In Re HSN

69 S.W.3d 829, 2002 WL 254165
CourtCourt of Appeals of Texas
DecidedFebruary 21, 2002
Docket13-01-00208-CV
StatusPublished

This text of 69 S.W.3d 829 (In Re HSN) 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 HSN, 69 S.W.3d 829, 2002 WL 254165 (Tex. Ct. App. 2002).

Opinion

69 S.W.3d 829 (2002)

In the Interest of H.S.N., A Minor Child.

No. 13-01-00208-CV.

Court of Appeals of Texas, Corpus Christi.

February 21, 2002.

*830 Leonard E. Peters, Columbus, for Appellant.

Rhonda E. Winstead, Appellee Pro Se.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

OPINION

Opinion by Justice HINOJOSA.

This is an appeal from the trial court's judgment in a suit to modify the parent-child relationship. In three points of error, appellant, Dustin Wayne Noska, contends the trial court erred by: (1) awarding attorney's fees to appellee, Rhonda Elaine Winstead, (2) changing the existing possession order to a standard possession order, and (3) increasing the child support retroactively. We affirm.

A. BACKGROUND

In 1994, Winstead and Noska were divorced in the 25th District Court of Colorado County, Texas. Winstead was named managing conservator of their minor child, H.S.N. Noska was named possessory conservator of H.S.N. and was ordered to pay child support. Although the record does not specifically set forth the amount of child support Noska was ordered to pay when the parties were first divorced, references are made that it was set at $185.00 *831 per month, and the record establishes that in October 1996, Noska was ordered to pay $185.00 per month.

On June 16, 2000, Winstead filed a "Motion to Transfer" and "Petition to Modify the Parent-Child Relationship" in the 25th District Court. In the motion to transfer, Winstead asserted that H.S.N.'s principal residence was in Bee County, Texas, and that Bee County had been the child's principal residence during the six-month period preceding the filing of the motion and petition. On August 18, 2000, the judge of the 25th District Court granted Winstead's motion to transfer and ordered the case transferred to Bee County.

On December 21, 2000, Winstead also filed a "Motion for Enforcement of Child Support" in the 156th District Court of Bee County, asserting that Noska had not paid his child support. Noska was ordered to appear.

On December 22, 2000, the trial court heard the petition to modify and signed an order modifying the prior order. The court ordered that Noska have standard possession of the child, and that the child support be increased to $263.60 per month, retroactive to July 1, 2000. The trial court also awarded attorney's fees in the amount of $950.00, which the court found "were incurred in relation to the child and are in the nature of child support."

B. STANDARD POSSESSION ORDER

In his second point of error, Noska complains the trial court erred in changing the existing possession order to a standard possession order. Noska contends there is no probative evidence to support changing the existing possession order.[1]

The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child. Tex. Fam.Code Ann. § 153.002 (Vernon 1996). Trial courts have wide discretion in determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.-Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best interest of the child with regard to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court and will only be reversed upon a determination that the trial court has abused its discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.-Corpus Christi 1990, writ denied). This is because the trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel forces, powers, and influences that cannot be discerned by merely reading the record. In the Interest of T ___, 715 S.W.2d 416, 418 (Tex.App.-Dallas 1986, no writ). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d *832 108, 109 (Tex.1990). "In a suit, there is a rebuttable presumption that [a] standard possession order provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and is in the best interest of the child." Tex. Fam.Code Ann. § 153.252 (Vernon 1996).

Former section 156.301 of the Texas Family Code provided:

The court may modify an order that sets the terms and conditions for possession of or access to a child or that prescribes the relative rights, privileges, duties, and powers of conservators if:
(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the rendition of the order;
(2) the order has become unworkable or inappropriate under existing circumstances;
(3) the notice of the change of the conservator's residence required by Chapter 105 was not given or there was a change in a conservator's residence to a place outside the state;
(4) a conservator has repeatedly failed to give notice of an inability to exercise possessory rights; or
(5) a conservator of the child has had a significant history of alcohol or drug abuse since the date of the rendition of the order.

Act of June 19, 1999, 76th Leg., R.S., ch. 1390, § 17(a), 1999 Tex. Sess. Law Serv. 4700 (Vernon), repealed by Act of June 16, 2001, 77th Leg., R.S., ch. 1289, § 12(2), 2001 Tex. Sess. Law Serv. 2948 (Vernon).[2]

During the December 22nd hearing, Winstead testified:

Attorney: And you are also asking the Court, as part of this, to modify the visitation to a standard possession order; is that correct?

Winstead: Yes.

Attorney: There is a little confusion over who lived where and what the transportation and who was required and so you've asked the Court just to make it a standard possession order.

Winstead: Yes.
* * * * * *

Attorney: I prepared two certificates of last known address, Your Honor. We had an address in Katy, Texas. We know that is not good.

The Court: You know that's no good.

Attorney: Right. We know he works for the police department. That's where he's served. So I felt that it ought to be the police department that we send the notice to.

The Court: Certainly.

The residences of the parties had changed since the rendition of the original order. Winstead and H.S.N. moved from Colorado County to Bee County. Noska apparently still lived in Colorado County, but his exact address was unknown. A review of the evidence establishes that Noska had not provided written notice to Winstead of the change in his residence address. See Tex. Fam.Code Ann.

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Bluebook (online)
69 S.W.3d 829, 2002 WL 254165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hsn-texapp-2002.