Jury Award of Primary Custody to Father Affirmed; Morality Issues Considered

Melissa Jean Garcia v. Gilbert Anthony Garcia, No. (Tex.App.- San Antonio, July 25, 2007)(Opinion by Justice Angelini)(Before Justices Stone, Angelini and Hilbig)(jury decision to award right to determine child's residence to father affirmed)
Appeal from 57th District Court of Bexar County

Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 25, 2007

AFFIRMED

This is an appeal from a divorce and conservatorship proceeding between Gilbert Anthony Garcia ("Gilbert") and Melissa Jean Garcia ("Melissa").

Factual and Procedural Background

Melissa and Gilbert met online in June of 1999. Although Melissa resided in Michigan, and Gilbert resided in Texas, they married in Michigan in June of 2000, and proceeded to live there for several years. In March of 2001, the couple had a daughter, (" I. L.G."), and in November 2002, the family moved to Texas, where they lived with Gilbert's parents. Melissa, who is a registered nurse, worked full-time, while Gilbert mainly stayed home to care for their daughter.

The couple began experiencing marital problems and in January of 2004, Melissa moved out of her in-laws' home, taking I.L.G. with her. Gilbert filed for divorce in August of 2004, and Melissa subsequently filed her own divorce petition. The trial court subsequently granted the parties' cross-petitions for divorce, and a jury designated Melissa and Gilbert joint managing conservators of their five-year old daughter, giving Gilbert the exclusive right to determine I.L.G.'s primary residence.

Melissa appeals the jury's finding that Gilbert have the exclusive right to determine the principal residence of I.L.G., arguing that: 1) this finding is based on no evidence, factually insufficient evidence, or alternatively, against the great weight and preponderance of the evidence; 2) "the jury committ[ed] harmful error in disregarding the record, the expert testimony from Eloise Gonzales and Mary Bullock, and the substantial, conclusive evidence on uncontested facts in finding that [Gilbert] . . . have the exclusive right to determine the principal residence of the Child"; and 3) this finding is not in the child's best interest. We affirm.

Standard of Review

In reviewing a legal sufficiency challenge, we determine whether the evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002). We will sustain a no-evidence point if a finding is not supported by "anything more than a scintilla of evidence." In re J.F.C., 96 S.W.3d 256, 265 (Tex. 2002) (citing Formosa Plastics Corp. U.S.A. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).

In making this determination, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827; In re J.F.C., 96 S.W.3d at 266. Evidence is legally insufficient when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810.

In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In making this review, we do not substitute our judgment for that of the jury, even if a different answer could be reached on the evidence. See City of Keller, 168 S.W.3d at 821. It is well established that jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. Id. at 819; see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Therefore, a jury confronted with conflicting evidence may choose to believe one witness and disbelieve others; it may resolve inconsistencies in the testimony of any witness; or it may accept lay testimony over that of experts. City of Keller, 168 S.W.3d at 819-20.

Discussion

In the present case, the jury found that both parents should share custody of the child and named them joint managing conservators; however, the jury also determined that Gilbert would have the exclusive right to determine the primary residence of the child. See Tex. Fam. Code Ann. §101.016 (Vernon 2002). The record reflects that the jury was confronted with conflicting evidence in this regard. On the one hand, there was evidence of the following: that Gilbert was a loving, devoted father with a plan in place for the care of his daughter; that he lived in a very well kept neighborhood within blocks of a school where he intended to enroll I.L.G.; that Gilbert was a general manager for a local fast food restaurant and worked approximately 50 hours a week; that he had been faithful to Melissa throughout their marriage; that he maintained a consistent schedule for I.L.G.; and, that he rarely went out and preferred to spend his time with his daughter. (1) There was also evidence that Gilbert, who was 51years old at the time of trial, was financially reliant upon his father, still lived with his parents and did not pay for rent or utilities, received "loans" from his father to pay his divorce attorney, and had two older children from a previous marriage who lived out of state with whom he had little or no contact until very recently. Additionally, there was testimony that Gilbert had few friends or outside interests, worked long or unpredictable hours, relied on his elderly parents to care for I.L.G., and was vindictive towards Melissa and her boyfriend.

With respect to Melissa, the record reflects the following: that she filed for bankruptcy while the divorce was pending; that while still married to Gilbert, she met a man online and had his child; that she had no plans to marry the father of her newborn; that on more than one occasion she took I.L.G. with her to meet other men she had met online; that she didn't recall the last names of these men; and, that on more than one occasion, Melissa knowingly violated a court order by allowing her boyfriend to spend the night while I.L.G. was in her custody. (2)

Melissa points to testimony by Mary Bullock (3) and Eloise Gonzales (4) that Melissa, and not Gilbert, would be better suited to determine I.L.G.'s primary residence, and argues that as experts, their testimony should be probative. Additionally, Melissa argues that evidence that Gilbert "abandoned" his two children from a previous marriage, and that he had a "vindictive hatred of [Melissa] and [Melissa's boyfriend]" conclusively establishes that the jury's finding was not in I.L.G.'s best interests. Nevertheless, it is clear that the jurors, as the sole judges of the credibility of the witnesses and the weight to give their testimony, could accept lay testimony over that of experts when confronted with conflicting evidence. City of Keller, 168 S.W.3d at 819-20. In the present case, there were a number of witnesses who testified that Gilbert was a loving and devoted parent, including Gonzales and Melissa.

Additionally, the jury also heard testimony that Gilbert's two older children lived out of state, that Gilbert regretted not trying harder to stay in touch with them, and that he had made contact with them recently and was trying to establish a relationship with them. Gilbert also testified that he took a ten-week parenting course to improve his parenting skills and that he loved I.L.G. very much.

Thus, notwithstanding the testimony by Bullock and Gonzales that Melissa would be better suited to determine I.L.G.'s primary residence, the record here reflects sufficient competent evidence to support the jury's finding that Gilbert should have that exclusive right. See Id. at 810. We may not substitute our judgment for that of the jury where it is the province of the jury to weigh the evidence, assess the credibility of witnesses, and resolve any conflicts and inconsistencies. See McGalliard, 722 S.W.2d at 697.

Moreover, in determining the best interest of the child, a number of factors have been considered, although they are by no means exhaustive. See Holley v. Adams, 544 S.W.2d 367, 371 -372 (Tex. 1976). These factors include: the desires of the child; the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the individuals seeking custody; the programs available to assist these individuals to promote the best interest of the child; the plans for the child by these individuals; the stability of the home; the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of the parent. Id.

Having reviewed the evidence under the appropriate standards, and in light of the ample evidence that Gilbert is a loving father on whom I.L.G. can depend for her physical and moral needs, we hold that the evidence is both legally and factually sufficient to support the jury's finding that Gilbert have the exclusive right to determine her primary residence and that this finding is in I.L.G.'s best interest. We overrule appellant's issue.

Conclusion

Accordingly, we affirm the trial court's judgment awarding Gilbert the exclusive right to establish the primary residence of I.L.G.
Karen Angelini, Justice

1. Indeed, Melissa did not dispute that Gilbert was a good father and testified that she had no complaints regarding how Gilbert took care of I.L.G. Gilbert, on the other hand, expressed a number of concerns that he had regarding Melissa's parenting abilities.

2. There was also testimony by both parents that they had witnessed I.L.G., at age four, "straddling the corner of the bed and grunting and groaning [and] rubbing up and down." And although Melissa testified that I.L.G. never entered her bedroom when Melissa's boyfriend stayed over, Gilbert testified that he had been faithful to Melissa and still considered himself married, notwithstanding their separation.

3. Mary Bullock was court appointed to prepare a parenting/visitation plan.

4. Eloise Gonzales was court appointed to prepare a social study.