in the Interest of C.A., C.A. and S.A., Minor Children ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00213-CV

In the Interest of C.A., C.A. and S.A.,

minor children,

From the 411th District Court

San Jacinto County, Texas

Trial Court No. 11539

MEMORANDUM  Opinion

In 2002, Charlotte Augustine Manor and Matthew Augustine were divorced according to a court-approved agreed divorce decree.  According to the terms of the agreement, Matthew was appointed Sole Managing Conservator, and Charlotte was appointed Possessory Conservator of their three children.  In 2004, Charlotte filed a motion for enforcement and contempt findings and a motion for modification of conservatorship.  The trial court denied both of these motions, and Charlotte now appeals in four issues: (1) abuse of discretion by refusing to find Mathew in contempt of court; (2) abuse of discretion by refusing to name her managing conservator of S.A.; (3) abuse of discretion by refusing to find Matthew liable for interference with her possessory rights; and (4) whether a mandamus will issue when a court refuses to enforce its own orders.

ISSUE ONE: CONTEMPT

Charlotte argues that the trial court should have held Matthew in contempt for failing to produce S.A. at the hearing on her motions.

The trial court ordered Matthew to produce all three children at the hearing on Charlotte’s motions.  Matthew produced two of the children and the following dialogue appears in the record:

THE COURT: Okay.  I need both of you - - do you have any other witnesses here in the courtroom that you want to testify?

MS. MANOR: Yes, my three kids.  But the other two ain’t here, and I want to hold him in contempt to the order of the court for that.

It appears that the trial judge did not rule on her “request” for contempt.  Regardless, there is nothing in the record to show that Charlotte requested a ruling on her “request” or that she objected to the court’s refusal to rule.  Tex. R. App. P. 33.1.  Thus, Charlotte has not preserved her complaint for appeal.  We overrule issue one.

ISSUE TWO: MANAGING CONSERVATOR

Charlotte argues that because Matthew has voluntarily relinquished the primary care and possession of S.A. to Robin Manor[1] for six months, Charlotte should be appointed managing conservator.

The Family Code states:

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:

 . . .

(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Tex. Fam. Code Ann. § 156.101(3) (Vernon Supp. 2004-05) (emphasis added).  The party seeking modification has the burden to establish these elements.  In re T.D.C., 91 S.W.3d 865, 871 (Tex. App.—Fort Worth 2002, pet. denied).  The best interest of the child must be the court’s primary concern in such proceedings.  Tex. Fam. Code Ann. § 153.002 (Vernon 2002); In re T.D.C., 91 S.W.3d at 873.

We review a trial court’s decision on a motion to modify conservatorship under an abuse of discretion standard.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The trial court’s order will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.  Id.  The trial court is in the best position to observe the demeanor and personalities of the witnesses and can “feel the forces, powers, and influences that cannot be discerned by merely reading the record.” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ).  The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted without reference to any guiding principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).  An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.—El Paso 2000, no pet.).

A hearing was held on Charlotte’s motion to modify conservatorship, and the trial court entered a written order after the hearing.  The trial court filed findings of fact that state: (1) the two children who testified denied any bad conduct by Matthew;[2] and (2) the testimony at the divorce proceeding showed Terry James[3] had a prior felony conviction and was accused of improper conduct with the minor children when they were in the custody of Ms. Manor.[4] The trial court’s conclusions of law state: (1) Circumstances of the children have not changed; and (2) it would not be in the children’s best interest for them to be in the primary care of their mother.

We find that the trial court did not abuse its discretion in denying Charlotte’s motion for modification of conservatorship.  See Tex. Fam. Code Ann. §§ 156.101(3), 153.002; In re T.D.C., 91 S.W.3d at 871, 873.  We overrule issue two.

ISSUE THREE: ENFORCEMENT

Charlotte states that she was refused visitation on August 17, 2003.  She argues this interfered with her possessory rights and the trial court should have enforced the divorce decree against Matthew and held him in contempt.

At the hearing on this motion, Charlotte did not adduce any evidence relating to any incidents on August 17, 2003.  We overrule issue three.

ISSUE FOUR: MANDAMUS

Charlotte asks whether a mandamus will issue when a court refuses to enforce its own orders.  This is a request for an advisory opinion. Courts have no jurisdiction to issue advisory opinions.  Tex. Const. art. II, § 1; Speer v. Presbyterian Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993).  We overrule issue four.

CONCLUSION

Having overruled all of Charlotte’s issues, we affirm the trial court’s denial of both of her motions.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 20, 2005

[CV06]

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    [1]       We believe Robin Manor is S.A.’s grandmother.

    [2]       S.A. did not testify at the hearing.

    [3]       We believe Charlotte had a relationship with Terry James.  The present nature of this relationship is unclear although Terry testified at the hearing on Charlotte’s motions.

    [4]       We believe the court is referring to Charlotte Augustine Manor in this finding.