in the Interest of M.S.F. and M.S.F., Children
383 S.W.3d 712
Tex. App.2012Background
- Amanda and Rex divorced in 2008; initial order gave Amanda the right to designate the children’s primary residence and appointed joint managing conservators.
- Rex petitioned on 1/11/2011 to modify conservatorship and gain right to designate the primary residence; sought temporary conservatorship leadership.
- Trial occurred 7/11/2011; Rex highlighted Amanda’s post-divorce lifestyle with Brian and the birth of two more children.
- Rex testified the girls became more closed and in need of medical care and hygiene deteriorated since the new family dynamic.
- Amanda presented teachers’ testimony praising the girls; disputed Rex’s claims about care and hygiene.
- Trial court found a material and substantial change in circumstances and that appointing Rex as joint managing conservator with the right to designate primary residence would be in the best interests of the girls; written findings of fact supported these conclusions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material change in circumstances to modify conservatorship | Amanda argues no material change; evidence centers on lifestyle | Rex contends changes in circumstances since divorce justify modification | Yes, material change supported the modification |
| Best interests of the children supporting Rex’s appointment | Amanda contends modification not in best interests | Rex contends best interests require Rex to designate residence | Yes, best interests support Rex as joint managing conservator with right to designate residence |
Key Cases Cited
- Zeifman v. Michels, 212 S.W.3d 582 (Tex.App. -- Austin 2006) (abuse of discretion standard in modification of conservatorship)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard and review framework)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse of discretion and standard-of-review guidance)
- In re An Unborn Child, 153 S.W.3d 559 (Tex.App. -- Amarillo 2004) (findings and sufficiency when reviewing trial court conclusions)
- Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (guidance on best-interest and discretion in conservatorship)
- George v. Jeppeson, 238 S.W.3d 463 (Tex.App. -- Houston [1st Dist.] 2007) (credibility and witness evaluation in appellate review)