Prause v. Wilder

820 S.W.2d 386, 1991 Tex. App. LEXIS 2882, 1991 WL 245553

• Court: Court of Appeals of Texas
• Decided: November 26, 1991
• Docket: 6-91-033-CV
• Status: Published

Opinions

OPINION

BLEIL, Justice.

Mark Prause appeals the trial court’s judgment declining to modify the visitation provisions contained in the original divorce decree. The issue on appeal is whether the trial court abused its discretion in failing to modify the visitation provisions contained in the original decree. Mark Prause contends that the visitation provision should be modified to reflect the standard guidelines for visitation. We determine that the trial court did not abuse its discretion in failing to modify the visitation provision, and therefore affirm the judgment.

Mark and Jill Prause divorced on January 19, 1987. Jill Prause was appointed managing conservator of the child born of this marriage, and Mark Prause was appointed possessory conservator. The pos-sessory conservator was given visitation one weekend per month, two weeks each year, alternating years for Easter, Christmas and Thanksgiving, and at other times the parties agreed upon. Mark Prause brought suit to modify the visitation order so it would reflect the standard guidelines set out in the Family Code, as amended in 1989. Tex.Fam.Code Ann. § 14.033 (Vernon Supp.1991).

The party requesting the modification must show that the circumstances of the child have been materially or substantially changed since the decree was entered, or that the underlying decree has become unworkable or inappropriate. Tex. Fam.Code Ann. § 14.08(c)(3)(A), (B) (Vernon Supp.1991). The standard guidelines for visitation may be relied upon by the court in reaching its decision. Tex.Fam.Code Ann. § 14.033(o). There is also a rebut-table presumption that the standard order provides a reasonable minimum visitation and that it is in the best interests of the child. MacCallum v. MacCallum, 801 S.W.2d 579, 585 (Tex.App.—Corpus Christi 1990, writ denied); Tex.Fam.Code Ann. § 14.033(k). However, the primary consideration of the court in determining the questions of managing conservatorship, possession, and support of and access to a child shall be the best interests of the child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.—Corpus Christi 1990, no writ); Tex.Fam.Code Ann. § 14.07(a) (Vernon 1986). The movant has the burden to establish that the proposed modification is in the best interests of the child. MacCallum v. MacCallum, 801 S.W.2d at 585.

Trial courts have wide discretion in determining the best interests of the child, and their judgments will only be reversed on appeal for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Weimer v. Weimer, 788 S.W.2d at 650. Because the trial court is afforded this broad discretion, the standard of review is narrowly limited to a determination of whether the trial court abused its discretion. Maixner v. Maixner, 641 S.W.2d 374, 376 (Tex.App.—Dallas 1982, no writ). The trial court has discretion because the court sees the parties and the witnesses, observes their demeanor, views their personalities, and senses the forces and powers which motivate them. Id. The trial court is in a much better position to determine what is in the best interests of the child. Id.

Mark Prause did not prove evidence that the current visitation order is unworkable or that a change would be in the best interests of the child. He testified that he wanted more visitation and that the present order was not unworkable. Both parties testified that the visitation dates set out in the decree are being met, that other dates were not being agreed upon, and would most likely not be agreed upon in the future. However, the fact that other dates are not being agreed upon does not by itself show that the order is unworkable. Any additional visitation dates are voluntary and up to the parties.

In this case, there are specified dates when visitation is to take place, and the specified dates have not become unworkable. Although these dates do not meet the standard guidelines, this fact alone will not require the decree to be modified. The trial court may use these guidelines in its analysis, but it is still within the trial court’s discretion to modify. Here, the trial court did not feel that the discrepancies between the original decree and the standard order were great enough to require that the decree be modified.

The trial court found that no change in the' visitation order would be in the best interests of the child. Since there is no showing that the trial court abused its discretion, this Court will not alter the trial court’s decision.

The trial court’s judgment is affirmed.