. McLeod, 9 S.W.2d 141, 142 (Tex.Civ.App. — Eastland 1927, no writ) (denial by parent of child's access to other parent). No one can escape the fact that children are born to a couple. Whether married or not, the participants in that coupling have the natural and legal obligation to care for and nurture their offspring. In many respects, Texas jurisprudence also recognizes and enforces the child's entitlement to pursue and benefit from that association. E.g., Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990) (describing the interests protected by allowing offspring to recover for the wrongful death of a parent). To unjustifiably interfere with the parent/child relationship is reprehensible under the law, especially when motivated by the angst and pain inherent in a divorce. As long ago expressed in McLeod,

The child, during its formative period, has the right to have those having influence upon her refrain from implanting in her tender mind the seeds of hate and the cankerous beginnings of malice and ill will towards those whom she should cherish and respect . . . While arrogance, superciliousness, and snobbishness are to be . . . condemned, still a proper pride in one's ancestry and in the worthiness of one's parents is a necessary part of the equipment of a well-balanced person. . . .

McLeod v. McLeod, 9 S.W.2d at 142. The trial judge below captured this truth in admonishing Ms. Haffner and Chandler that "you folks have divorced each other for whatever reason . . . But the child didn't divorce either of you. And it's [the court's] obligation to see that the child has some semblance of parents and some semblance of order."

Application of Facts to Guidelines

The evidence revealed that since she gained managerial custody of Ash-Leah in July of 1992, Ms. Haffner has moved the young girl to at least four places. The most distant was Alvarado, Texas, whereat the child resided with an aunt for four months. During that period Ash-Leah and Chandler were effectively prohibited from communicating with each other because Ms. Haffner refused to disclose the girl's location. More importantly, the appellant conceded at trial that this was not in her daughter's best interests.

Additionally, the post-divorce arrangements experienced by the child while with her mother included living in quarters so cramped that Ash-Leah had to sleep either with her mother, or on a couch, or on the floor, or in a bedroom with male and female step-siblings. At one point the mother and child also resided in an apartment, to which the electricity had been disconnected. The trial court could well have deemed these substantial, material, and harmful changes worthy of alleviation.

That Ms. Haffner co-habitated with a male, conceived his child, and eventually married him comprise further indicia contemplated by § 14.08(c)(1)(A) of the Family Code. Additionally, Ms. Haffner now divided her attention among a new husband, his two children, their new baby and Ash-Leah rather than simply Ash-Leah. The size of Ms. Haffner's new household and the inherent costs in maintaining same may have been the basis for Chandler's observation that his daughter has come to appear malnourished and underdressed.

So too did the evidence show that the child was exposed to hostility directed at her father and interference with her ability to associate with him. As previously mentioned, Ms. Haffner sent Ash-Leah to live with relatives for several months. The impetus for her decision was Chandler's alleged threat to take his daughter away. Ms. Haffner later admitted that her ex-husband had done nothing to fulfill it, however. Witnesses also related instances when Ms. Haffner told Chandler "that Glen [her new husband] would get transferred and that [Chandler] would never see Ash-Leah again and that she would make [the child] hate [him]." Also witnessed were instances wherein Ms. Haffner disposed of toys and gifts given the child by her father and paternal relatives. One individual also testified to an occurrence wherein the mother refused to release Ash-Leah to Chandler's sister despite Chandler's request and the admonitions of a policeman brought to the scene. A witness eventually summarized the situation by stating that Ms. Haffner appeared uncooperative at most every opportunity. Indeed, her antagonistic behavior was exemplified as recently as the day before trial when Chandler appeared at the Haffner abode to lawfully exercise his visitation and neither Ms. Haffner nor the child were present. The composite of this evidence lends more than adequate support to the conclusion that the managing conservator endeavored to obstruct Chandler's relationship with his daughter.

According to Chandler, the hostility between he and his ex-wife had grown so bad that he ventured to pick-up his daughter only in the presence of a military police officer.

That the foregoing circumstances, if accepted as true, were injurious to Ash-Leah's welfare is beyond gainsay. Both witnesses and prior case law hold as much. Chandler, himself a licensed vocational nurse, attested that Ash-Leah experienced "regression" and would find difficulty in developing trusting relationships if the adverse conditions were allowed to persist. He and others also stated that the girl suffered mood swings upon realizing that she would have to return to her mother after visitation. So too did they describe instances when Ash-Leah would plead to remain with Chandler and assume a fetal position while proclaiming that no one knew "what it was like" to live with Ms. Haffner.

Contrary to Ms. Haffner's suggestion, Chandler need not have proffered the testimony of an expert medical or psychological witness to carry his burden. Villarreal v. Villarreal, 684 S.W.2d 214, 219 (Tex.App. — Corpus Christi 1984, no writ).

That it was in Ash-Leah's best interests to ameliorate the adverse circumstances which caused the potential harm was equally indisputable. Placing her in an environment which reduced over-crowding, competition for affection, instability, and hostility towards the absent parent could only have been an improvement in the life of this child. Having completed nursing school, having embarked on a new career, having arranged for Ash-Leah to have her own room and access to close relatives, and having indicated no venom towards Ms. Haffner, Chandler's selection as the parent best able to supply his daughter with the needed environment also had sufficient evidentiary basis.

Admittedly, evidence appeared of record which one could interpret as contradicting most everything said by Chandler, his sister and his mother. Ms. Haffner attested that though her situation may have been less than stellar shortly after the divorce, all had become better. To support her claim she tendered pictures of Ash-Leah playing with step-siblings and resting with her step-father. Furthermore, most if not all fault, according to her, lay with Chandler and his intractability. Yet, the conflicting evidence simply created a situation obligating the fact finder to perform its duty, that being to decide who to believe. Given the court's history with the parties, it may well have concluded that the scenario painted by Ms. Haffner was manufactured for purposes of the hearing, as suggested by Chandler.

Disregarding evidence to the contrary, one quickly sees that the findings have much more than a scintilla of evidentiary support; thus, they are legally sufficient. Additionally, the contradictory evidence, when the entire record is considered, is not of such magnitude so as to overwhelm the findings and render them wrong or unjust. Thus, they are also factually sufficient. See Raw Hide Oil Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App. — Amarillo 1988, writ denied) (explaining the tests for legally and factually sufficient evidence).

Accordingly, we affirm the judgment.

MARRIAGE OF CHANDLER, MATTER OF