In Re APS

54 S.W.3d 493, 2001 WL 928912
CourtCourt of Appeals of Texas
DecidedAugust 16, 2001
Docket06-00-00167-CV
StatusPublished

This text of 54 S.W.3d 493 (In Re APS) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re APS, 54 S.W.3d 493, 2001 WL 928912 (Tex. Ct. App. 2001).

Opinion

54 S.W.3d 493 (2001)

In the Interest of A.P.S. and A.M.S., Children.

No. 06-00-00167-CV.

Court of Appeals of Texas, Texarkana.

Submitted August 1, 2001.
Decided August 16, 2001.

*494 J. Stephen Walker, The Moore Law Firm, LLP, Paris, for appellant.

Dianne M. Sprague, Clarksville, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

*495 OPINION

Opinion by Justice ROSS.

Shannon Silva appeals the trial court's modification of the custody of her two daughters. Under the previous order, both Shannon and the children's father, Tracy Silva, were named as joint managing conservators. In the modification order, Tracy is named as the sole managing conservator and Shannon is appointed possessory conservator, with possession of the children "at reassonable [sic] times and places as determined by Tracy Shane Silva."

In three points of error, Shannon contends that the trial court abused its discretion by modifying the custody arrangement, that the trial court's failure to award her standard visitation was based on insufficient evidence, and that the trial court's modified custody order effectively denied her access to the children.

Shannon and Tracy were divorced in November 1999. The divorce decree named the parties as joint managing conservators of their two young girls, with Shannon having the right to determine the children's residence. Tracy was given visitation under a standard possession order. Shannon and the two girls resided with Shannon's parents in Georgia, but in March 2000 she brought the girls to Texas. While the girls were in Texas, Tracy filed a petition to modify the parent-child relationship, asking the court to appoint him as sole managing conservator of the children. He also asked for a temporary restraining order against Shannon, denying her access to the girls. The trial court granted this restraining order. After a hearing on the merits of Tracy's petition to modify, the trial court appointed Tracy sole managing conservator and Shannon possessory conservator.

In her first point of error, Shannon contends the trial court abused its discretion by modifying the custody arrangement from a joint managing conservatorship to a sole managing conservatorship. A court may replace a joint managing conservatorship with a sole managing conservatorship if "the child's present living environment may endanger the child's physical health or significantly impair the child's emotional development... and ... the appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child." Tex. Fam.Code Ann. § 156.203 (Vernon 1996). We review the trial court's modification of a joint managing conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In re Moss, 887 S.W.2d 186, 188 (Tex.App.-Texarkana 1994, no writ). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). In our review of modification under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in deciding whether the trial court abused its discretion. In re Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.-Texarkana 1995, no writ).

At the custody hearing, testimony revealed that the two girls had lived with their mother and her parents in Georgia since the divorce. Shannon brought the girls to Texas in March 2000, and events that occurred while they were in Texas prompted Tracy to petition the court to modify the custody agreement. The trial court heard testimony from Tracy, Shannon, many family members, a police officer, and a schoolteacher.

*496 According to Shannon's testimony, she brought the girls to Texas in March 2000 to visit their father. One evening, after she and the girls were forced to leave the motel where they were staying, they went to Tracy's parents' house. Tracy's parents were not home, but Tracy's brother's wife, Pam Silva, was there. Later in the evening, Tracy came to the house. According to Shannon, Tracy had been drinking and the two of them got into a heated argument during which he struck her across the left side of her face, hit her on the forehead, and shoved her to the ground. Shannon waited until Tracy left and then called the police and filed charges against him. The next day Shannon called Tracy and told him that she wanted to work through the problems that had occurred the day before and that she wanted to drop the charges against him. Tracy and his parents met Shannon and the girls at a restaurant. At this meeting, Tracy told Shannon he wanted the girls and forcibly took them from Shannon. He also took a file from Shannon containing the girls' birth certificates and medical records. Shannon then returned to Georgia.

Tracy's testimony concerning these events presents a striking contrast to Shannon's testimony. Tracy testified that he went to his parents' house the night of the altercation to pick up the girls and take them shopping for clothes because Shannon had brought them to Texas with only the clothes they were wearing. On arrival, he found that Shannon smelled of alcohol and was drunk. According to Tracy, Shannon reacted violently to his presence and began screaming obscenities at him in front of the girls. One of the girls attempted to leave the house to go with him, but Shannon grabbed her by the hair and yanked her back in the house. Tracy testified that although he did push Shannon in the chest, he did so only as a defensive measure because she was about to attack him. Tracy left without the girls and was arrested that night. When he and his parents met Shannon and the girls at the restaurant the next day, Shannon threatened to kill herself and voluntarily relinquished the girls and their records to him. Concerning Shannon's treatment of the girls, Tracy testified that Shannon yanked the girls by their arms and hair, drove recklessly with them in the car, and threatened to shave one of the girl's head. He further testified that Shannon's parents were caring for the children, not Shannon. He said that Shannon made false allegations of abuse when she feared that Tracy would seek custody of the children, that Shannon carried a loaded pistol with her at all times, that Shannon could not hold a job, that Shannon did not seek proper medical attention for the children, and that Shannon was suicidal.

Tracy's sister-in-law, Pam, testified to the same version of events as Tracy, but added that on the evening of the altercation at Tracy's parents' house, she saw Shannon consume a beer, four shots of vodka, and a mixed drink before Tracy arrived, and that after Tracy left, Shannon asked for mouthwash and waited fifteen minutes before calling the police. Pam further stated that Tracy was sober and only raised his hands against Shannon in defense.

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820 S.W.2d 386 (Court of Appeals of Texas, 1991)
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Downer v. Aquamarine Operators, Inc.
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Gillespie v. Gillespie
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In the Interest of A.P.S.
54 S.W.3d 493 (Court of Appeals of Texas, 2001)

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Bluebook (online)
54 S.W.3d 493, 2001 WL 928912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aps-texapp-2001.