Melissa B. Ward v. James M. Ward ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-96-00683-CV

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Melissa B. Ward, Appellant

v.

James M. Ward, Appellee

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FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 145,455-D, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

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Appellant Melissa Ward appeals the trial court's judgment declining to modify the restrictive residence, visitation, and child support provisions of a prior final divorce decree entered into by agreement of the parties. In three points of error the appellant argues that the trial court abused its discretion by: (1) refusing to modify a restrictive residence provision requiring the child to remain in Bell County; (2) failing to modify the visitation provisions to reflect the standard guidelines for visitation; and (3) failing to order Appellee James Ward to pay child support in accordance with the Texas Child Support Guidelines. We determine that the trial court did not abuse its discretion in failing to modify the restrictive residence and visitation provisions of the agreed divorce decree, but reverse and remand on the issue of child support.

BACKGROUND

On May 10, 1994, James and Melissa Ward reached an agreement regarding final orders affecting the care and support of their only child. The agreement, which was approved and signed by the judge presiding over the contested divorce, contained three provisions relevant to this appeal. First, the parties agreed that Melissa Ward would be the child's managing conservator and that James Ward would be possessory conservator. As part of the possessory conservator provision, James Ward got possession of the child in excess of the statutory guidelines. Second, the parties agreed that the child's primary residence would be restricted to Bell County. Bell County was home to many of the child's extended family, including her grandparents, aunts, and uncles. This restrictive residence provision was subject to change only upon the parties' written agreement or by court order. Finally, as to financial support of the child, the parties agreed that each would pay one-half of the day care, health insurance, and uninsured medical expenses incurred on behalf of the child. Additionally, the parties stipulated and agreed that James Ward should not be ordered to pay child support at the time of the final divorce, but that stipulation would not bar Melissa Ward's right to seek modification of the decree regarding child support in the future.

Following the entry of the divorce decree, James Ward remarried, relocated, and changed jobs. He currently resides in McLennan County, less than twenty miles away from his daughter's home, and his new employment pays him approximately $10,000 more per year than he was making at the time of the divorce. His new salary represents an increase in net resources of about twenty-five percent more than his net resources at the time of the divorce.

Melissa Ward remains in Bell County with her daughter and currently makes about $300 per month less in net resources than James Ward. Melissa Ward sought to modify the restrictive residence provision in the agreed divorce decree in order to move with her daughter to Brazos County to live with her fiancee in Bryan, Texas. She sought modifications to the visitation and child support provisions because of James Ward's alleged failures to adhere to various provisions in the agreed divorce decree including: (1) moving to McLennan County without providing notice in accordance with their agreement; (2) repeatedly missing days he was supposed to spend with their child pursuant to the visitation orders; and (3) often missing payments for child care and health care expenses.

STANDARD OF REVIEW

The standard for review in this case is abuse of discretion. See Ex parte Rhodes, 352 S.W.2d 249, 252 (Tex. 1961) (appellate court will look with care to see whether there has been an abuse of discretion on part of court which denies permission to remove a restrictive residence provision from a divorce decree); Marriage of Hammer, 906 S.W.2d 263, 265 (Tex. App.--Amarillo, 1995 no writ) (exercise of court's power to modify parent's child support obligation will not be overturned unless clearly abused); Prause v. Wilder, 820 S.W.2d 386, 387 (Tex. App.--Texarkana 1991, no writ) (abuse of discretion standard is used to determine if trial court erred in failing to modify visitation provisions in divorce decree). The trial court has discretion because the court sees the parties and the witnesses, observes their demeanor, views their personalities, and senses the forces and powers that motivate them. Prause, 820 S.W.2d at 387. A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). This Court may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Buller, 806 S.W.2d at 226; Downer, 701 S.W.2d at 242.

DISCUSSION

The party requesting modifications to restrictive residence, visitation, and child support provisions in an agreed divorce decree must show that the circumstances of the child or a party affected by the order have materially and substantially changed since the date of the rendition of the order. See Tex. Fam. Code Ann. §§ 156.301, .401 (West 1996); Prause, 820 S.W.2d at 387. However, the primary consideration of the trial court in determining the questions of managing conservatorship, possession, support, and access to a child shall be the best interest of the child. Prause, 820 S.W.2d at 387; Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex. App.--Corpus Christi 1990, no writ).

In Melissa Ward's second and third points of error, she argues that the trial court abused its discretion by failing to modify the restrictive residence and visitation provisions in the agreed divorce decree. We disagree with both points. As to the issue of modifying the visitation order, the record shows that James Ward spent a considerable amount of time with his daughter and had a loving relationship with her. The record shows he spent between ten to fifteen days per month with his daughter, and that his daughter was very happy when she spent time with her father. Although James Ward did not specifically adhere to the visitation order because of his work schedule, he made substitute arrangements with Melissa Ward to have the child the same amount of time he was entitled to under the agreement. The trial court was well within its discretion in refusing to modify the visitation order to adhere to standard visitation guidelines.

We also disagree with Melissa Ward's argument that the trial court erred in refusing to modify the provision restricting the child's residence to Bell County. Melissa Ward contends that because James Ward violated various parts of the agreed divorce decree as discussed above, she should not be held to the agreement requiring their daughter to remain in Bell County. We do not find James Ward's violations dispositive on whether the trial court abused its discretion in refusing to modify the agreed divorce decree. As stated above, the ultimate test on whether a court should modify issues regarding a child in a divorce decree is the "best interest of the child." Weimer, 788 S.W.2d at 650 (best interest of child is always primary consideration of the court); see also Tex. Fam. Code Ann. § 156.302 (West 1996). We believe that the trial court did not abuse its discretion in finding that it would not be in the best interest of the child to allow Melissa Ward to move the child to Brazos County. In refusing to modify the residence restriction in the agreed divorce decree, the trial court found it beneficial for the child to grow up around her extended family and be in close proximity to her father. Furthermore, while it is true that James Ward moved from Bell County to McLennan County without properly notifying the court pursuant to the agreed decree, the record shows that his residence in McLennan County is less than twenty miles away from his daughter and has had no bearing on his daughter's primary residence or his access to the child. Moreover, James Ward stated that he would move back to Bell County if "that's what it [took] to keep his daughter [there]." However, allowing Melissa Ward to move their daughter to Brazos County would put the child approximately one hundred miles away from her father and her extended family, as well as establish a residency which contravenes the parties' agreement. Therefore, we hold that the trial court did not abuse its discretion in refusing to modify the visitation order and the restrictive residence provisions of the final divorce decree. We overrule Melissa Ward's second and third points of error.

In her first point of error, Melissa Ward argues that the trial court abused its discretion in refusing to modify the agreed divorce decree regarding child support. The record shows that James Ward's salary has increased by $10,000 since the time of the divorce. His net resources have increased by approximately twenty-five percent. In addition, James Ward has stated in open court that his primary concern is being near his child and that he has no objection to a reexamination of the child support issue. While it is a close question under an abuse of discretion standard, we hold that under the facts and circumstances present here, the cause should be reversed and remanded for reconsideration of the child support issue. We therefore sustain Melissa Ward's first point of error.

CONCLUSION

We affirm the judgment of the trial court denying appellant's petition to modify the residence restriction and visitation order of the original agreed divorce decree. We reverse the judgment of the court refusing to modify child support and remand this cause for reconsideration of that portion of the divorce decree.

Mack Kidd, Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed in Part; Reversed and Remanded in Part

Filed: October 30, 1997

Do Not Publish

M>Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex. App.--Corpus Christi 1990, no writ).

In Melissa Ward's second and third points of error, she argues that the trial court abused its discretion by failing to modify the restrictive residence and visitation provisions in the agreed divorce decree. We disagree with both points. As to the issue of modifying the visitation order, the record shows that James Ward spent a considerable amount of time with his daughter and had a loving relationship with her. The record shows he spent between ten to fifteen days per month with his daughter, and that his daughter was very happy when she spent time with her father. Although James Ward did not specifically adhere to the visitation order because of his work schedule, he made substitute arrangements with Melissa Ward to have the child the same amount of time he was entitled to under the agreement. The trial court was well within its discretion in refusing to modify the visitation order to adhere to standard visitation guidelines.

We also disagree with Melissa Ward's argument that the trial court erred in refusing to modify the provision restricting the child's residence to Bell County. Melissa Ward contends that because James Ward violated various parts of the agreed divorce decree as discussed above, she should not be held to the agreement requiring their daughter to remain in Bell County. We do not find James Ward's violations dispositive on whether the trial court abused its discretion in refusing to modify the agreed divorce decree. As stated above, the ultimate test on whether a court should modify issues regarding a child in a divorce decree is the "best interest of the child." Weimer, 788 S.W.2d at 650 (best interest of child is always primary consideration of the court); see also Tex. Fam. Code Ann. § 156.302 (West 1996). We believe that the trial court did not abuse its discretion in finding that it would not be in the best interest of the child to allow Melissa Ward to move the child to Brazos County. In refusing to modify the residence restriction in the agreed divorce decree, the trial court found it beneficial for the child to grow up around her extended family and be in close proximity to her father. Furthermore, while it is true that James Ward moved from Bell County to McLennan County without properly notifying the court pursuant to the agreed decree, the record shows that his residence in McLennan County is less than twenty miles away from his daughter and has had no bearing on his daughter's primary residence or his access to the