# Petition — Bowling v. Bowling

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 828

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2191%3A1. Public record. Not legal advice.