Monica Murray v. Cornelius Pappion--Appeal from 301st District Court of Dallas County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-00-00082-CV

Case Date: 09/06/2000

Plaintiff: Monica Murray

Defendant: Cornelius Pappion--Appeal from 301st District Court of Dallas County

Preview:Monica Murray v. Cornelius Pappion--Appeal from
301st District Court of Dallas County
Monica Murray v. Cornelius Pappion /**/
IN THE
TENTH COURT OF APPEALS
No. 10-00-082-CV
MONICA MURRAY,
Appellant
v.
CORNELIUS PAPPION,
Appellee
From the 301st District Court
Dallas County, Texas
Trial Court # 92-15407-T
O P I N I O N
Appellant Murray appeals from an order of the trial court denying her motion to modify the sole managing
conservatorship of her seven year old son.
In 1989, Appellant, age 18, began dating appellee Cornelius Pappion, age 23. As a result of their relationship, Ethan
Pappion was born September 6, 1991. The trial court appointed appellant as managing conservator of the child and
appellee as possessory conservator on August 24, 1993. In June 1998, appellant married Scott Murray. On August 11,
1998, the trial court granted a motion to modify filed by appellee and appointed him managing conservator. On
September 14, 1998, appellant filed a motion to modify seeking appointment as managing conservator of her son. Trial
was on August 27, 1999, resulting in denial of appellant s motion to modify.
Appellant appeals on one issue: Whether the trial court abused its discretion and committed error in denying appellant
s motion to modify the sole managing conservatorship of the minor child herein.
Section 156.101 Texas Family Code: Grounds for Modification of Sole Managing Conservatorship provides:
(a) The Court may modify an order that designates a sole managing conservator of a child of any age if:
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(1) the circumstances of a child, the sole managing conservator, possessory conservator, or other party affected by the
order have materially and substantially changed since the date of the rendition of the order, and
(2) the appointment of the new sole managing conservator would be a positive improvement for the child.
The trial court has broad discretion in deciding the issue of modification and its judgment will not be reversed except
on a clear showing of abuse of discretion. Doyan v. Doyan, 713 S.W.2d 370, 372 (Tex. App. Beaumont 1986, no writ);
Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. App. Dallas 1981, no writ); Herrera v. Herrera, 409 S.W.2d 395, 396
(Tex. 1966).
A trial court as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex. App. Houston [1st Dist.] 1994, no writ); Taylor v.
Meek, 276 S.W.2d 787, 790 (Tex. 1955); McGallard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
Abuse of discretion is determined by whether the court acted without reference to any guiding principles, in other
words, whether the act was arbitrary or unreasonable. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex.
1939); Worford v. Worford, 801 S.W.2d 108, 109 (Tex. 1990).
In this case, no findings of fact or conclusions of law were requested or filed. It is therefore implied that the trial court
made all findings necessary to support its judgment. Worford, supra, p. 109.
The child was born in September 1991; Appellant was appointed managing conservator in August 1993; Appellant
married Scott Murray in June 1998; Appellee was appointed managing conservator in August 1998; and in September
1998, appellant filed this motion to modify. Trial was had in August 1999, resulting in denial of appellant s motion.
Appellant contends the trial court abused its discretion in not granting her motion to modify; that the circumstances of
the child have materially and substantially changed since the August 1998 order granting appellee managing
conservatorship; and that appointment of appellant would be a positive improvement for the child.
Appellant asserts that she has proved the existence of a change of circumstances. She asserts there is evidence the child
has grown angry and defiant, suffers mood swings and acts out at school since living with appellee. However, the
evidence also shows that as early as two years before the August 1998 order, the child had begun a pattern of
aggressiveness at school, and that he had begun acting out as early as preschool. There is also evidence the child
showed signs of depression prior to appellee s obtaining custody.
Appellant asserts her now stable marriage to Mr. Murray provides better living conditions for the child. But appellant
and Murray were married prior to the August 1998 order. As such, no material or substantial change exists because of
this fact.
Appellant, citing Dr. Goldman s report (a psychiatrist employed by appellant), asserts appellee is not consistent with
follow through. Nevertheless, Dr. Goldman s report reflects that the child s behavior has improved.
Appellant asserts the child has been tardy for school many times since living with appellee after the August 1998
order. However, the child s teachers report that his attendance was average to above average.
Appellant contends that evidence of recent ecopresis (inability to control bowels) results from stress and anxiety and is
a change in circumstances. There is evidence that the child has no problems controlling his bowels. However, even if
he did, this does not necessarily constitute a material and substantial change in the child s circumstances.
The record contains much evidence that the child had significant problems prior to the August 1998 order. The trial
court presumed finding that there had been no change was not arbitrary, unreasonable, or an abuse of discretion.
Appellant contends she has proven that her appointment as new managing conservator of the child would be a positive
improvement for the child. She asserts that her stable marriage to Scott Murray, that the fact she and Mr. Murray have
had a baby, and that Dr. Goldman is of the opinion the child would be better off going back to her custody establishes
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this. There is also evidence that the contrary is true. Additionally, the trial court did not have to believe Dr. Goldman.
Dr. Goldman based his testimony and report on his interview with appellant and the child. He never spoke with
appellee and testified he had done only one child custody evaluation prior to this case.
Under the authorities cited, the trial court was authorized to believe that appellant had not proven that a material and
substantial change of circumstances had occurred since rendition of the August 1998 order, or that the appointment of
appellant as managing conservator would be a positive improvement for the child.
The trial court did not abuse its discretion in denying the motion to modify.
The order of the trial court is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Vance, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed September 6, 2000
Do not publish
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