Petition — Bowling v. Bowling

80-2012 Jr”

IN THE ALEXANDER L. STRVAS,

OLERK

SUPREME COURT OF THF UNITED STATES

TREVA ANN BOWLING,

Petitioner,

vs.

WILLIAM LFE BOWLING,

Respondent.

PETITION FOR WRIT OF CERTIORARI

“TO THE SUPREME COURT OF TEXAS

ROYAL CASWELL

217 West Third Street

Odessa, Texas 79761

(915) °337-5461

ATTORNEY FOR

PETITIONER

QUESTIONS PRESENTED FOR REVIEW

1. Does the Texas Court's

Opinion, which establishes a conclusive

presumption of future injury to the

welfare of a child, solely because the

unmarried mother dates a single,

unmarried adult, a presumption which is

then used to terminate the custodial

rights of Petitioner, violate her

constitutional right to due process and

equal protection under the Fourteenth

Amendment as stated by this Court in

Stanley v. Illinois, 405 U.S. 645

(1972)?

2. Does the construction and

application of the provisions of the

Texas Family Code by the Texas Courts

amount to an inflexible presumption which

deprives Petitioner of her child, solely

because of her dating an unmarried adult,

and therefore infringe upon Petitioner's

constitutional rights to due process and

equal protection of the laws under the

Fourteenth Amendment?

3. Does the construction and

application of the provisions of the

Texas Family code by the Texas Courts

violate Petitioner's right to freedom of

religion and right to privacy as

guaranteed by the First Amendment of the

United States Constitution?

-i-

SUBJECT INDEX

Questions presented for review

Opinion Below---------------

Jurisdiction----------------

Constitutional and Statutory

Provisions----------

Reasons for Granting Writ---

Statement of the Case-------

Argument --------------------

A. Due Process

Violation--------

B. The Equal Protec-

tion Violation---

C. Equal Rights

Argument ---------

D. Freedom of Reli-

gion Violation---

E. Right of Privacy

Violation--------

25

29

TABLE OF AUTHORITIES

Cases:

Becerra v. Garibando, 526 S.W.

ex.Civ.App.--Corpus

Christi, 1975)---------------

Bell v. Burson, 402 U.S. 535

(1971) ---------+-------------

Bukovich v. Bukovich, 399 S.W.

Tex. 22ers

Burt v. Lochausen, 151 Tex. 289,

S.W. (1952) cat alae

Cleveland Board of Education v.

LaFleur, 414 U.S. 632

Colbert v. Stokes, 581 S.W. 2d

Tex.Civ.App. --Austin,

1979) -----------------------

Davis v. Duke, 537 S.W. 2d

ex.Civ.App. --Austin,

DeLlano v. Moran, 333 S.W. 359

(Tex. , 1960) ----------------

Page

5a,/a

13

lla,l2a

5a

11

12a

21

lla

l6a

2la

Cases:

Frantzen v. Frantzen, 349 S.W.

Tex.Civ.App. --San

Antonio, 1961)-------------

Goodrow v. Perrin, 403 At, 2d

> >

Griswold v. Connecticut, 381

° ° 7 . t. 78, 14

L.Ed. 2d 510 eaweoveeooaeoeoeocoo

Heiskell v. Heiskell, 412 S.W.

. Tex.Civ.App.

--Amarillo, 1967)----------

In re Burrell, 58 Ohio St. 2d

37, 330 N.E. 2d 38 (1979)--

In re King's Estate, 150 Tex.

Ln -W. 2d 660 (1957)

In re Marriage of Walter, 27

Or. App. /21---------------

Jarrett v. Jarrett, U.S.

___» 06 L.Ed. 2d 155-------

Knowles v. Knowles, 437 S.W.

Tex., 1969) --------

Major v. Hampton, 413 F.2d

66, /0---------------------

-iv-

Page

24

27

26,27

28

15,16

7a

16

8 9,13

lla,l2a

27

Cases: Page

Mindel v. U.S. Civil

Service Commission, 312

F. 2d Supp. 485 PaCS Sea" 27

Mitchell v. Burleson, 466 S.W.

2d 646 (Tex.Civ.App. --

Beaumont, 1971) ------------ 20a

Mumma v. uirre, 364 S.W.

2d 220 he 1963) -------- 16a

Noyles v. Jack, 443 S.W. 2d

5 (Tex.Civ.App. --

ay

Beaumont, 1969)------------ 24

People v. Belous, 458 P. 2d

194, 199 -n-n nnn nnn nnn nnnn-- 27

illoin v. Walcott, 434 U.S.

246, 255 (1978)------------ 11

were ener ee een nen-- 15,16

Salvaggio v. Barnett, 248

S.W. 2d 244 (Tex.Civ.App.

--Galveston, 1952)-------- 24

Schmidt v. U.S., 177 F. 2d

450, 452 (Second Circuit

1947) enn nnn n enn n nen -- 26

Stanley v. Illinois, 405

are. ae TE aeons i,4,11,13,14

16,17,19

-Vve-

Cases:

State v. Saunders, 381 At. 2d

333 . 339-40 ewan e er eee we ee eee

Taft v. Johnson, 553 S.W. 2d

ex.Civ.App. --El Paso,

Wallace v. Fitch, 533 S.W. 2d

ex.C Vv. p . --Houston,

lst Dist., 1976) --<---------

Watts v. Watts, 563 S.W. 2d

314 (Tex.Civ.App. --Dallas,

1978) ----- een nnn n nnn -------

Wellman v. Wellman, 164 Cal.

Rptr. 148------------------

Constitution of the United

States:

First Amendment------------

Fourteenth Amendment -------

Texas Constitution Article l,

Statutes:

28 U.S.C., §1257(3) sa aoe eas]

Tex.R.Civ.P., Rule 302 ee

Tex.R.Civ.P., Rule 327-----

-vi-

Page

27

4a

11

l4a

24,1lla

17,27

19a

Statutes: Page

Tex. Family Code §11.13 3a,4a,23a

Tex. Family Code §14.01

(b) (2) --------------------- 15a

Tex.Family Code §14.08(c) 3,20,2a,24a

Miscellaneous:

U.S. Bureau of Census,

Current Population Report

No. 23, “Marital Status

and Living Arrangements",

March, 197] Jeeccceeeeeeeeee= 3,19

-vii-

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

TREVA ANN BOWLING,

Petitioner,

vs.

WILLIAM LEE BOWLING,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

The Petitioner, TREVA ANN BOWLING,

respectfully prays that a Writ of Certio-

rari issue to review the final decision of

the Supreme Court of Texas entered in this

proceeding on October 22, 1980, refusing

to reverse the decision of the El Paso

Court of Civil Appeals of April 30, 1980.

The opinion of the Court of Civil Appeals

in El Paso deprived Petitioner of the

custody of her minor child solely because

she was dating an unmarried adult male.

All of the evidence demonstrated that

he

Treva Ann Bowling was a kind and affec-

tionate mother and had not neglected her

minor child in any way as a result of the

relationship, and all of the evidence

demonstrated that the minor child was a

healthy, happy, and loving child.

OPINION BELOW

The original Opinion of the Court

of Civil Appeals in El Paso is set forth

in Appendix A to this Petition. The

Opinion of the Supreme Court of the State

of Texas refusing to grant a Writ of Error

to Petitioner, because it found no revers-

ible error in the decision, with a per

curiam notation, is attached to this

Petition as Appendix B.

JURISDICTION

The Opinion and Judgment of the

Supreme Court of Texas was entered

October 22, 1980. A timely Petition for

Rehearing was filed and denied by the Su-

preme Court on December 3, 1980. Juris-

diction of this Court is invoked under 28

U.S.C. §1257(3). The State of Texas af-

fords no further procedure to remedy the

violation of Petitioner's constitutional-

ly guaranteed rights. The notification

from the Clerk of the Texas Supreme Court

dated December 3, 1980, denying Peti-

a

tioner's Motion for Rehearing is attached

to this Petition as Appendix C.

CONSTITUTIONAL AND STATUTORY PROVISION

The constitutional provisions in-

volved in this case are the Equal Protec-

tion clause and the Due Process clause of

the Fourteenth Amendment. Also involved

is the First Amendment right to Freedom

of Religion and the violation of Peti-

tioner's Right of Privacy, also guaran-

teed by the First Amendment of the United

States Constitution. Also involved is the

constitutional propriety of the statutory

provisions of the Texas Family Code,

§14.08(c). The text of this statutory

provision in its pertinent part is set

forth in Appendix D.

REASONS FOR GRANTING THE WRIT

The Courts of Texas, both the

intermediate level and the Supreme Court,

have created the use of a conclusive,

irrebutable presumption in a child

custody matter to terminate the custodial

rights of Petitioner to her minor son.

The Opinion of the intermediate court in

this case, which the Texas Supreme Court

refused to overturn by declining a Writ of

Error, is in direct contravention to the

principles enunciated by this Court in

xs

Stanley v. Illinois, 405 U.S. 645 (1972).

In Stanley, this Court held that the

employment of an irrebutable presumption

without hearing upon the fundamental

interest of parents and their children in

custody matters is an unconstitutional

violation of the parents' right to Due

Process and Equal Protection under the

Fourteenth Amendment. Similarly, by

resorting to the use of an irrebutable

presumption in denying Petitioner the

right of custody of her child, the Texas

Courts have changed the focus in a child

custody proceeding from the traditional

concern of welfare and best interest of

the child to a hearing which necessarily

must focus upon the conduct of the

custodial parent, without any regard to

its effect upon the child. As with

Stanley, the Texas Court's Opinion in the

instant case and their use of such a

presumption, irrationally and unjustly

affects not only the constitutional rights

of Treva Anr Bowling, but also the

constitutional rights of millions of

unmarried parents similarly situated in

the United States, together with the same

rights of their children.

nike.

The application of such a presump-

tion created by the Texas Courts in child

custody proceedings not only in Texas but

in the Courts of our sister states dis-

criminates as to status all of those

single custodial parents who, after their

marriage vows have been severed, choose

to date persons of the opposite sex. By

holding that Petitioner's "unconventional

lifestyle" in this case creates an envir-

onment which might endanger the future

welfare of the child without even evi-

dence of possible detrimental effects to

the child constitutes an established con-

clusive presumption which cannot be over-

turned. This presumption persists des-

pite evidence to the contrary, and must

inevitably result in the conclusion that

because a single unmarried parent dates

another person of the opposite sex, harm

will occur to the child some time in the

future.

According to the United States

Census Bureau in 1978 there were twelve

million children under the age of 18 in

single parent homes. The Census Bureau

further predicts that nearly ail children

born in the 1970s will spend a meaningful

part of their lives before 18 in a single

iin

parent home. If the instant decision is

allowed to stand and harm presumed

because of a single parent's decision to

date another single person, the majority

of the population of America could be

affected. The consequences of letting

the Texas Court's decision stand in the

instant case is enormous and such a

precedent cannot be allowed to stand to

the detriment of constitutional rights

because of what can only be motives of

expediency.

STATEMENT OF THE CASE

This case involves a suit for mod-

ification of managing conservator or,

more simply, a change of custody, which

was brought by the natural father of the

minor child, William Lee Bowling, against

Treva Ann Bowling. The case was tried by

a jury and they returned a 10-2 verdict

in favor of the father, William Lee

Bowling. The case was appealed to the

Court of Civil Appeals in El Paso and the

judgment of the Trial Court was affirmed,

from which Petitioner p»cfected her

appeal.

Upon appeal, the Eighth District

Court of Civil Appeals at El Paso held

that there was some evidence of a mater-

elie

ial change of circumstances which would

support the jury's finding as to injury

to the welfare of the child by citing

Petitioner's unconventional lifestyle as

sufficient reason for the change of

custody. The Petitioner thereinafter

filed an Application for Writ of Error

with the Texas Supreme Court which

was refused because the Supreme Court

found no reversible error. The Decision

and Opinion of the Supreme Court was

rendered October 22, 1980. Thereafter,

Petitioner filed a timely Motion for

Rehearing which was refused by the Texas

Supreme Court on December 3, 1980. In

Petitioner's Application for Writ of

Error and her Motion for Rehearing,

Petitioner contended that her First

Amendment rights and Fourteenth Amendment

rights had been violated by the decision

and Opinion of the Eighth Judicial

District Court of Civil Appeals at El

Paso.

ARGUMENT

The Decision and Opinion of the

Court of Civil Appeals at El Paso, Eighth

Judicial District, establishes an irrebut-

able presumption by terminating the cus-

todial rights of Treva Ann Bowling and,

o>

thus, violated her constitutional rights

to Due Process and Equal Protection of

the laws under the Fourteenth Amendment,

and further violated her right of Freedom

of Religion and Right to Privacy as

guaranteed b.’ the First Amendment of the

United States Constitution.

A. DUE PROCESS VIOLATION.

Petitioner is mindful of the fact

that on September 29, 1980, this Court

refused Certiorari in the case of Jarrett

v Jarrett, U.S. » 66 L.Ed. 2d

155. The significance of the Jarrett case

lies in the fact that three Justices of

this Honorable Court vigorously dissented

in the refusal to grant Certiorari. In

Justice Brennan's Dissenting Opinion, it

was pointed out that the Court should

address the constitutional question which

was clearly presented because the answer

to the question has important implica-

tions to many households. In Jarrett the

divorced mother and her three children

were actually living with and cohabiting

with her boyfriend, a single unmarried

man. The facts of the Jarrett case were

much more extreme than the facts in the

instant case. In the instant case, Treva

Ann Bowling was not living with the man

aSa

dict from attack under the Due Process

clause, particularly where the results of

the hearing were based upon a conclusive

presumption that the jury's finding must

stand, a fact which Petitioner could not

overcome by showing that her child was

normal, healthy, and happy. See Bell v.

Burson, 402 U.S. 535 (1971); and Jarrett

v. Jarrett, 400 N.E. 2d at 427.

What may, perhaps, might, or could

happen in the future without a connection

between Petitioner's non-marital status

and the effect upon the relationship with

her child is nothing more than a specula-

tive conclusive presumption.

The Court of Civil Appeals opinion

in this case creates an irrebutable

presumption which will be impossible for

any normal unmarried woman to overcome.

This is analogous to the presumption

involved in Stanley v. Illinois, supra,

created by a statute which assumed

unmarried fathers are unfit to raise

their children. The flaw in this

reasoning was explained by the Supreme

Court in the following manner:

"Procedure by presumption is always

cheaper and easier than individual-

ized determination, but where, as

here, procedure forecloses the

-9-

tioner and that man while in the presence

of the child. The Court of Civil Appeals

in passing upon sufficiency of the

evidence in this case held that it was

because of Petitioner's unconventional

lifestyle alone that the jury verdict

must be upheld.

The unconventional lifestyle as

set forth in the statement of facts in

the Court of Civil Appeals opinion con-

sisted of the fact that Petitioner, on

week-ends while the child was visiting

his father, took trips out of town to

various places such as Ruidoso, New

Mexico, Del Rio, Texas, and Puerta Vil-

larta, Mexico, with the man with whom

Petitioner was dating. Respondent ad-

mitted that his child's attitude had

actually improved after Petitioner began

seeing the person that she was dating.

Petitioner contends that by allowing the

Court of Civil Appeals opinion and judg-

ment to stand, a conclusive presumption

of harm to the welfare of the child was

established by the showing of Petitioner's

conduct which occurred outside of the

presence of the child, even though there

was not one scintilla of actual evidence

»I6-

of harm or danger to the welfare of the

child presented.

It is well established that a

parent's relationship with his or her

children is one of the liberties to which

due process must be accorded. OQuilloin v.

Walcott, 434 U.S. 246, 255 (1978). It is

equally well established that irrebutable

presumptions have long been disfavored

under the due process clause of the Four-

teenth Amendment. Vlandis v. Kline, 412

U.S. 441 (1973). Accordingly, in those

situations where a conclusive presumption

has been employed to impair or affect

child-rearing and parental rights, the

Supreme Court of the United States has

never hesitated to strike down the parti-

cular presumption involved. Cleveland

Board of Education v. LaFleur, 414 U.S.

632 (1974) and Stanley v. Illinois, 405

U.S. 645 (1972).

In the instant case the opinion of

the Court of Civil Appeals had made a

radical departure from the constitutional

safe-guards which were so vigorously pro-

tected in Stanley and LaFleur. The deci-

sion in this case, if left unturned, cre-

ates irrebutable and conclusive presump-

tion of future harm to Petitioner's child

wite

caused simply by her normal conduct as an

unmarried person.

The fact cannot be ignored that

the uncontroverted and undisputed proof

clearly demonstrated that Petitioner was

a kind and affectionate mother who took

excellent care of her child. It was only

her ex-husband's dissatisfaction of her

dating another man that brought about the

requested change in custody in this case.

Not one shred of evidence was produced to

show that the child involved was unhappy,

unstable, neglected, upset or confused,

nor was it shown that the child would

have been subject to scorn or scandal in

the community.

It is apparent, therefore, in

order to reach the decision that it did,

the jury and the Court of Civil Appeals

in El Paso was required to rely upon

baseless prediction, guess, speculation,

conjecture, and presumptions of what

might or could happen in the future

without any evidence to show that injury

to the welfare of the child was even

likely to occur.

The fact that a hearing was held

before a jury does not save the Court of

Civil Appeals' holding nor the jury ver-

ottin

dict from attack under the Due Process

clause, particularly where the results of

the hearing were based upon a conclusive

presumption that the jury's finding must

stand, a fact which Petitioner could not

overcome by showing that her child was

normal, healthy, and happy. See Bell v.

Burson, 402 U.S. 535 (1971); and Jarrett

v. Jarrett, 400 N.E. 2d at 427.

What may, perhaps, might, or could

happen in the future without a connection

between Petitioner's non-marital status

and the effect upon the relationship with

her child is nothing more than a specula-

tive conclusive presumption.

The Court of Civil Appeals opinion

in this case creates an irrebutable

presumption which will be impossible for

any normal unmarried woman to overcome.

This is analogous to the presumption

involved in Stanley v. Illinois, supra,

created by a statute which assumed

unmarried fathers are unfit to raise

their children. The flaw in this

reasoning was explained by the Supreme

Court in the following manner:

"Procedure by presumption is always

cheaper and easier than individual-

ized determination, but where, as

here, procedure forecloses the

=i3=

determinative issues of competence

and care when it explicitly disdains

present realities in deference to

past formalities, it needlessly runs

the risk of running roughshod over

the important interests of both

parents and child. It therefore

cannot stand."' Stanley v. Illinois

supra.

There is little difference in the

presumption created by the opinion of the

Court of Civil Appeals and the statute in

Stanley. The Supreme Court further con-

demned the use of a presumption to deter-

mine best interest and welfare in Stanley

by saying:

", . . where the very nature of due

process negates any concept of

inflexible procedures universally

applicable to every imaginable

situation. . . what procedures Due

Process may require under any given

set of circumstances must begin with

the determination of the precise

mature of the governmental function

involved, as well as the private

interest that has been affected."

405 U.S. 654 at 650.

"Nor has the law refused to recog-

nize those family relationships un-

legitimized by a marriage ceremony.

- « » Familial bonds in such cases

were often as warm, enduring

and important as those arising within

a more formally organized family

unit. 405 U.S. at 651, 652.

-14- °

"It may be as the state insists,

that most unmarried fathers

are unsuitable and neglectful

parents. It may also be that

Stanley is such a parent, and that

his children should be placed in

other hands. But all unmarried

fathers are not in this category.

405 U.S at 654. . .(The statute)

insists on presuming rather than

proving Stanley's unfitness, solely

because it is more convenient to

presume than to prove. Under the

Due Process clause, that advantage

is insufficient to justify refusing

a father a hearing when the issue at

stake is the dismemberment of his

family. 405 U.S. at 658.

It should be kept in mind that in

the instant case the Petitioner was not

cohabiting, but merely dating a man with

whom she was not married. Courts of

other jurisdictions have uniformly held

that cohabitation between an unmarried

male and female without the benefit of

marriage is not per se evil or one of

immorality, S. v. J.,267 N.W.S.2d 405

(1975).

The same conclusion was reached by

the Ohio Supreme Court in In re: Burrell,

58 Ohio St. 2d 37, 338 N.E. 2d 38 (1979),

which involved a situation where the

mother was living with a man not her hus-

band. In refusing to uphold a change of

-15-

custody based upon the mother's living

arrangement, the Court held:

"The conduct of the parent is

relevant solely insofar as that

parent's conduct forms part of the

environment of the child. As part

of the child's environment, such

conduct is only significant if it

can be demonstrated to have an

adverse impact upon the child. Here

such is not the case." In re:

Burrell, 58 Ohio St. 2d 37, 388 N.E.

%q 38, (Ohio Sup. Ct., 1979). .

In re: Marriage of Walter, 27 Or.

App. 721, concerned a similar question.

The Oregon court refused to resort to the

use of a presumption, explaining:

"While cohabitation may in many

circumstances be injurious to the

welfare of the child, we cannot say

that in every circumstance

conceivable or otherwise that

cohabitation in any form would have

such an effect. Examining the

record, there is no evidence which

indicates that the condition placed

upon the award of custody is

necessary to protect the children.

The Court should make its decision

in light of the actual rather than a

speculative situation."

S. v. J., Burrell, and Walter are

all consistent with and follow the

Supreme Court's decision in Stanley v.

Illinois, The Texas Courts, however, in

explicitly rejecting the application of

atte

Stanley, have ignored and seriously

threatened the constitutional safeguards

which this Court, and the courts of our

sister states, have so carefully strived

to protect.

The California Court of Civil

Appeals in the case of Wellman v.

Wellman, 164 Cal.Rptr. 148, also

recognized the basic constitutional

rights of a parent raising a child. The

Court at page 151 noted:

"The Courts have frequently warned

that a judge should not base his

decision upon his disapproval of the

morals or other personal

characteristics of a parent that do

not harm the child. This admonition

seems particularly appropriate where

what is involved is freedom of “

association and sexual conduct

between mature consenting adults.

As our state Supreme Court has

explicitly recognized, non-marital

relationships are pervasive in

current society, and mores in regard

to cohabitation have changed

radically, so that courts cannot

impose a standard based on alleged

moral considerations that have

apparently been so widely abandoned

by so sy Moreover, such conduct

has been held to be within the

penumbra of constitutional

protection afforded the rights of

privacy as well as the rights of a

parent as previously discussed so

that intrusion by the state in this

ok Fa

sensitive area is not a matter to be

undertaken lightly."

The Court further, after noting that

sexual conduct may be relevant in denying

a custody dispute only where there is com-

pelling evidence that such conduct has

significant bearing on the child, held

that an inquiry into the sexual conduct

of an unmarried parent was so intrusive

upon the privacy and associational

interests of the mother that the Trial

Court's finding could not be sustained.

B. THE EQUAL PROTECTION VIOLATION.

The overall impact of the instant

decision is potentially overwhelming

since the Court of Civil Appeals in El

Paso has effectively established a unique

classification of unmarried parents that

date and associate with members of the

opposite sex, and has arbitrarily

discriminated against Treva Bowling and

all those parents similarly situated by

denying them the equal protection of the

laws. In its personalized, subjective

judgment seeking to uphold and strengthen

the institution of formal marriage, but

my

without any objective evidence and study,

the Court has plunged in "running

roughshod" (Stanley v. Illinois, 405 U.S.

645 at 656) over the important rights of

literally millions of similarly situated

parents and their children. Although the

Court of Civil Appeals in El Paso feels

that the Petitioner had an unconventional

lifestyle by dating and traveling with

another unmarried person wholly outside of

the presence of the child, the U.S. Bureau

of Census some 3 1/2 years ago showed that

there were 1.1 million unmarried parents

living with others in the presence of

their children. U.S. Bureau of Census,

Current Population Report, p. 20, No. 23,

"Marital Status and Living Arrangements"

March, 1977. In the face of these figures

the fact that Petitioner was dating

another and traveling with him on week--

ends when the child was with his father

certainly seems to indicate that the

opinion of the Court of Civil Appeals in

El Paso might be slightly more unconven-

tional than Petitioner's lifestyle which

the Court condemned. The purpose of

Petitioner citing these figures is simply

to demonstrate a nationally existing

social phenomenon in which the equal

«19-8

protection rights of more and more people

are being threatened each day. According

to the Court of Civil Appeals in El Paso,

the ex-husbands of single parents now neec

only show that the present custodian is

dating a member of the opposite sex and

traveling on weekends with him outside of

the presence of the child. With such a

rule, the likelihood of arbitrariness by

judge and/or jury is terrifically immense.

Moreover, such a classification totally

disregards the principles as formulated by

§14.08(c) of the Texas Family Code which

provides as follows:

“after a hearing, the Court may

modify an order or portion of a

decree that:

(1) designates a managing conserva-

tor if the circumstances of the

child or parent have so materially

and substantially changed since the

entry of the order or decree to be

modified that the retention of the

present managing conservator would

be injurious to the welfare of the

child and that the appointment of

the new managing conservator would

be a positive improvement for the

child;"' (Emphasis added)

Without justification in law or

fact, the Court of Civil Appeals in El

Paso has singled out a sub-class of par-

-20-

ents whose status, per se, is a

controlling justification for termination

of their parental rights. In other

circumstances, the existence of such a

relationship or conduct, would not and

could not be controlling. It is this

differential treatment which fails to

meet the rational relationship test of

the Equal Protection clause of the

Fourteenth Amendment. Dandridge v.

Williams, 397 U.S. 471 (1970). There is

simply no nexus between the uniquely

disabling class characteristics

established by the Court of Civil

Appeals’ opinion, and all other possible

types of custodial conduct. Furthermore,

no nexus exists between this class of

unmarried parents and the presumed

harmful efect on their children.

The irrebutable presumption which

Petitioner complained about under the

Equal Protection portion of this argument

is not and has not ever been the law of

the State of Texas. Under the Texas

Family Code the burden is always upon the

movant seeking the change to show that

the retention of status quo would be

injurious to the welfare of the child.

Indeed, if any presumption exists in

Texas, it exists in favor of the original

Pile

custodian. The Petitioner herein is

asking no more or no less than the law be

applied to her fairly as it should be to

any unmarried female parent, and should

afford her the equal protection of any

other type of citizen.

C. EQUAL RIGHTS ARGUMENT:

As pointed out in the Texas Courts

the Equal Rights Amendment was passed by

the Texas Legislature and voters in 1973.

Petitioner believes that her conduct of

dating and traveling with another

unmarried person of the opposite sex

would be viewed much differently by the

Court of Civil Appeals in El Paso had she

been a man and not a woman. In passing

upon the sufficiency of the evidence,

assume for the purposes of argument that

the situation were in exact reverse; that

instead of being an unmarried female

parent, Petitioner herein was an

unmarried male parent defending a change

of custody sought by his ex-wife because

he had traveled to Del Rio, Ruidoso, and

Puerta Villarta with an attractive un-

married female on week-ends while Peti-

tioner's child was with her on visitation

periods. In such a case it is not hard

for Petitioner to imagine the attitude of

-22-

the three Justices of the Court of Civil

Appeals in Paso. Would they then con-

sider the lifestyle of an unmarried male

"unconventional" for undertaking such

travels with an attractive female guest?

Petitioner respectfully submits that

the outcome in such a case would be

exactly the opposite from the case at

bar, and that because of Petitioner's

status as a woman, her status itself was

outcome determinative.

D. FREEDOM OF RELIGION VIOLATION:

Other than Petitioner's "unconven-

tional lifestyle", the only evidence cited

by the Court of Civil Appeals in El Paso

as to why her retention of custody of her

child would be injurious to his welfare

was the fact that Petitioner no longer

took her child to church on Sunday. Pe-

titioner believes that merely by citing

this as evidence to sustain a jury ver-

dict violates her and her child's right

of freedom of religion as guaranteed to

them by the First Amendment of the Con-

stitution of the United States. (The

Court of Civil Appeals simply chose to

ignore the fact disclosed in evidence

that Petitioner encouraged her child as

to his religious beliefs and that actual-

=23~

ly the child was attending church twice

as much at the time of the trial than he

was at the time she and Respondent were

married.)

Constitutionally speaking, the

evidence as stated by the Court of Civil

Appeals concerning the child's church

attendance cannot be considered relevant

as a change of circumstances as a matter

of law. Watt v. Watts, 563 S.W. 2d 314

(Tex.Civ. App. --Dallas, 1978;)

Salvaggio v. Barnett, 248 S.W. 2d 244

(Tex.Civ.App. --Galveston 1952); Noyles

v. Jack, 443 S.W. 2d 89 (Tex.Civ.App.

--Beaumont, 1969; and Frantzen v.

Frantzen, 349 S.W. 2d 765 (Tex.Civ.App.

--San Antonio, 1961).

The quotation by the Court in

Frantzen, supra, is applicable in this

case:

"moreover, one's religious beliefs,

teachings and practices are not

grounds for depriving a parent of

his or her children, so long as such

teachings and practices are neither

immoral nor illegal. Appellant has

cited no authorities to the

contrary, and we have found none."

In Salvaggio v. Barnett, supra,

the Court recognized the First Amendment

issue in construing the effect of the

-24-

Texas Bill of Rights as to child custody

cases and said as follows:

"in choosing between parents who are

contending for the custody of the

child, a magistrate has only such

powers as the law has conferred upon

him to determine whose custody would

best promote the interest and wel-

fare of the child. Under the Ameri-

can principle of separation of Church

and State, the secular power is so

shackled and restrained by our funda-

mental law that it is beyond the

power of a court, in awarding the

custody of the child, to prefer, as

tending to promote the interest of

the child or surround it with a more

normal atmosphere, the religious

views or teachings of either

parent."

Certainly if it is beyond the power

of a judge to consider the religious pre-

ference of either parent in a child

custody case, it is beyond the power of a

jury to take such evidence into account,

and even more importantly, it is beyond

the jurisdiction of the Chief Justice of

the Court of Civil Appeals to consider the

evidence of the church attendance of the

young child as a material and substantial

change of circumstances involving the wel-

fare of the child.

E. RIGHT OF PRIVACY VIOLATION:

The Supreme Court of the United

=25-

States recently in Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678,

recognized the citizens have a First

Amendment right to privacy which is not

political in the customary sense, but

pertains to the social, legal, and

economic associations. Certainly after

Petitioner's divorce from Mr. Bowling, she

had the right to choose her own lifestyle

and even though Mr. Bowling may have

disapproved of the lifestyle Petitioner

chose, her right to so choose should not

be grounds for a change of custody unless

the lifestyle chosen had a detrimental

effect upon the welfare of the child. As

recognized by Judge Learned Hand in

Schmidt v. U.S., 177 F.2d 450, 452 (Second

Circuit, 1947), an unmarried man does not

forfeit his claim to good moral character

by not choosing to live completely

celebate, so then certainly the First

Amendment of the United States

Constitution and Article 1, §3a of the

Texas Constitution which declares

"equality under the law shall not be

denied or abridged because of sex, race,

color or national origin" protects the

Petitioner in her right to choose her

=-26-

lifestyle and remain unmarried.

While the Supreme Court did not

definitely state that the zone of privacy

recognized in Griswold v. Connecticut,

supra, included consentual sexual

behavior among adults, several lower

courts have answered that question in

the affirmative. See State v. Saunders,

381 At. 2d 333, 339-40; Mindel v. U.S.

Civil Service Commission, 312 F. 2d Supp.

485; Major v. Hampton, 413 F. 2d 66, 70;

Goodrow v. Perrin, 403 At. 2d 864, 865,

866. As the New Jersey court reasoned in

Saunders, supra, it would be rather anon-

alous if a person's decision to bear or

beget children could be constitutionally

protected while the fundamental decision

as to whether or not to engage in the

conduct which is a necessary prerequisite

to child bearing would not be constitu-

tionally prohibited.

The California Supreme Court

refers to a constitutional right of

privacy in matters related to marriage,

family and sex. See People v. Belous,

458 P.2d 194, 199. Also see Wellmar v.

Wellman, supra.

Petitioner cannot over-emphasize the

fact that her ex-husband had absolutely

-27-

no complaints of her as a mother, but

objected to her spending time with her

boyfriend because they were not married.

(S.F. p. 99, 100, 101).

The Texas Courts have long

recognized such a right of privacy in

family matters In Heiskell v. Heiskell,

412 S.W. 2d 774, 776 (Tex.Civ.App.

--Amarillo, 1967; n.w.h.) Justice

Northcutt stated:

"Moreover, the actions and conduct of

one of the parties to the divorce

which gives offense to the other, or

even to the public at large, are not

a matter that calls for or permits a

change of custody unless such

actions and conduct are shown to

affect the welfare and best interest

of the child.” (Emphasis added.)

Since there is not a scintilla of

evidence to show that Petitioner's son

was anything other than a normal,

healthy, above-average child with no

physical or mental problems, Petitioner

strongly urges that her right of privacy

was infringed upon by the opinion of the

Court of Civil Appeals in this case which

stated that her unconventional lifestyle

was sufficient to support the answers of

the jury verdict.

-28-

F. CONCLUSION:

For the reasons set out above, Peti-

tioner, Treva Ann Bowling, respectfully

submits that her constitutionally guaran-

teed rights as guaranteed to her by the

First and Fourteenth Amendments have been

violated, and further respectfully re-

quests that this her Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

ROYAL CASWELL

217 West Third Street

Odessa, Texas 79761

(915) 337-5461

By;

RO

ATTORNEYS FOR PETITIONER

-29-

CERTIFICATE OF SERVICE

I hereby certify that a true and

exact copy of the foregoing Petition for

Writ of Certiorari has been mailed to:

Mr. Bill McCoy

Attorney at Law

308 North Jackson

Odessa, Texas 79761

attorney of record fpr Respondent, this

cnet day of , 1981.

RO CASWELL

=%0-

APPENDIX A

IN THE COURT OF CIVIL APPEALS

FOR THE EIGHTH SUPREME JUDICIAL DISTRICT

AT EL PASO, TEXAS

April 30, 1980

T.A.B.,

Appellant,

Vv.

W.L.B.,

Appellee.

Appeal from the District Court

of Ector County, Texas.

Chief Justice Stephen F. Preslar delivered

the opinion of the Court:

T.A.B. appeals from an _ order

removing her as managing conservator of

her six-year-old son and appointing her

former husband, W.L.B., as managing con-

servator. Trial was to a jury which

returned a verdict on two special issues

la

finding (1) that the circumstances of the

child or T.A.B. have so materially and

substantially changed since the divorce

judgment that the retention of T.A.B. as

custodian of the child would be injurious

to his welfare, and (2) that’ the

appointment of W.L.B. as custodian of the

child would be a positive improvement for

the’ child. Questions as to_ the

sufficiency of the evidence to support

those jury findings and the failure of the

Court to grant a mistrial or new trial

because of the improper conduct between a

jury and a witness are presented. We

affirn.

The two jury issues track Section

14.08(c)(1), Tex. Family Code Ann. (Supp.

1980), which provides that after a hearing

the court may modify an order or a portion

of the decree that:

2a

(1) designates a managing

conservator if the circumstances

of the child or parent have so

materially and substantially

changed since the entry of the

order or decree to be modified

that the retention of the present

managing conservator would be

injurious to the welfare of the

child and that the appointment of

the new conservator would be a

positive improvement for the

child; .. .

Appellant assigns error in that the Court

failed to grant her motion for instructed

verdict because there is no evidence to

support either of the jury findings.

Error is also assigned to the Court's

overruling Appellant's amended motion for

a new trial because of the factual insuf-

ficiency of the evidence to support the

issues.

Section 11.13, Tex. Family Code

Ann., provides for a jury trial in all

suits affecting the parent-child relation-

3a

ship except adoptions. Prior to its

amendment effective September 1, 1975,

sub-paragraph b of Section 11.13, by

rather conflicting language, provided that

the judgment of the court must conform to

the jury's determination. The Code provi-

sion was an amendment of Article 4639a in

effect since 1961, and, in 1974, the

Corpus Christi Court of Civil Appeals in

In re Y, 516 S.W. 2d 199 (writ ref'd

n.r.e.), reviewed prior decisions and

expressly held that the jury verdict was

binding on the trial court. See also Taft

v. Johnson, 553 S.W. 2d 408 (Tex.Civ.App.

--El Paso 1977, writ ref'd. n.r.e.). Any

doubt as to the finality of the jury ver-

dict has been removed by the 1975 amend-

ment of Section 11.13 which provides:

(b) The court may not enter

a decree that contravenes the

verdict of the jury, except with

4a

respect to the issues of the

specific terms, conditions of

access to the child, support of

the child, and the rights,

privileges, duties and powers of

conservators, on which issues the

verdict, if any, is advisory only

(emphasis supplied).

The trial Court had the power to

grant Appellant's motion for a directed

verdict. Becerra v. Garibaldo, 526 S.W.

2d 780 (Tex.Civ.App. --Corpus Christi

1975, writ ref'd. n.r.e.). In the face of

the language of the Statute, it cannot

enter a decree that contravenes’ the

verdict of the jury once it is rendered.

As will be seen from the evidence to be

discussed, there was evidence of probative |

force on the issues complained of and the

Court did not err in overruling

Appellant's motion for directed verdict.

Burt v. Lochausen, 151 Tex. 289, 249 S.W.

2d 194 (1952).

5a

Appellant has points of error that

there is no evidence to support the jury's

answers. This poses the question of whe-

ther we should consider such points, for

to uphold them would require rendition of

judgment, as distinguished from remand.

Section (b) of the Statute is in contra-

vention of Rule 302, Tex.R.Civ.P., which

provides "the court may render judgment

non obstante veredicto if a directed ver-

dict would have been proper, and provided

further that the court may, upon like mo-

tion and notice, disregard any Special

Issue Jury Finding that has no support in

the evidence."

The language of the Legis-

lature is clear that as to these matters

we cannot enter a judgment that contra-

venes the verdict of the jury. Therefore,

we decline to consider the "no evidence"

points.

6a

The trial Court could have granted

a motion for a new trial, Becerra v.

Garibaldo, supra, and we turn to a review

of the factual sufficiency of the evi-

dence. In reviewing "factual sufficiency"

points of error, the Court considers all

of the evidence to determine whether the

findings are so against the great weight

and preponderance of the evidence as to be

manifestly unjust. In re King's Estate,

150 Tex. 662, 244 S.W. 2d 660 (1951). The

parties were divorced November 5, 1976,

and this case came to trial in December of

1978. The evidence is that Appellant re-

married within a month of the divorce, and

separated from this husband within two

months. She then moved from Odessa to

McCamey, Texas, and stayed there some two

months, and was unemployed for one of

those months. Prior to moving to McCamey,

7a

Appellant met W.H., and began dating him

in March of 1977, and soon moved back to

Odessa and took a secretarial job from

mid-April until late June of 1977. In

June, she divorced the second husband.

From June of 1977 until September, Appel-

lant was unemployed, lived with her

mother, but much of her time was spent

with W.H. She and her child would get up

each morning and go to his house, often

have breakfast there, and spend the day

using the swimming pool and other things.

She would fix dinner for W.H., and would

remain for the evening until 10:00 or

10:30 p.m., although a number of times it

was much later. This routine occurred

" for some

every day "except for a few days

two-and-a-half months, and, in addition

thereto, Appellant and W.H. would spend

alternate weekends out of town, often in

8a

Del Rio where he had a sailboat. The

child did not accompany them on these

weekend ventures where they stayed in a

motel, but did accompany them other times

when they made other trips, particularly

to W.H.'s cabin in Ruidoso. Trips to

Mexico were also taken. The evidence is

that Appellant and W.H. did not sleep to-

gether when the child was present. Fol-

lowing this summer program, Appellant ob-

tained employment, but she and the child

continued to have dinner and spend their

evenings at the home of W.H. She also

continued her weekend trips, and she had

the use of his car and credit card. This

relationship with W.H. continued up until

the time of trial, except for a brief per-

iod when they "broke up'’ and he dated

others. There was evidence that Appellant

stopped taking the child to church, which

9a

she had done prior to her divorce from

W.L.B., and there is evidence that Appel-

lant uses some profane or vulgar language

in front of the child, but there is no

evidence that this was or was not done be-

fore. In the two-year period since the

prior order, Appellant has lived in four

different places of residence and has had

three different jobs.

Appellant first questions’ the

finding of a material change of circum-

stances on the basis that no evidence was

introduced regarding the circumstances of

the child or Appellant at the time of the

divorce or the prior order; therefore, it

was impossible for the jury to deduce that

a change in circumstances had occurred.

The method of showing this change is not

prescribed by the Family Code. Neither of

the two Supreme Court cases relied on by

10a

Appellant, Bukovich v. Bukovich, 399 S.W.

2d 528 (Tex. 1966), or Knowles v. Knowles,

437 S.W. 2d 816 (Tex. 1969), appear to

mandate a particular mode of proof, and

therefore do not support Appellant's

assertion. Two cases appear to support

Appellant's position. In Davis v. Duke,

537 S.W. 2d 519 (Tex.Civ.Cpp. --Austin

1976, no writ), the Court found that the

appellant had failed to prove the condi-

tions that existed at the time of the

entry of the custody decree, but it also

held that appellant failed to prove the

present conditions, so the case is not

authority for Appellant's position here,

for the judgment could have been upheld on

either finding. In Watts v. Watts, 563

S.W. 2d 314 (Tex.Civ.App. --Dallas 1978,

writ ref'd n.r.e.), the Court stated that

"[t]o show such a change, evidence must be

lla

tendered showing the circumstances at the

time of the prior order and the circun-

stances existing at the time of the hear-

ing on the motion to modify." We have no

quarrel with that statement as being one

method of showing change, but are unable

to accept it as being the only way of

showing change and that "evidence must be

tendered showing the circumstances at the

time of prior order." The two cases,

Bukovich v. Bukovich and Knowles. v.

Knowles, are cited as the authority for

the statement, and they do not support

such a statement as being the law of

Texas. The requirement is that a change

must be shown. Any method of proof which

does that satisfies the Statute.

In Colbert v. Stokes, 581 S.W. 2d

770 (Tex.Civ.App.--Austin 1979, no writ),

the Court was faced with the same conten-

12a

tion that we have here; that is, that

there must be evidence showing the circum-

stances of the child or parent at the time

of the divorce or the prior order. There

was no such evidence, but the Court held

that the jury could find a _ substantial

change in circumstances based on_ the

mother's unconventional marital lifestyle

which began after the divorce. The case

is very similar to the one before us, and

the Court recited evidence that the mother

had married, divorced, remarried and di-

vorced the same man in six years. Fur-

ther, during the second go-round with her

new husband, she took the children to live

with another man. Said the Court: "It is

plain that appellant's conduct, outlined

above, occurred subsequent to the entry of

the original order. It is equally mani-

fest that such conduct constituted a

13a

material and substantial change of condi-

tions that affected appellant's situation

and the Stokes children's interest.

Wallace v. Fitch, 533 S.W. 2d 164 (Tex.

Civ.App. 1976, no writ)."" In the case

before us, Appellant's unstable lifestyle

is new and different and constitutes a

change in that it occurred after the prior

divorce. It began with her quick marriage

within the month and a quick separation,

changes of residence, the relationship

with W.H. which began after the first

divorce but before the second one, and it

continued for some eighteen months. This

lifestyle to which the child was subjected

supports the jury finding that_ the

circumstances of the child or T.A.B. have

materially changed. Direct evidence of a

change was that, prior to the divorce, the

child was taken to church but that he does

l4a

not now attend church when he is with

Appellant.

When all of the evidence is con-

sidered, we are of the opinion that it is

factually sufficient to show that, as a

result of the changed circumstances, Ap-

pellant's continued custody of the child

is injurious to the child's welfare.

"Welfare" is not defined by the Code, and

Appellant here argues that it necessarily

includes a showing of injury to a child's

"physical or emotional" welfare. Appellee

urges that the word "welfare" is not

limited to physical and emotional welfare,

but also includes the child's "moral" wel-

fare. He cites Section 14.01(b)(2) which

imposes the duty on the managing conserva-

tor to provide "moral and religious train-

ing.'' He also cites decisions that recog-

nize the morality of, and the moral envi-

15a

ronment provided by, a custodian as rele-

vant factors in determining custody.

Mumma _v. Aguirre, 364 S.W. 2d 220 (Tex.

1963), speaks of "the best atmosphere for

the mental, moral and emotional develop-

menc of the child." In De Llano v.

Moran, 333 S.W. 359 (Tex. 1960), the Court

recognized the importance of providing a

child with the "affection, care and guid-

ance that are essential to . .. physi-

cal, mental and moral development." As

the facts of this case relate to the

child's moral welfare, then, that is an

element that the jury could have consider-

ed on the issue of retention of T.B. as

custodian being injurious to his welfare.

It is but one element, however, but, con-

sidered with those which we have previous-

ly pointed out as to the overall lifestyle

to which the child has been subjected for

l6a

the past two years, it affords support for

the jury's verdict.

We are also of the opinion that

the evidence supports the jury finding on

Special Issue No. 2--that a change to the

custody of the father would be a positive

improvement. Considering all of the evi-

dence, the finding is not so against the

great weight and preponderance of the evi-

dence as to be manifestly unjust. We

agree with Appellant that che fact of the

remarriage of the husband standing alone

is not enough; it could be a good or bad

marrige as to the child's welfare. What

counts is the quality of the home estab-

lished by that marriage. The evidence is

that the husband in this case had remar-

ried, his wife has a child by a prior mar-

rige, and they have a child by this mar-

riage. They own their home and have a

17a

stable homelife. The father has been in

the same employment for five years, and

the wife does not work, but stays home

with the children. There is testimony

that the father and his new wife and chil-

dren comprise a "warm family" and a ‘well

adjusted home."' The requirement of the

Statute that there must be a "positive

improvement" invites comparison between

the environment provided by the mother and

the new environment provided by’ the

father, and the evidence demonstrates that

the child will be better off and his wel-

fare improved in the custody of the

father.

Appellant assigns error for jury

misconduct in concealment of information

by a juror on voir dire. Juror Ward did

not respond to a question by Appellant's

attorney asking the panel if any of them

18a

knew one Ron Davis. Following selection

of the jury, and prior to presentation of

the evidence, Ward and Davis were seen

engaged in conversation in the hallway by

the Court Bailiff who admonished them, and

they broke up the conversation. On motion

for new trial, evidence was presented

which shows that che relationship of the

two men was very casual; that the juror

Ward only knew Ron Davis by the name

Davis, and both men testified that their

conversation in the hallway did not

involve the case. Rule 327 of the Texas

Rules of Civil Procedure controls the

granting of a new trial for jury miscon-

duct, and, as material here, that Rule

provides that when the "ground of the

motion is misconduct of the jury . . . or

because of any communication made to the

jury or that they received other testi-

19a

mony, or that a juror gave an erroneous or

incorrect answer on voir dire examinatin,

the Court . . . may grant a new trial if

[said action] be material, and if it

reasonably appears from the evidence...

that injury probably resulted to the

complaining party." The trial Court

apparently found no misconduct because

there was no intentional failure to answer

the question, witness and the juror were

only casual acquaintances, and their brief

interlude did not include discussion of

the case. Mitchell v. Burleson, 466 S.W.

2d 646 (Tex.Civ.App. --Beaumont 1971, writ

ref'd n.r.e.). The witness, Ron Davis,

was not in the courtroom at the time of

the voir dire examination and was not seen

by the prospective juror, and it would

seem that there was no intentional

20a

concealment on his part in not responding

to the question. The trial Court was

correct in overrruling the motion for new

trial, even if we assume jury misconduct,

because its materiality and _ probable

injury were not’ established by’ the

evidence. Fountain v. Ferguson, 441 S.W.

2d 506 (Tex. 1969).

All points of error have been con-

sidered, and all are overruled. The

judgment of the trial Court is affirmed.

2la

APPENDIX B

T.A.B., Petitioner,

v.

W.L.B., Respondent.

NO. B-9589.

Supreme Court of Texas.

Oct. 22, 1980.

Appeal from El Paso Court of Civil

Appeals. Eighth Supreme Judicial Dis-

trict: Preslar, Justice.

Appeal from District Court No.

161, Ector County: McKim, Judge.

Barnes & Lewis, W. R. Barnes and

Tryon D. Lewis, Odessa, for petitioner.

Bill McCoy and John W. Cliff,

Odessa, for respondent.

PER CURIAM.

The application for writ of error

22a

is refused, no reversible error. 598 S.W.

2d 936.

This action is not to be construed

as approving the language of the court of

civil appeals that §11.13(b) of the Texas

Family Code prohibits an appellate court

from considering no evidence points

properly raised on appeal.

23a

APPENDIX C

CLERK'S OFFICE - SUPREME COURT

Austin, Texas, December 3, 1980

Dear Sir:

You are hereby notified chat

the Motion for Rehearing in the case of

No. B-9589, T.A.B. ve. W.L.B.

was this day OVERRULED.

Very truly yours,

GARSON R. JACKSON, CLERK

24a

APPENDIX D

§14.08. MODIFICATION OF ORDER

(c) After a hearing, the court

may modify an order or portion of a decree

that:

(1) designates a managing

conservator if the circumstances

of the child or parent have so

materially and substantially

changed since the entry of the

order or decree to be modified

that the retention of the present

managing conservator would be

injurious to the welfare of the

child and that the appointment of

the new managing conservator would

be a positive improvement for the

child; or

25a

(2) provides for the support of a

child, sets the terms and condi-

tions for access to or possession

of a child, or prescribes the rel-

ative rights, privileges, duties,

and powers of conservators if the

circumstances of the child or a

person affected by the order or

portion of the decree to _ be

modified have materially and

substantially changed since the

entry of the order or decree;

except that an order providing for

the support of a child may be

modified only as to obligations

accruing subsequent to the motion

to modify. (Emphasis added.)

26a