Marriage of R.W.M. v. J.C.M. ex rel. L.M.M. , 684 S.W.2d 746 ( 1984 )

OPINION

NYE, Chief Justice.

This is an appeal from a trial court judgment denying a change in the designation of managing conservator of two children. The case involves a procedural question.

R.W.M. (appellant, the husband) and J.C.M. (appellee, the wife) were married in 1970. Two children were born during the marriage: a girl who was six years old and a boy who was four years old at the time of the modification hearing. Appellee wife was appointed managing conservator, pursuant to the decree of divorce entered in 1980. Both parties have now remarried. Appellee did not file a brief in this case.

On September 14,1982, the husband filed his first amended motion to modify custody. He asserted in his motion that there were changes in circumstances since their divorce of such a material nature that it would be injurious to the children to have them remain with the appellee wife, and a change in custody would be an improvement for the children. The appellant presented testimony for three days to the trial court. After the husband rested his case, and before appellee presented any evidence .or rested, the trial court granted appellee’s motion for judgment. Appellant asserts in his sole point of error that the trial court erred in granting judgment for appellee at the close of his case. He argues that the evidence that he presented raised fact issues which would, in fact and law, support a modification of the conser-vatorship. Appellant contends that the granting of judgment after he rested would only have been proper if no issues of fact had been raised by the evidence. We agree and reverse the case for another trial.

It would only be proper for the trial court to grant appellee’s motion for judgment at the close of appellant’s case if an instructed verdict would have been proper if the case was tried before a jury. Kennedy v. Kennedy, 619 S.W.2d 409 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). It is error to grant an instructed verdict or motion for judgment where the evidence and reasonable inferences raise a fact issue. Kirkwood v. Kirkwood, 663 S.W.2d 34 (Tex.App.—El Paso 1983, no writ); see Guthrie v. Ray, 556 S.W.2d 589 (Tex.Civ.App.—Dallas 1977, no writ); Allen v. Nesmith, 525 S.W.2d 943 (Tex.Civ.App.—Houston [1st Dist.] writ ref’d n.r.e., per curiam, 531 S.W.2d 330 (Tex.1975). An instructed verdict is proper only when no material fact issues have been raised. Kennedy v. Kennedy, 619 S.W.2d at 410.

In this case, the trial judge specifically stated that he chose to deny the modification, not because he found there was no evidence of a material change, but because the evidence was insufficient. The judgment recites that the plaintiff has failed to meet his burden of proving by a preponderance of the evidence that all three of the standards for modification under TEX. FAM.CODE ANN. § 14.08(c)(1) have been satisfied.

First, we must determine whether there was any evidence which raised a disputed issue of fact as to each of the elements appellant was required to prove to support modification. These elements are:

1. there was a change in the circumstances of the child or parent so material and substantial that

2. retention of the present managing conservator would be injurious to the welfare of the child; and

3. the appointment of a new managing conservator would be a positive improvement for the child.

TEX.FAM.CODE ANN. § 14.08(c)(1) (amended September 1, 1983);¹ Jones v. Cable, 626 S.W.2d 734 (Tex.1981).

In Leonard v. Leonard, 218 S.W.2d 296, 801 (Tex.Civ.App.—San Antonio 1949, no writ), the Court, in discussing material change in circumstances, said:

“Material change of conditions which will require a modification of a decree as to the custody of a child is ordinarily such as (1) Marriage of one of the parties. (2) Poisoning of the mind of the child by one of the parties. (3) One of the parties becoming an improper person for the custody. (4) Change in the home surroundings. (5) One of the parties becoming mean to the child, or some other similar material change of conditions.” (Citations omitted.)

Since Leonard, the Texas courts have expanded the list to include many additional aspects of a child’s physical, mental, and moral well-being to be considered: moral and religious training, see T.A.B. v. W.L.B., 598 S.W.2d 936 (Tex.Civ.App.—El Paso 1980) writ ref’d n.r.e. Per Curiam, 606 S.W.2d 695 (Tex.1980); cert. denied, 454 U.S. 828, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981); remarriage of a parent, together with other factors affecting the welfare of the child, see Dohrmann v. Chandler, 435 S.W.2d 232 (Tex.Civ.App.—Corpus Christi 1968, no writ); and emotional health of the child, see L.P.W. v. S.O., 669 S.W.2d 182 (Tex.App.—Fort Worth 1984, no writ); Jeffers v. Wallace, 615 S.W.2d 252 (Tex.Civ.App.—Dallas 1981, no writ).

The threshold inquiry is whether circumstances of the child have so materially and substantially changed since the divorce decree as to cause injury to the children. In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). A change in circumstances must be found first before the court examines the other two elements that would support modification, i.e., that the retention of the present managing conservator would be injurious to the child and that the appointment of a new managing conservator would be a positive improvement for the child. D.W.D. v. R.D.P., 571 S.W.2d 224 (Tex.Civ.App.—Fort Worth 1978, writ ref’d n.r.e.).

To determine if there is any evidence of all of these elements, we consider all of the evidence in its most favorable light in support of the appellant’s position, disregarding all of the contrary evidence and inferences. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976); Guy v. Stubberfield, 666 S.W.2d 176 (Tex.App.—Dallas 1983, no writ); Cameron County Good Government League v. Ramon, 619 S.W.2d 224 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.).

The appellant husband argues that there is evidence which shows that the children did not have a stable and secure environment under appellee’s custody. The evidence at trial favorable to the appellant showed that, after the divorce, appellee moved the children from Corpus Christi to Houston in November 1981. She and the children first lived with her brother when they first moved to Houston. One month later, she and the children moved into her boyfriend’s mobile home. Appellee wife testified that four months later she and the children moved back into her brother’s home. She admitted that one of the reasons she left her boyfriend’s home was because of the pending litigation.

Next, appellant contends that the appel-lee wife neglected the children’s needs. Evidence was introduced by appellant at trial that showed that, since the divorce, the children had never been taken to a dentist and that they had visited the doctor only twice in 1982. Appellee wife testified that the younger child had a medical condition in which his thighs have grown inward. She testified that, during her separation from appellant, she took the child to a doctor once. She testified that she believed his legs were getting better but has not checked with a doctor since the initial visit during their separation. Both children have seen a counselor since the divorce. The appellee wife testified that the counsel- or told her that her older child had no self-image. According to the appellant and appellee, both children are afraid of meeting strangers. There was testimony that they are withdrawn and are afraid of being left alone. Appellee testified that the younger child was developing disciplinary problems at school. There was also testimony elicited from the appellee to the effect that the children had no formal religious training. Appellee said she had not taken the children to church since she moved to Houston. The appellant, prior to filing his motion to modify custody, took the younger child to see a doctor because he had bruises on his right hip. A Dr. Erikson testified at trial that he asked the child how he had received the bruises, to which he responded that appellee’s current husband “did it with his belt.” He testified that the bruises were in a peculiar position to have been received from ordinary play or romping around. The doctor surmised that the child was to a minor extent physically harmed and that he appeared to have some psychological repercussions from the incident. Appellant also testified that his daughter has a problem of writing backwards, which he believed should be investigated medically. He testified that, beginning in January 1982, he began having problems visiting the children and was not able to see the children for eight weeks at one period of time.

There was testimony that appellee’s boyfriend was not actually living with appellee immediately preceding the hearing, but was a frequent visitor and sometimes an overnight visitor in appellee’s home. There was also evidence that they slept in the same bedroom when the children were in the home. Apparently, during the course of the modification trial which lasted several days, appellee married the boyfriend. Knowledge of this marriage was not before the court as evidence when he made his ruling, but was commented upon by appel-lee’s attorney.

We conclude, after considering all of the evidence presented by appellant in the three-day trial, that such evidence raised a fact issue as to whether there was a change of circumstances since the divorce of such a material and substantial nature that the retention of the appellee as managing conservator would be injurious to the children.

Next, we consider all of the evidence to determine whether a fact issue is raised by the evidence regarding whether a change in the managing conservator would be a positive improvement for the children. Testimony of appellant and his wife was that they would have the children visit a doctor and a dentist regularly. There was testimony that the appellant had begun religious training of the children. Appellant’s wife testified that she got along with the children very well. Appellant testified that he has opened his own veterinary practice and is doing very well financially. The appellant’s home is in a rural setting. Examining the entire record, we find that there was ample evidence that would raise an issue of fact on whether a change of custody would be a positive improvement for the children.

In a non-jury trial, the trial judge occupies a dual role. He decides the law and weighs the evidence and determines the facts. An argument may be raised that a trial judge may decide the facts based only on plaintiff’s evidence if he is not convinced that plaintiff has proved his case by a preponderance of the evidence when plaintiff rests his case. There are problems inherent in this procedure. In the course of a trial, a party, because of trial tactics, may not wish to call a defense witness as its own, but may rely on the other party calling the witness and gain valuable testimony through the time-honored method for testing a witness’ credibility by cross-examination. For an example, in the case at bar, plaintiff’s attorney wanted the testimony of appellee’s husband. He was prohibited from calling him except as a hostile witness under the rules of evidence because he was not a party to the lawsuit.

Our system is an adversary system. This is so even when a case is tried to the court and not to a jury. A judge should have the benefit of all of the evidence before ruling. This is especially true when the plaintiff has established a prima facie case, as was done here. While judicial expediency might favor a judge deciding a case if he is not convinced the plaintiff has proven his case by a preponderance of evidence, trial procedure and, above all, judicial fairness, favors a judge deciding the case based upon all of the evidence which both parties wish to present. The intermediate appellate courts have historically interpreted TEX.R.CIV.P., 262 to allow a trial judge in a non-jury case to grant judgment at the close of plaintiff’s case only if no material issue of fact has been raised. Rule 262, as it is written and has been properly interpreted, is the best result for our judicial system.

Because the trial court is vested with a broad degree of discretion in matters of determining custody, we express no opinion on how these fact issues should be resolved upon retrial of all the evidence. This is especially true since the appellee has not presented any evidence in opposition to the evidence presented by the appellant. The trial judge was not at liberty to grant judgment for the appellee when the evidence presented raised issues of fact that would support modification on the part of the petitioner. See Guy v. Stubberfield; Kirkwood v. Kirkwood; and Guthrie v. Ray.

Appellant’s point of error is sustained, and the judgment of the trial court is reversed and the cause is remanded for another trial.

SEERDEN, J., concurs.

GONZALEZ, J., dissents.

1 . Act of June 19, 1975, Ch. 476, § 29 Tex. Sess.Law Serv. 1265 (Vernon), amended by Act of June 17, 1983, Ch. 424, § 9 Tex.Sess.Law Serv. 2365 (Vernon).