In the Interest of J.E.P.

49 S.W.3d 380, 2000 Tex. App. LEXIS 6837
CourtCourt of Appeals of Texas
DecidedOctober 12, 2000
DocketNo. 2-99-402-CV
StatusPublished
Cited by24 cases

This text of 49 S.W.3d 380 (In the Interest of J.E.P.) 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 the Interest of J.E.P., 49 S.W.3d 380, 2000 Tex. App. LEXIS 6837 (Tex. Ct. App. 2000).

Opinion

OPINION

LEE ANN DAUPHINOT, Justice.

INTRODUCTION

Appellant C.M.P. (Father) appeals from the trial court’s order modifying the terms and conditions of Appellee C.P.’s (Mother) possession of and access to their two minor children. Because we hold that the modifications do not amount to a de facto change of conservatorship, and because the trial court did not abuse its discretion in ordering the modifications, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father were divorced in 1995. Under the divorce decree, the court appointed Father the sole managing conservator of the children, and appointed Mother the possessory conservator. Mother received the right to possession of J.E.P. and S.M.P. beginning at noon on the Wednesday following the first, third, and fifth Fridays of each month until 9:00 a.m. of the next first, third, or fifth Friday of each month, as well as 42 days of extended summer possession. Father received a superior right of possession of J.E.P. and S.M.P. beginning at 9:00 a.m. on the first, third, and fifth Fridays of each month, and continuing until noon the following Wednesday, as well as extended summer possession of 21 days. Therefore, in each fourteen-day period, Mother had possession of the children for eight days and 21 hours, and Father had possession for the remaining five days and three hours. Each parent had possession of the children for one weekend per fourteen-day period.

In 1996, Father filed a motion to modify the original decree, asking the court to substitute a standard possession order for the terms set out in the 1995 decree. Mother responded with a countermotion to modify, seeking to be appointed joint managing conservator, as well as to modify the possession and access ordered in the 1995 decree such that she would receive “primary possession” of the children. At the time of the hearing, J.E.P. was sixteen and S.M.P. was eleven. On October 1, 1999, the trial court entered an “Order Modifying Prior Order” (the “Order”) that, while maintaining Father’s status as sole managing conservator, awarded to Mother periods of possession of J.E.P. in nine-day blocks, beginning at 6:00 p.m. on the first, third, and fifth Fridays of each month and continuing until 6:00 p.m. nine days later. In addition, the Order granted Mother the exclusive right to determine where the children attend school, whether public or private.

Father’s appeal from the Order centers around the fact that in modifying the terms of the previous possession order, the court denied him all weekend access to J.E.P. during the school year. Father also complains that the Order shortens his 21-day summer possession of J.E.P. to “any one weekend beginning at 6:00 p.m. Friday and ending at 6:00 p.m. Sunday.”

In his first issue, Father argues that the Order, by awarding “substantially all possession of [J.E.P.] to [Mother],” constitutes a de facto change in conservatorship that is not supported by findings of fact or evidence. In issues two and three, Father argues in the alternative, challenging the legal and factual sufficiency of the evidence to support the court’s findings. Finally, in his fourth issue, Father contends [383]*383that the trial court abused its discretion in specifying periods of possession such that Father, as sole managing conservator, received no weekend possession of J.E.P.

DISCUSSION

DE FACTO CHANGE OF CONSERVATORSHIP

As Father concedes, Mother’s counter-motion to modify sought not only her appointment as joint managing conservator, but also a modification of the possession and access ordered by the 1995 divorce decree. Section 156.301 of the family code sets forth the grounds under which a court can modify possession and access. That section provides, in relevant part:

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 and duties 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; [or]
(2) the order has become unworkable or inappropriate under existing circumstances.1

In this case, the trial court specifically found that the terms for possession set forth in the 1995 decree “ha[d] become unworkable under the existing circumstances for the minor children of the marriage,” and thus proceeded to modify those terms. Father argues, however, that the nature of the modifications are such that they deprive him, as sole managing conservator, of “virtually all meaningful visitation.” This, along with the shift in the right to control the children’s education, Father contends, amounts to a de facto change in conservatorship, made without compliance with the more stringent requirements set forth in section 156.104 for a modification from a sole managing con-servatorship to a joint managing conserva-torship. That section provides:

(a) The court may modify an order that designates a sole managing conservator if a parent of the child requests appointment as a joint managing conservator and the court finds that:
(1) the circumstances of the child or the sole managing conservator have materially and substantially changed since the rendition of the order;
(2) retention of a sole managing conservatorship would be detrimental to the welfare of the child; and
(3) the appointment of the parent as joint managing conservator would be a positive improvement for and in the best interest of the child.2

In support of his argument, Father points to our decision in Dalton v. Doherty where we examined the issue of when an order that purports to modify only possession rights actually amounts to a de facto change in conservatorship in the absence of evidence to support such a change.3 There, the original divorce decree appointed the father managing conservator and the mother possessory conservator, but gave each parent the right to have possession of the children “half the time.”4 Pursuant to the father’s subsequent motion to modify the original decree in order to specify the mother’s periods of possession, [384]*384the court, while retaining the mother’s status as possessory conservator, ordered that she was to have possession of the older child on odd weekends and the younger child “at all times except even weekends of each month.”5 Accordingly, the father received possession of the younger child only during even weekends.6

On appeal by the father, we held that the order did not merely modify the mother’s visitation rights; rather, it “effectively changed the managing conservatorship of the younger child from the father to the mother.”7 By granting the mother possession of the child at all times except even weekends, we reasoned, “the order operated to completely deprive the father of his function as managing conservator of the younger child.”8 We held, therefore, that the order constituted a de facto change in managing conservatorship of the younger child that was not supported by the evidence.9

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Cite This Page — Counsel Stack

Bluebook (online)
49 S.W.3d 380, 2000 Tex. App. LEXIS 6837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jep-texapp-2000.