Rosemary Moore, Individually and on Behalf of the Estate of Heather Moore, Deceased v. Mark E. Sutherland, M.D., and Collom & Carney Clinic Association--Appeal from 202nd District Court of Bowie Count

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2003 » Rosemary Moore, Individually and on Behalf of the Estate of Heather Moore, Deceased v. Mark E. Sutherland, M.D., and Collom & Carney Clinic Association--Appeal from 202nd District Court of Bowie Count

State: Texas

Court: Texas Northern District Court

Docket No: 06-02-00014-CV

Case Date: 05/22/2003

Plaintiff: Wenona Parrish Corbett

Defendant: Cattlemen's Livestock Market, Inc.--Appeal from 115th District Court of Upshur County

Preview:In the Interest of C.A., C.A. and S.A., minor children--
Appeal from 411th District Court of San Jacinto
County
IN THE
TENTH COURT OF APPEALS
No. 10-04-00213-CV
In the Interest of C.A., C.A. and S.A.,
minor children,
From the 411th District Court
San Jacinto County, Texas
Trial Court No. 11539
MEMORANDUM Opinion
In 2002, Charlotte Augustine Manor and Matthew Augustine were divorced according to a court-approved agreed
divorce decree. According to the terms of the agreement, Matthew was appointed Sole Managing Conservator, and
Charlotte was appointed Possessory Conservator of their three children. In 2004, Charlotte filed a motion for
enforcement and contempt findings and a motion for modification of conservatorship. The trial court denied both of
these motions, and Charlotte now appeals in four issues: (1) abuse of discretion by refusing to find Mathew in
contempt of court; (2) abuse of discretion by refusing to name her managing conservator of S.A.; (3) abuse of
discretion by refusing to find Matthew liable for interference with her possessory rights; and (4) whether a mandamus
will issue when a court refuses to enforce its own orders.
ISSUE ONE: CONTEMPT
Charlotte argues that the trial court should have held Matthew in contempt for failing to produce S.A. at the hearing on
her motions.
The trial court ordered Matthew to produce all three children at the hearing on Charlotte s motions. Matthew produced
two of the children and the following dialogue appears in the record:
THE COURT: Okay. I need both of you - - do you have any other witnesses here in the courtroom that you want to
testify?
MS. MANOR: Yes, my three kids. But the other two ain t here, and I want to hold him in contempt to the order of the
court for that.
It appears that the trial judge did not rule on her request for contempt. Regardless, there is nothing in the record to
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show that Charlotte requested a ruling on her request or that she objected to the court s refusal to rule. Tex. R. App. P.
33.1. Thus, Charlotte has not preserved her complaint for appeal. We overrule issue one.
ISSUE TWO: MANAGING CONSERVATOR
Charlotte argues that because Matthew has voluntarily relinquished the primary care and possession of S.A. to Robin
Manor[1] for six months, Charlotte should be appointed managing conservator.
The Family Code states:
The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms
and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be
in the best interest of the child and:
(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily
relinquished the primary care and possession of the child to another person for at least six months.
Tex. Fam. Code Ann. 156.101(3) (Vernon Supp. 2004-05) (emphasis added). The party seeking modification has the
burden to establish these elements. In re T.D.C., 91 S.W.3d 865, 871 (Tex. App. Fort Worth 2002, pet. denied). The
best interest of the child must be the court s primary concern in such proceedings. Tex. Fam. Code Ann. 153.002
(Vernon 2002); In re T.D.C., 91 S.W.3d at 873.
We review a trial court s decision on a motion to modify conservatorship under an abuse of discretion standard.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The trial court s order will not be disturbed on appeal unless
the complaining party can show a clear abuse of discretion. Id. The trial court is in the best position to observe the
demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned
by merely reading the record. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App. Dallas 1981, no writ). The test
for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted
without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985),
cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). An abuse of discretion does not occur as long as
some evidence of a substantive and probative character exists to support the trial court's decision. Jenkins v. Jenkins, 16
S.W.3d 473, 477 (Tex. App. El Paso 2000, no pet.).
A hearing was held on Charlotte s motion to modify conservatorship, and the trial court entered a written order after
the hearing. The trial court filed findings of fact that state: (1) the two children who testified denied any bad conduct by
Matthew;[2] and (2) the testimony at the divorce proceeding showed Terry James[3] had a prior felony conviction and
was accused of improper conduct with the minor children when they were in the custody of Ms. Manor.[4] The trial
court s conclusions of law state: (1) Circumstances of the children have not changed; and (2) it would not be in the
children s best interest for them to be in the primary care of their mother.
We find that the trial court did not abuse its discretion in denying Charlotte s motion for modification of
conservatorship. See Tex. Fam. Code Ann. 156.101(3), 153.002; In re T.D.C., 91 S.W.3d at 871, 873. We overrule
issue two.
ISSUE THREE: ENFORCEMENT
Charlotte states that she was refused visitation on August 17, 2003. She argues this interfered with her possessory
rights and the trial court should have enforced the divorce decree against Matthew and held him in contempt.
At the hearing on this motion, Charlotte did not adduce any evidence relating to any incidents on August 17, 2003. We
overrule issue three.
ISSUE FOUR: MANDAMUS
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Charlotte asks whether a mandamus will issue when a court refuses to enforce its own orders. This is a request for an
advisory opinion. Courts have no jurisdiction to issue advisory opinions. Tex. Const. art. II, 1; Speer v. Presbyterian
Children's Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993). We overrule issue four.
CONCLUSION
Having overruled all of Charlotte s issues, we affirm the trial court s denial of both of her motions.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed July 20, 2005
[CV06]
[1] We believe Robin Manor is S.A. s grandmother.
[2] S.A. did not testify at the hearing.
[3] We believe Charlotte had a relationship with Terry James. The present nature of this relationship is unclear
although Terry testified at the hearing on Charlotte s motions.
[4] We believe the court is referring to Charlotte Augustine Manor in this finding.
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